IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. B-184 of 2009
Plaintiff:- NIB Bank Ltd, its registered office at
Muhammadi House, I.I. Chundrigar Road, Karachi and a branch, known as Korangi Branch, Karachi, through Syed Mamnoon Hasan, Advocate for the plaintiff.
Defendants 1) M/s. BROADTEX (PVT) LTD,
2) Mr. Anwar Ali S/o Sarwar Ali
3) Mr. Sarwar Ali S/o Remat Ali.
Office at Business Plaza, Mumtaz Hasan Road, Karachi, presently at A-213, Block-C, Gulshan-e-Jamal, Rashid Minhas Road, Karachi
None present for the defendants.
Date of Judgment 05.04.2010
J U D G M E N T
1. The plaintiff filed the suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the defendants for the recovery of Rs.110,055,071/-. The plaintiff is a Banking Company having its registered office at Karachi and a branch known as Korangi Branch, Karachi. The defendant No.1 is a private limited liability Company incorporated under the Companies Ordinance, 1984, the defendant No.2 is the Chief Executive/Director of the defendant No.1 while the defendant No.3 is the Director of the defendant No.1. On 15.5.2006 the plaintiff at the request of the defendants sanctioned/granted financial facilities viz (i)Foreign Bill Discount (FBD) Rs.15.00 (M) @ 3MKIBOR+3.1% (ii) ERF-1 Rs.75.00 (M) @ SBP+1%, (iii) FAFB Rs.30.00 (M) & (iv) Performance Guarantee Rs.10.00 (M). The defendant No.1 by way of acknowledgement and as security for the repayment of the aforesaid financial facilities with mark up thereon executed letter of hypothecation in favour of the plaintiff. As further security for the repayment of the said financial facilities existing or future debts the defendant No.3 created equitable mortgage in favour of the plaintiff by way of deposit of Title Deeds relating to his properties viz (i)property measuring 17 Kanal-18 marlsas, bering Khewat No.99, Khatooni No.256, Khasra No.3800 (2 Marlsas, 2/22 share out of total property measuring 1K-2M), 3801 (OK-7M. 7/93 share out of total property measuring 1K-12M), 3799 (14 Kanal 3 Marlas) situated in Revenue Estate Kasoor Baroon Jadeed Urban Tehsil and District Kasur with all its present and future superstructures, buildings, fittings and (ii)Property measuring 3 Kanal 4 Marlas, bering Khewat No.99, Khatooni No.256, Qita 1, Khasra No.3798 (1K-9M.10/11 share, out of total property measuring 1K-12M, 3800 (1K-12M, 35/115 share out of total property measuring 1K-15M) Qita No.2, Khasra No.3801 (4K-13 M), situated in Revenue Estate Kasur Baroon Jadeed Urban Tehsil and District Kasur with all its present and future superstructures, buildings, fittings and fixtures (the mortgaged properties) and by Memorandum of Deposit of Title Deeds dated 1.11.2006. As further security the defendant No.3 also executed a registered mortgaged deed dated 20.11.2006 in favour of the plaintiff. At the request of the defendants the aforesaid financial facilities were renewed/extended/approved by the plaintiff vide its letter dated 6.6.2007. By way of security as an acknowledgement for repayment of its dues to the financial facilities with mark up thereon. The defendant No.1 executed the following documents in favour of the plaintiff:-
i) Agreement for Financing on Mark Up basis dated 06.06.2007 for Rs.97,725,000/-
ii) Promissory Note dated 06.06.2007 for Rs.97,725,000/-.
iii) Letter of Continuity dated 06.06.2007 .
iv) Letter of Agreement dated 06.06.2007.
v) Confirmation and Undertaking dated 06.06.2007.
vi) Agreement for Discount/Purchase of Bills dated 06.06.2007.
vii) Packing Credit Letter dated 06.06.2007.
viii) Agreement for Negotiation, Discount and Collection of Documents under Letter of Credit And/or Export Contracts and For Post Shipment Financing dated 06.06.2007.
