1988 PLP 1301 (MLD)

AJMAL MIAN, J.‑‑This appeal is directed against a judgment/order dated 16‑8‑1983 passed by the learned Special Judge, Special Court (Banking) for Sind at Karachi, in Suit No.85 of 1982 which was for recovery of a sum of Rs.1,72,219 alongwith interest at the rate of 13% per annum from the date of the suit till recovery and also the costs from the appellant and respondent No.2.

2. In support of the above appeal Mr.J.H.Rahimtoola, learned counsel for the appellant has vehemently urged inter alia as follows:‑ (1) That the alleged liability of the appellant was to the extent of Rs.75,000 and not any more. (2) That the claim against the appellant was time barred. (3) That the appellant stood discharged. (3)(a) In support of the first contention Mr.J.H.Rahimtoola has ' referred to the para. 3 of the plaint, the guarantee from and the statement of accounts. It has been submitted by him that from the statement of the accounts, it is evident that respondent No.1 Bank advance4 loan more than Rs.75,000 which was original loan amount and, therefore, the appellant is not liable for any alleged amount more than Rs.75,000. (3)(b) On the other hand Mr.Habibullah Samo, learned counsel for the respondent, has referred to para 3 of the guarantee form. He contends that the Bank was entitled to extend the time of the loan amount or even the limit of tt. ‑credit without consent of the appellant.

4. Adverting to the second and third submissions Mr.J.H.Rahimtoola has pointed out that the guarantee was executed on 25‑1‑1978, whereas the suit was filed after the expiry of 3 years, therefore, it is time‑barred. He has also submitted that since there was variation limit of the loan amount and as to the period, the appellant stood discharged as a guarantor.

5. In addition to the above points we have also noticed that the appellant had raised certain other pleas before the learned Special Judge, which could not have been decided without recording of the evidence. The appellant had made out a case for grant of conditional leave. We are, therefore, of the view that the learned Special Judge was not justified in declining leave and should have granted leave conditionally.

6. We, therefore, allow the appeal with no order as to costs and set aside the judgment/decree against the appellant and grant to him conditional leave subject to furnishing security to the satisfaction of the Nazir of this Court for a sum of Rs.1,00,000 (Rupees one lac only) within a period of one month. The c is remanded to the learned Special Judge for trial upon furnishing of the above security by the appellant. M.Y.H./M‑474/K Case remanded: