2004 PLP 918 (CLD)

‑‑‑‑Ss. 7 & 11‑‑‑Finance of a certain amount guaranteed by the respondent‑Bank to the appellants‑‑‑Bank, however, recovering from the appellants through the Banking Court an amount higher than the finance guaranteed‑‑‑Plea of the appellants was that Bank should not recover a higher amount than that financed‑‑ Bank's record showing a call by the third party of a lower finance amount than what was being recovered from the appellant‑‑‑Failure of the Bank to show any call by third party for any further finance‑‑‑Interim decree was passed in favour of the appellants making them liable to pay only the sum financed under the guarantee by the Bank and not more than that and case was remanded to the Banking Court and leave granted to the appellants to defend against the excess amount being recovered by the Bank. Haq Nawaz Chatha for Appellants. Muhammad Farooq Badar for Respondent. Date of hearing: 5th June, 2003. JAWWAD S. KHAWAJA, J.‑‑This appeal filed by the appellants/defendants impugns the judgment and decree dated 9‑2‑2001 passed by the learned Banking Court No. 1, Gujranwala, whereby the suit filed by the respondent‑Bank was decreed for a sum of Rs.14,079,298 with future mark up etc. For the purpose of deciding the present appeal the facts of the case are straightforward. The respondent‑Bank did not advance any loan directly to the appellants/defendants. It had guaranteed the finance which had been advanced by Atlas Investment Bank Ltd., to the appellants. For this purpose the respondent‑Bank had issued a guarantee dated 9‑5‑1998 for a sum of Rs.10,445,870 in favour of Atlas Investment Bank Ltd. Learned counsel for the appellants/ defendants has argued that the respondent‑Bank could at most have filed a suit for recovery of Rs.10,445,870 which was the maximum amount payable by it to Atlas Investment Bank Ltd., under the above referred guarantee. The Bank however, filed a suit for Rs.14,079,298 which, as noted above, has been decreed prayed for.

2. Learned counsel for the respondent‑Bank argued that the said Bank had, in fact, made payment of a sum of Rs.14,079,298 to Atlas Investment Bank Ltd. However, when he consulted the Bank's record available with him, he noted that Atlas Investment Bank Ltd., had made a call on the respondent Bank for a sum of Rs.10,445,870 only. The said call was made on 8‑6‑1998. Learned counsel for the respondent‑Bank was not in a position to show if any call had subsequently been made by Atlas Investment Bank Ltd., within the validity of the. Bank guarantee issued by the respondent‑Bank.

3. In the foregoing circumstances, we are of the opinion that the appellants had raised a serious and bona fide dispute as to the claim of the respondent‑Bank exceeding the sum of Rs.10,445,

870. Learned counsel for the appellants also conceded that to the extent of Rs.10,445,870 the appellants had no serious defence and they were liable to pay the sum. In the circumstances, we modify the impugned decree and instead pass an interim decree in favour of the respondent‑Bank against the appellants for a sum of Rs.10,445,870 together with future mark up thereon. As to the balance amount of the claim of the respondent‑Bank, which is in excess of Rs.10,445,870, we grant leave to the appellants to defend the suit filed by the respondent‑Bank. For this purpose the case is remanded to the learned Banking Court for decision after allowing the parties to lead evidence M.A.W./Z‑201/L Case remanded.