2. The defendants Nos.2 and 3 executed separate guarantees dated 6.6.2007 in favour of the plaintiff unconditionally and irrevocably guaranteeing, inter alia repayment of the defendant No.1's all present and future indebtedness/ liabilities payable to the plaintiff to the extent of Rs.97,725,000/- in addition to any costs, service charges and expenses due and payable to the plaintiff as per. Despite of the plaintiff's repeated requests/demands, the defendant No.1 failed/neglected to pay the accrued mark up and to liquidate its liabilities to the plaintiff in respect of the said financial facilities. The defendant No.1 had also committed default in relation to ERF, as a result of which the State Bank of Pakistan (SBP) had imposed fine/penalty which were paid by the plaintiff to the SBP by debiting defendant No.1's account maintained with the plaintiff's concerned Branch. The plaintiff through its Advocate caused legal notice dated 11.7.2009 served on the defendants Nos.1, 2 and 3 calling upon them to pay Rs.91.500(M) plus mark up in the sum of Rs.1,362,831/- total amounting to rs.92,862,831/- outstanding, due and payable against the defendant No.1 within seven days. The plaintiff further cause legal notice dated 31.7.2009 under Section 15 of the Financial Institutions (Recovery of Finances) Ordinance 2001, served on the defendants through TCS, but the said legal notice returned unserved with remarks "shifted". On 21.12.2009 a sum of Rs.110,055,071/- was outstanding amount, due and payable by the defendants Nos.1,2 and 3 jointly and severally to the plaintiff. On failure of the defendants to repay the outstanding balance mentioned the plaintiff filed the present suit duly signed, sworn and verified by Mr. Muhammad Shareef S/o Ahmed Buksh the attorney of the plaintiff's bank with the following prayer:-
"(a) Property measuring 17 kanal-18 marlas, bearing Khewat No.99, Khatooni No.256, Khasra No.3800 (2 Marlas, 2/22 shares, out of total property measuring 1K-2M_, 3801 (OK-7M. 7/93 share, out of total property measuring 1K-12M), 3799 (14 Kanal 3 Marlas) situated in Revenue Estate Kasur Baroon Jadeed Urban Tehsil and District Kasur with all its present and future superstructures buildings, fittings.
(b) Property measuring 3 Kanal 4 Marlas, bearing Khewat No.99, Khatooni No.256, Qita 1, Khasra No.3798 (1K-9M,10/11 share, out of total property measuring 1K-12M), 3800 (1K-12M), 3800 (1K-12 M,35/115 share out of total property measuring 1K-15M) Qita No.2, Khasra No.3801 (4K013 M), situated in Revenue Estate Kasur Baroon Jadeed Urban Tehsil and District Kasur."
2. Process under Section (5) Financial Institutions (Recovery of Finances) Ordinance, 2001 issued to the defendants Nos.1, 2 and 3 by all 4 modes i.e. through bailiff, courier service, registered A.D. post and publications in newspapers i.e. daily "Dawn" English Karachi dated 9.10.2010, daily Jang Karachi and daily Jang Lahore both dated 9.1.2010. The bailiff returned the process duly served. No application for leave to defend has been filed in the present suit by any of the defendants. On 11.3.2010 the matter was fixed before this Court Mr. S. Manoon Hasan, Advocate for the plaintiff was present, but none appeared for the defendants. The Court directed the plaintiff to file a statement showing the disbursed amount, repayments and SBP penalties alongwith supporting documents. On 15.3.2010 when the matter was fixed before this Court Mr. S. Manoon Hasan, learned Advocate for the plaintiff has filed the statement in compliance of the directions of this Court dated 11.3.2010. Mr. Anwar Ali defendant No.2, who is also the Chief Executive of defendant No.1 appeared before the Court personally on 15.3.2010 filed an application duly signed by him and have the seal/stamp of the company prayed in their application that this Hon'ble Court may be pleased to, "adjourned to the above suit for 15 days to enable the defendants to settle the plaintiff's claim in the above suit outside the Court. The defendants admit the plaintiff's claim but want to finalize repayment schedule thereof with the plaintiff."
3. On 15.3.2010 this Hon'ble Court passed a clear direction that, "within which time the parties shall come up with definite instructions, if any, with regard to settlement." Thereafter the matter was adjourned for today i.e. 5.4.2010. Today Mr. Anwar Ali the defendant No.2, who is also Chief Executive/Director of defendant No.1 is absent and has failed to file the statement in compliance of the directions of this Court. The learned counsel for the plaintiff on 15.3.2010 in presence of Mr. Anwar Ali the defendant No.2, who is Chief Executive of defendant No.1 filed the claim of the plaintiff as on 28.2.2010 amounting to Rs.112,205,918/- includes the penalties paid by the plaintiff to the State Bank of Pakistan. Since the defendants have failed to file any application for leave to defend in the present suit and on 15.3.2010 the defendant No.2 Anwar Ali, who is Chief Executive of defendant No.1 present in Court and filed an application wherein he admitted the plaintiff's claim before this Hon'ble Court, but has failed to file any repayment schedule for which he sought time from this Court on 15.3.2010.
4. Under the circumstances, the suit of the plaintiff is hereby decreed for Rs.112,205,918/- with costs of funds from the date of the filing of the present suit till the realization of the whole decretal amount, the final decree for the sale of the mortgaged property in terms of prayer Clause-(ii) of the properties mentioned therein and the cost of the suit are also granted.
JUDGE