1994 PLP 244 (CLC)

Mansoorul Arfm for Plaintiff. Raja M. Akram for Defendants Nos.l, 7 and

8. This is an application by the defendant No.l for leave to appear and defend the suit. The application is, admittedly, barred by limitation and since I propose to dismiss the application made by the defendant No.l alongwith the other defendants for condonation of delay, this application is dismissed as time‑barred.

2. This is an application by the defendant No.3 for leave to appear and defend the suit. Mr. Raja M. Akram says that he has been informed that Dr. Pervez Hassan, who appears for the defendant No.3, is out of the country. The hearing of this application is, therefore, adjourned to a date in office.

3. This is an application by defendants Nos.4, 7 and 8 for leave to appear and defend the suit. This application is, admittedly, barred by limitation and since I propose to dismiss the application made by these defendants alongwith defendant No.l for condonation of delay, this application is dismissed as time‑barred.

4. This is an application by the defendants Nos. 1, 4, 7 and 8 for condonation of delay in filing the applications for leave to appear and defend the suit. The facts relating to the service of the summons are recorded in my order dated the 10th August, 1992. It appears that the summons by registered post was despatched on the 18th August, 1985, and has not been returned undelivered. The summons was, admittedly, published in the `Morning News' on the 23rd August, 1985, and the applications by the defendants, for leave to appear and defend the suit, were filed on the 12th September, 1985. Mr. Raja M. Akram submits that until the decision of the Supreme Court reported in PLD 1990 SC 497, the general impression was that an application for leave to appear and defend the suit could be filed within ten (10) days from personal service. No material to substantiate existence of such a general impression has been brought on record but in this case the defendants were admittedly not served by bailiff and, therefore, the question of filing an application within ten (10) days of personal service is irrelevant. The fact remains that the summons by registered post were dispatched on the 18th August, 1985, and were obviously served on the defendants. Mr. Raja M, Akram says that there is no material on record to show when the summons by registered post were served but Mr. Mansoorul Arfin submits, rightly, that the summons which were dispatched on the 18th August, 1985, must be deemed to have been delivered within at the most 2 or 3 days. The application for leave to appear and defend the suit was, therefore, filed more than 10 days after the service of summons by registered post and there is no explanation for the delay. In the circumstances, this application is dismissed.

5. Mr. Mansoorul Arfin states that the defendant No.6 has died since the institution of the suit and that he is awaiting information from the plaintiff regarding the LRs. of the deceased defendant No.6 to enable him to apply to implead the L.Rs. In the circumstances, the hearing of this application is adjourned.

6. Since the defendant No.2 has faded to furnish security and the applications of the defendants Nos.l, 4, 5, 7, 8, 9 and 10 for leave to appear and defend the suit have been dismissed, the suit as against those defendants has to '4 be decreed. The defendant No.l is the principal borrower and the defendants Nos.2, 3, 5, 6, 9 and 10 have been sued as guarantors. Mr. Arfin submits that the defendants Nos.4, 7 and 8 are also liable as guarantors and refers to the averment in para. 1 of the plaint wherein the defendants Nos.4, 7 and 8 have been mentioned as guarantors. He also refers to the documents (Annexures P/14, P/15 and P/16 to the plaint) signed by the defendants Nos.4, 7 and 8 to contend that these amount to guarantees by the defendants Nos.4, 7 and

8. By these documents, the defendants Nos.4, 7 and 8 confirmed having lodged their shares with the plaintiff and authorised the bank to retain the same as security, inter " "in support of personal guarantees given by me in connection with the loans advanced" by the plaintiff to the defendant No.l Mr. Arfin submits that this should be constructed as a confirmation of an oral guarantee by the defendants Nos.4, 7 and

8. However, there is no plea in the plaint that these defendants gave any oral guarantees. The defendants Nos.4, 7 and 8 are, therefore, not personally liable but the shares and securities pledged by them are liable to be sold for recovery of the decretal amount. In the circumstances, the suit is decreed against the defendants Nos.l, 2, 5, 9 and 10 for Rs. 8,62,50,566.89 with interest thereon at the rate of 4% above bank rate with minimum of 14% per annum with quarterly rests from the date of the suit till payment and costs of the suit. Mr. Arfin submits that in terms of the recent amendment to the Banking Companies (Recovery of Loans) Ordinance, 1979, the decree has to be executed forthwith. It is, therefore, ordered accordingly. With regard to the defendants Nos.4, 7 and 8, the prayer is that the shares and bonds pledged by those defendants, mentioned in Annexure P/27 to the plaint, be sold by directing the Nazir to sign the necessary transfer deeds as well as discharge instruments as may be necessary for the sale of these securities. Since the defendants Nos.4, 7 and 8 are not personally liable, the decree against them shall be that the shares and bonds mentioned above be sold as prayed for recovery of the decretal amount as mentioned hereinabove. H.B.T./U‑140/'K????????????????????????????????????????????????????????????????????????????????? Order accordingly.