2001 PLP 1137 (MLD)

‑‑‑‑S. 9‑‑‑Suit for recovery of Bank Loan‑‑‑Mortgage, basis of loan ‑‑‑Effect‑‑ Where there was no guarantee and the defendants had, been sued on the basis of mortgage, the defendants would not be liable beyond the sale or value of the mortgaged properties‑‑‑Suit was decreed accordingly. Ismail Merchant, Advocate. A.H. Mirza, Advocate. M. Saleem Thephdawala, Advocate This is suit filed by the H.B.L. against the Pakistan National Textile Mills Ltd. and 7 others. It is stated that there is no claim made against the defendant No.8, in that, the defendant No.8 is only a Mortgagee and has therefore, been made a party in this suit. As no claim or prayer has been made against the defendant No.8, I propose to delete the name of defendant No.8 from the array of the defendants. In the circumstances, I order that the name of the defendant No.8 deleted, and the suit to proceed against the rest of the defendants. I dismiss the application C.M.A. No.7753 of 2000 that has become infructuous and is disposed of accordingly. The plaintiff in the suit has stated that the defendants had taken and finance from the plaintiff. The said finance was taken upon the agreement entered into between the parties. The agreement has been filed alongwith the plaint as Annexure "A" and is dated 15‑3‑1996. It has been stated that the customer has agreed to sell the defendant No. 1 raw‑materia1/finishing goods/spares/machinery etc. for a total sale consideration of Rs.25,000,000 and the customer namely, the defendant No. 1 agreed to buy‑back the aforesaid goods at a repurchase price of Rs.33,625,

000. It is in the agreement that a Prompt Bonus Payment has also been agreed in the sum of Rs.3,150,

000. The agreement has been signed and witnessed and has not been denied by the defendant No. 1 nor the other defendants. There is on record a demand promissory Note dated 15‑3‑1996 for the repurchase price amounting to Rs.33,625,

000. In addition, the defendants Nos.2 and 3 have executed guarantees, whereby they have agreed that in the event of non payment by the defendant No.1 and upon notice for repayment, they shall within 2 days of such demand, pay to the plaintiff the repurchase, price aforestated. It is stated that the defendants Nos.4, 5, and 6 in addition to the defendants Nos.2 and 3 are partners of defendant No.7, namely, Kurdistan Trading‑Corporation who is a Mortgager of the entire properties which have been kept as security for the repayment of the finance granted by the plaintiff to the defendant No.

1. These facts have not been denied. The only dispute that has been raised is in regard to the quantum of the payment and nothing else. Such can be calculated and determined without leading evidence. In these circumstances, there being no genuine and bona fide dispute as regards the finance and transactions. I dismiss C.M.A. No.3084 of 2000 and refuse to grant leave to defend the suit. Upon dismissal of the application, I have proceeded to look into the accounts. The defendants notwithstanding their application having being dismissed, in view of the case of City Bank v. Tariq Hassan Siddiqui reported as PLD 1999 Karachi Page 304 are allowed to appear and participate for the purpose of determining the actual amount payable by the defendants to the plaintiff. The defendants and the plaintiff have set down and have themselves determined the actual amount paid. Both these officers, namely, Muhammad Amjad and Muhammad Afzal are present. Attorney of the plaintiff has also been present in determining the actual account payable in terms of the judgment of Dr. Aslam Khaki v. Syed Muhammad Hashim PLD 2000 SC

225. It is in the light of the aforesaid judgment that mark‑up on mark‑up cannot be allowed. Thus, because of the non‑allowance of the said amount that the summary of account has been drawn up. Such was done on the directions of this Court. The‑ following statement of the Account has, therefore, been prepared:‑‑ Buy‑Back Price Rs.33,625,000 Less Prompt Payment Bonus Rs.3,150,000 Total Rs.30,475,000 Less: Repayment Rs.3,820,000 Net Outstanding. Rs.26,655.000 In view of the above amount outstanding as on the date hereof is Rs.26,655,

000. The suit is, therefore, decreed against the defendants Nos. 1 to 3 for the said amount of Rs.26,655,000 with mark‑up drawn at the rate of 17 % per annum from the date of the suit till payment. There shall, however, be no rest and the mark‑up shall be charged on the date on which the final payment is made and shall not be compounded. The suit is decreed with costs. As regards the defendants Nos.4 to 7, as there is no guarantee and have been sued on the basis of the mortgage, they shall not be liable beyond the sale or value of the mortgaged properties. The suit is also, therefore, decreed for the sale of mortgage properties in the event of non‑payment by the defendants Nos. I to

3. The payment shall be made within 30 days. The provision of section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, shall be deemed to be applicable after the expiry of 30 days hereof, and that the plaintiff may file execution after that date. The suit is, therefore, disposed off accordingly. Q. M. H. /M. A. K./H‑29/K Suit decreed.