1986 PLP 720 (MLD)

‑‑Ss. 5 & 7‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.3‑ Recovery of bank loan‑‑Suit‑‑Defendant‑borrower contending that Promissory Note on execution of which loan secured was without consideration and suit was incompetent under O.XXXVII, R.3, C.P.C.‑ Execution of Promissory Note and letters of guarantee by defendant not disputed and statement of account filed by bank showing that amount of loan was due and payable by defendant to plaintiff Bank‑ Statement of account filed by plaintiff alongwith plaint on oath not denied by defendant‑‑No sufficient ground for grant of leave to defend made out‑‑Application of defendant for grant of leave rejected. Mamnoon Hassan for Plaintiff. Nasrullah Awan for Defendants. Date of hearing: 30th November, 1983. This suit under summary chapter was filed originally before the Banking Court, Karachi for recovery of sum of Rs.10,93,250.21 alleged to be due against the defendants in an overdraft Current Account No. 1195. It is alleged in the plaint as security for the repayment of overdraft the defendant No.1, executed a promissory note in the sum of Rs. 2,50,

000. The initial overdraft allowed in favour of defendant No.1 was Rs. 2,50,000 but the overdraft limit was subsequently enhanced to Rs. ten lac. As a result of enhancement of this limit the defendant No.1 executed a further promissory note on 6‑11‑1979 for Rs. 10 lacs and as further security the defendant No.1 also hypothecated goods, stocks and movable properties. To further secure the above overdraft account defendants 2, 3, 4 and 5 executed letters of guarantee in favour of the plaintiff and the defendant No.4 in addition to it also created an equitable as well as registered mortgage of two plots of land bearing No. 6/95(1) and G/25 (11) each admeasuring 1,000 square yards situated at 5‑Gizri Street, Pakistan Defence Officers' Co‑operative Housing Society Karachi, in favour of plaintiff. Only the defendants 1,1 2 and 5 have applied for leave to defend the above suit whereas nab application has been filed on behalf of defendants 3 and

4. The only ground urged in the application on behalf of defendants 1 to 5 is that the promissory note is without consideration and suit cannot be filed under Order XXXVII, rule 3, C.P. C. The execution of the promissory note and the letters of guarantee by the defendants are not disputed. The statement of account filed by the Bank shows that on 31st December, 1981 a sum of Rs.. 10,93,250.21 was due and payable by the defendant No.1 to' the plaintiff. The statement of account filed by the plaintiff alongwith plaint which is on oath has not been denied by any of the defendants. I, therefore, find not sufficient ground for grant of leave to defendants 1, 2 and

5. The application filed by them is accordingly rejected.

2. The learned counsel for the plaintiff has placed before me the original promissory notes, dated 12th July, 1979 and 6th November, 1979 alongwith the letters of the same date forwarding the promissory notes to the plaintiff. He has also filed the original letter of guarantee executed by defendants 1 to 5 in favour of the Bank. He has also placed the original sub‑lease granted in favour of the defendant NO‑1 in respect of two properties mentioned in the plaint alongwith original memorandum for deposit of these documents, dated 4‑10‑1980. The original Registered Mortgaged Deed is also filed. I, therefore, hold that on 31st December, 1981 a sum of Rs. 1,093,250.21 was due and payable by the defendants jointly and severally to the plaintiff. However, for the present I will only grant a preliminary decree in Form 5‑A, against the defendant No.4, who is the mortgagor of the properties. After preliminary decree has been prepared and a final decree is also passed and after sale of the mortgaged property, if any amount is still found due and payable to the plaintiff, the plaintiff will be free to apply for a personal decree against the remaining defendants. The plaintiff will also be entitled to the costs of the suit and interest at the rate claimed in the suit. M. Y. H. Suit decreed.