1992 PLP 1641 (CLC)

Zahid Hussain Burhani for Plaintiff. U. Niamat Moulvi and Zafar Alam Khan for Defendants. Date of hearing: 24th March, 1987. The defendant No.10 has filed this application for leave to appear and defend the suit. The plaintiff has made a claim against defendant No.10 on the ground that he was appointed clearing and forwarding agent in terms of agreement Annexure `W 1' to the plaint. 1t is alleged that the goods were delivered to the defendant No.10 for custody but in collusion with defendant No.1 the goods were lost or alleged to have been stolen. In this regard the report was also lodged with the police. The learned counsel for the plaintiff contended that due to negligence of the defendant No.10 and breach of the agreement the plaintiff has suffered loss of Rs.1,749,887.37. Mr. Moulvi the learned counsel for the defendant No.10 has contended that the defendant No.10 does not fall with the definition of the "borrower" and therefore the provisions of the Banking Companies (Recovery of Loan) Ordinance, 1979 will not apply. Mr. Zahid Hussain Burhani the learned counsel for the plaintiff has referred to section 2 (b) which defines borrower as follows: "Borrower means a person who has obtained a loan from the banking company and includes a surety or indemnifier." The contention raised by Mr. Niamat Moulvi Advocate requires consideration and it involves interpretation of statute as well. Prima facie it seems that surety or indemnifier should be in respect of loan advanced to a person. The case against defendant No.10 is based on its negligence and breach of its contractual duties in collusion with the defendant No.l. The pica raised by the defendant No.10 affords a plausible defence. I therefore grant unconditional leave to defendant No. 10 to appear and defend the suit. Written statement to be riled within three weeks.

2. Mr. Zafar Alam Khan Advocate requests for time to file additional affidavit in support of his application. Adjourned.

3. The plaintiff has filed this suit against the defendants in which the defendant No.4 has been alleged to have deposited the title deed of his property mentioned in paragraph 7 (iii‑a) and (iv‑a). It is also alleged that the defendant No.4 had executed a power of attorney in favour of the defendant No.1 who had deposited these documents of title as security for repayment of loan. Copy of the memo for deposit of title deed has been produced by the plaintiff. According to Mr. Burhan Advocate it has not been executed by defendant No.4 or his attorney. The defendant No.4 has filed this application for grant of (cave to appear and defend the suit on the ground that he is, not concerned with the properties, nor he is owner of both the properties. He had never executed power of attorney in favour of defendant. No. l and no mortgage was created by deposit of title decd. In fact his plea is that he is not the owner of the said properties and has nothing to do with them. The learned counsel for the defendant No.4 has referred to the allotment letter and stated that this property was never allotted to the defendant No.4. The learned counsel also produced today two certificates, from K.D.A. copies of which have been supplied to the learned counsel for the plaintiff. From these documents it is clear that these properties were never allotted or have been transferred in the name of the defendant No.4. The learned counsel for defendant No.4 has referred to the photo copy of the allotment letter filed alongwith the plaint which bears the photograph of the allottee. Mr. Zafar Alam Khan, Advocate has stated that he has seen defendant No.4 and can say that this photograph is not his photograph. In these circumstances the defendant No.4 has made out a strong defence. He is allowed unconditional leave to appear and defend the suit. Written statement to be filed within three weeks. A.A./B‑223/K Unconditional leave granted.