1988 PLP 72 (MLD)

This is a petition under Section 39 of Industrial Development Bank of Pakistan Ordinance, 1961.

2. Case of the petitioner is that at the request of respondent it had granted to respondent No.1 various foreign currency and local currency loans against security of the fixed assets of respondent No. 1 and guarantees issued by respondents Nos. 2 to

6. The details of loans and guarantees are given in the main petition and the amended petition. The petitioner has alleged that the above loans have become over due and therefore notice was issued to the respondents for payment of the same. The bank is now entitled to a sum of Rs.62,25,850. 30 in the local currency account D.M,114 9,98.95 in the foreign currency account and Rs. 7,996.37 being rupee charges in foreign currency loan as on 31-12-1976. Hence a prayer for attachment and sale of the property belonging to respondent No.1 and or respondent No.7 for realization of the above amount with interest from 1-1-1977 till realization at 13% per annum with quarterly rest on local currency and six monthly rests on the foreign currency loan etc.

3. The respondent No.1 was served and he has chosen to remain absent. Respondents Nos. 2 and 3 were also served. They had engaged an Advocate, who had withdrawn his power on 19-10-1980. Mr. Naimur Rehman is appearing for respondent No.4.

4. Respondents Nos. 2,3,5 and 6 were again served by publication on 13-4-1984 but they have chosen to remain absent. Defendant No.7 has been dropped r by this Court on 4-4-1979 because of denationalised. None of the defendants led any evidence. The plaintiffs have examined their Manager Legal Department Rafaat Saeed Qureshi and have produced all the documents in original photo copies of which were filed by them alongwith the plaint. Advocates for no defendant except the Advocate for defendant No.4 have cross-examined this witness. It would therefore appear that the above evidence of the plaintiff has gone unchallenged and unrebutted except by defendant No-4. It is contended by Mr. Naimur Rehman that the defendant No.4 had guaranteed the original loans as appears from paras. 15 and 27 of the plaint. In para. 29 of the plaint it is stated that the loan was repashed into a local currency loan of Rs.34,61,

500. This loan was further repashed according to paras. 37 std 40 of the plaint after the said guarantee was furnished by respondent No.4. Mr. Naimur Rehman has in his cross-examination referred to Exh. 4/32 to the witness who had admitted that loan amounts were repashed by bank at 'the request of respondent No.1. Fresh documents were obtained on repashment of the loans. This included the guarantees as well. On perusal of the documents filed by the petitioner in the Court the witness made it clear that there was no fresh document of guarantee, which might have been executed by the respondent No.4 after rescheduling of the loans. He has also repeated that no fresh document was executed by respondent No.4.

6. I am, therefore, satisfied that whereas the petitioner has proved its claim against respondents Nos.1,2,3,5 and 6, it has failed to prove its claim against respondent No.4. I therefore, confirm the order of ad interim attachment and direct the sale of the attached property of respondent No.1 if the amount of Rs.62,25,850.30 in local currency and an amount equivalent in Pakistani .currency to the foreign currency D.M. 1,14,998.95 and an amount of Rs. 7;996.37 being A rupee charges are not paid within a period of six months alongwith interest at 13% per annum with effect from 1-1-1976 till the realization of the decretal amount with quarterly rests on local currency loan and with 6 monthly rests on foreign currency loan. The costs of the petition shall be borne by respondents other than the respondent No.4. If the petitioner proceeds against the guarantees on account of shortfall, if any, he shall not proceed against respondent No.4. H.B.T./I-44/K Application allowed/order accordingly.