1984 PLP 1936 (CLC)

This suit has been brought by the plaintiff bank for recovery of Rs. 80,609.90 with the prayer that (i) decree may be passed against the defendants, for the aforementioned amount jointly and severally with cost and interest at 13 per cent per annum with quarterly rests from the date of suit till payment and (ii) for a decree under Order XXXIV, C. P. C. for sale of the mortgaged property against the defendant No.

1. The facts briefly stated are that persuant to scheme promulgated for giving loans to its employees the defendant No. 2 then in the employment of the plaintiff‑bank, obtained a loan of Rs. 80,000 from the plaintiff. The said loan was agreed to be repaid within 20 years at the rate of Rs. 340 per month on the condition amongst others that the plaintiffs‑bank would be entitled to recall the loan in full. The defendant No. 1 who is the wife of the defendant No. 2 by a deed, dated 22‑5‑1976 duly registered, mortgaged, in favour of the plaintiff, her property, bearing Plots Nos. 48 and 49, Survey Nos. 29, 30 and 41 situated in Deh Mehran. Tapo Malir, Model Colony, Karachi fully described in the Schedule to the said mortgage deed, as security for the repayment of the aforementioned loan, interest and other charges The said mortgage deed vide sub‑clause (d) of clause 10 reserved a right to the plaintiff‑bank to recall in full and require the mortgagor forthwith to repay the entire sum outstand ing against the mortgagor if the mortgagor's husband died or his employment was terminated either by resignation, dismissal, or retrenchment for any other whatsoever. Clause 10 further provided :‑

"In the event of the bank recalling the loan in full as above, the bank shall be entitled to charge interest at the rate of : 3 % per annum from the date of recall or the termination of the employment of the officer mortgagor's husband, whichever is earlier, on the sum outstanding against the mortgagor." The employment of the defendant No. 2 ceased as from 25‑11‑1977 with the plaintiffs. However the amount outstanding in the loan account was not repaid except some instalments at the rate of Rs. 340 p.m. which had been deducted under the instructions of the defendant No. 2 The plaintiffs claim to be entitled to charge interest at the rate of 13 per cent per annum on the amount then outstanding from the defendant No. 2.

2. It is the case of the plaintiffs that besides the aforementioned mortgage deed executed by the defendant No. 1, promissory note dated 9‑3‑1976 for Ra. 80,000 payable on demand to the plaintiffs was also executed by the defendant No.

2. Copies of the mortgage deed and the promissory note were produced as Annexures 'A' and 'B' to the plaint, and their originals have been produced in the Court at the hearing.

3. The claim made by the plaintiffs is fully supported by the averments made in the plaint duly verified oath by Syed Ziauddin, Principal Officer and Attorney of the Plaintiffs and also by registered deed of mortgage executed by the defendant No. 1, and the promissory note dated 9‑3‑1976 executed by the defendant No.

2. The certified copy of the statement of accounts (Annexure 'C' to the plaint) shows that as on the date of filing of the suit the defendant No. I was liable to pay Rs. 80,609.90 to the plaintiffs.

4. The case was called for hearing today but the defendants though served with the summons remained absent. The case has thus been ordered to proceed ex parte against them and the facts stated by the plaintiffs nave remained unrebutted. I accordingly find that the claim of the plaintiffs against the defendants for recovery of Rs. 80,609.90 stands fully proved. The suit is therefore decreed in favour of the plaintiffs against the defendants jointly and severally for Rs. 80,609.90 with costs and interest at the rate of 13 per cent per annum from date of suit till payment. A preliminary decree under Order XXXIV, C. P. C. in respect of the property mortgaged, (to be drawn in Form 5‑A, Appendix 'D' to the Schedule of the C. P. C.), is also passed as prayed against the defendant No. 1 for recovery of the amount decreed.

5. It may be mentioned here that the plaintiffs have claimed interest at the rate of 13 per cent per annum with quarterly rests from the date of the suit till payment. A perusal of the mortgage deed however would show that it provides that the plaintiffs shall be entitled to charge interest at the rate of` 13 per cent per annum from the date of recall of the loan or termination of the employment of the officer (mortgagor's husband) whichever is earlier on the sum outstanding against the mortgagor. Since there is no provision in the deed for charging interest with quarterly rests, I have allowed simple interest at the rate of 13 per cent per annum only. M. B. A. Suit decreed