1983 PLP 3130 (CLC)

Nooruddin N. Ramzan for Appellant. . Mamnoon Hussain for Respondents: Date of hearing : 25th January, 1983. AJMAL MIAN, J.‑This is a High Court Appeal against the order dated 18th October, 1981 passed by a learned Single Judge of this Court to Suit No. 282/77 granting conditional leave to defend, the suit, to the present appellant. The relevant facts leading to the filing of the above appeal are that respondent No. I filed suit fur recovery of Rs. 22,59,483.97 under Order XXXV11, rule

3. C.P.C. of the basis of a promissory note executed by the appellant. The appellant filed an application for leave to defend the above suit, which was granted conditionally on furnishing security to the satisfaction of the Nazir of this Court. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal it has been urged by Mr. Nooruddin N. Ramzan, learned counsel for the appellant that since the loan amounts were drawn against the security of the shares and a bungalow in respect of which an equitable mortgage was created, the aforesaid suit could not have been filed on the promissory note. It has been further urged by him that the suit amount is an inflated amount. On the other hand, it has been urged by Mr. Mamnoon, learned counsel for respondent No. l that no specific entry in the statement of accounts annexed to the plaint was denied by the appellant and the question as to whether the suit amount is due or not will be an issue at the trial of the suit. It has been further contended by him that the question, as to whether respondent No. 1 can file the above suit under Order XXXVII, C. P. C. would also be an issue at the trial.

3. In our view the grounds urged by the appellant are not such which warranted granting of an unconditional leave to defend the above suit. The discretion exercised by the learned Single Judge cannot bet said to be arbitrary or capricious. However, we are inclined to modify the order to the extent that in case the appellant's wife, respondent No. 2 is willing to tender the aforesaid mortgaged bungalow as a security, the appellant may tender the above mortgaged bungalow alongwith some other property in order to cover the suit amount as a security to the satisfaction of the Nazir of this Court. Since the equitble mortgage in respect of the above bungalow was created with the object to provide security against the loan to the extent of Rs. 3 lacs and as prima facie the suit amount covers the above secured amount of Rs. 3 lacs, it wilt be just and proper to allow the appellant to tender above bungalow in case his wife is willing, as a security alongwith other property to cover suit amount without prejudice to respondent No. 1's rights as mortgagee, we order accordingly. We may clarify that it will be open to respondent No. I to raise any objection sustainable in law to the tendering of the aforesaid bungalow as a security. We would also grant two months time froth today to the appellant to furnish the security in the above terms.

4. With the above modification the appeal stands disposed of with so order as to costs. S. Q. Order accordingly.