2015 PLP 158 (CLD)

MIAN SAQIB NISAR, J.

This appeal, with the leave of the Court, entails the facts, in that, respondent-bank provided a financial facility to Messrs Rehber Seed Corporation, respondent No.2, a partnership firm, of which the appellant along with respondents Nos.3 and 4 were the partners. The appellant besides being the partner also stood as guarantor and mortgaged his property for the repayment of the aforesaid facility. However, as a default was committed in settling of the loan, thus constraining the respondent-bank to initiate a suit for recovery against the said firm, as also its partner(s)/mortgager(s)/guarantor(s). The appellant thus being a defendant in the suit filed a leave application as required under the relevant law, but while dismissing such application, the suit has been decreed and the appeal of the appellant has failed. Leave in this matter was primarily granted to examine the pleas raised; if the appellant on 21-6-2003 had apprised the bank that the entire loan liability of the firm has been cleared and, therefore, he shall not be liable for any further financing made to the firm, and that any subsequent amount availed by the firm i.e. Rs.14,00,000 on 3-7-2003 would not render the appellant liable as the borrower/customer; furthermore, if the case set out by the bank in reply to the leave application, as also the documents attached thereto, could not be taken into consideration by the Court for the purposes of refusing the leave to the appellant.

2. Heard. Notwithstanding the fact that the amount, of Rs.14,00,000 was availed by the firm after the said letter dated 21-6-2003, yet the fact remains that the appellant was one of the partners of the said firm throughout, even at the time when further disbursement of Rs.14,00,000 was made to the firm, as there is neither any proof on the record nor this is the case of the appellant, that the aforesaid firm was dissolved at the time of such disbursement either through some dissolution instrument between the partners or by any other legal mode, therefore the appellant irrespective of such a letter dated 21-6-2003 and also not even being a mortgagor or a guarantor of the finance of Rs.14,00,000 shall be liable jointly and severally to discharge the liability of the firm, as a partner thereof. The argument, that the appellant had a dispute with the other partners of the firm, therefore his liability shall come to an end when he apprised the bank in that behalf, suffice it to say, that even in such a situation, the appellant not be exonerated and discharged of his liability as partner of the firm, till the time the firm remains intact. And as stated earlier it is not shown to have been legally dissolved (note:- this was not even the case of the appellant throughout).

3. As regards the plea that the bank in reply to the leave application of the appellant, made some averments and brought on record certain documents which could not have been considered by the Court, it may be held that the leave application of the appellant for all intents and purposes was a written statement, and the reply thereto was a replication of the bank, these two along with the plaint constituted the pleading of the parties, accompanied with the supporting documents and it has not been shown to us by the appellant's counsel if any law debarred the Court that at the time of considering the leave application of the defendant, such pleadings as a whole and the documents attached thereto, which were available before the Court cannot be looked into. In the light whereof, this appeal has no merit and is accordingly dismissed. C.M.A. No.342-L of 2012

4. In view of the dismissal of the appeal, this application is rendered infructuous. Dismissed accordingly. MWA/M-50/SC Appeal dismissed.