1989 PLP 337 (MLD)

‑‑‑S.2‑‑Civil Procedure Code (V of 1908), O. XXXIV, Rr. 1 & 2‑‑Suit for recovery of amount and sale of mortgaged property‑‑Statement of account, showing amount due and payable by defendant/borrower to plaintiff‑Bank, filed alongwith plat, was not denied by any of defendants‑‑Defendants, otherwise acknowledging their liability to pay amount due, made no payment to plaintiff- Bank to meet their liability on demand‑‑Court granted preliminary decree against mortgagor defendant to the effect that amount claimed by plaintiff‑Bank was due and payable by defendants jointly and serverally to plaint Bank with costs and at prescribed rate of interest from date of suit till realisation M. Arfin for Petitioner. Nemo for Respondents. Date of hearing: 11th February, 1988. This is a suit filed by the plaintiff‑Bank under Order XXXIV of the Code of Civil Procedure for the recovery of Rs. 16,74,847.58. The defendants had and still have with the plaintiffs Juna Market Branch Small Scale Industries IDA Account No. 1, in the name of the defendant No.

1. The plaintiff‑Bank sanctioned to the defendants on or about 26‑9‑1983 a loan in the sum of Rs. 7,90,000 which the defendants utilised in full from their abovesaid account. It is alleged in the plaint that as security for repayment of the plaintiffs' dues, the defendant No. 4 executed a promissory note dated 26‑9‑1987 for an amount of Rs. 7,90,000 payable on demand to the defendant No. 4 by the defendant No. 1 and the defendants 2, 3 and

5. As further security for repayment of the plaintiff's dues, the defendant No. 4 by a mortgage deed dated 2.5‑9‑1983 created a simple mortgage in favour of the plaintiff over plot No. 58, Sector 27, measuring 2222.22 Sq. Yds. or thereabout situated in Koran 'Industrial Area, together with constructions structure,, fixtures, fittings, machinery thereon. The said mortgage deed was duly registered with Sub‑Registrar `T' Division, II, Karachi at No. 4171 at pages 134 to 139, Volume 2771 of Book No. 1 Additional. The initial limit was Rs. 7,90,000, but the limit was subsequently enhanced to Rs. 14,90,

000. As a result of enhancement of the limit the defendant No. 4 executed a further promissory note dated 15‑10‑1984 for Rs. 14,90,000 and as further security the defendant No. 4 created second mortgage by way of equitable mortgage by depositing title deed in original of the abovesaid property with the plaintiff. The defendants under the signature of their partner the defendant No. 4 acknowledged their liability from time to time by executing and delivering to the plaintiff balance confirmation slip for Rs. 14,80,117.08 as on 30th December, 1985, balance Confirmation slip for Rs. 15,42,654 as on 30‑12‑1986 and balance confirmation slip for Rs. 16,29,663.50 as on 30‑6‑1987. The defendants made no payments to meet their liability on demand and by 30th September, 1987 a sum of Rs. 16,74,847.58 fell due. Hence the suit for Rs. 16,74,847.58 with costs and future interest at the rate of 14 per cent. per annum with quarterly rests. None of the defendants have applied for leave to appear and defend the suit. The statement of account filed by the plaintiff‑Bank shows that on 30‑9‑1987 a sum of Rs. 16,74,847.58 was due and payable by the defendants to the plaintiff. The statement of account filed by the plaintiff alongwith the plaint which is on oath has not been denied by any of the defendants. The learned counsel for the plaintiff has placed before me the photostat copy of promissory notes dated 26‑9‑1983 and 15‑10‑1984. He has also placed the photostat copy of original registered mortgage deed, and photostat copy of memorandum for deposit of these documents. I, therefore, hold that as on 20‑9‑1987 a sum of Rs. 16,47,847.58 was due and payable by the defendants jointly and severally to the plaintiff. However, for the present I will only grant of preliminary decree in Form 5‑A, against defendant No. 4, who is the mortgage the property. The plaintiff will also be entitled to costs and interest at the rate of 14 per cent from the date of the suit till realisation. H. B. T /N‑151/K Order accordingly.