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Suit No. 399 of 1979, decided on 20th October, 1981.

-----O. VII, r. 2‑Ex parte statement of plaintiff's witness on solemn affirmation remaining unchallenged‑Defendants not contesting suit and choosing to remain absent‑Suit supported ‑by documentary evidence Suit for recovery of amount decreed with interest in circumstances of case.‑[Witness].

I. H. Zaidi for Plaintiff.

Date of hearing : 20th October, 1981.

The Plaintiffs have brought this suit for recovery of Rs. 39,612.27 a with costs and interest. The defendants Nos. 1 and 2 were debarred from filing written statements and to defend the suit by order passed on 17.2‑1981. Today, the defendants were again called absent; and the case has proceeded against them ex parte.

1. (i) An affidavit of evidence in ex parse proof was allowed to be filed, and accordingly the plaintiff have‑filed an affidavit of one Mr. Viqar Ahmed, son of Mukhtiar Ahmad, an employee of the Plaintiffs' Bank. The said deponent on solemn affirmation has stated that the defendants had and still have an account being Current Deposit Account No. 286, in the name of the defendant No. 1, firm with the Plaintiffs' Foreign Exchange Branch at Karachi, and that, on or about 5th July, 1974, the plaintiffs at the request of the defendants granted a loan/cash credit up to a limit of Rs. 25,000.00 to the defendants in the said account, subject to interest at the rate of four per cent. above the bank rate, minimum interest at twelve per cent per annum with monthly rests. It has also been stated on oath that the defendants utilised the said limit in full from their aforesaid account. The abovenamed witness also deposed that as security for the repayment of the said debt and/or any balance amount which might be found against them, the defendants executed and delivered to the plaintiffs on 5th July, 1974, the following documents :‑------

(1) An agreement for cash credit dated 5th July, 1974.

(2) Letter of hypothecation dated 5th July, 1974, whereby the defendants hypothecated in favour of the plaintiffs all their moveable properties of every description.

(3) Letter of hypothecation of goods dated 5th July, 1974 whereby the defendants hypothecated the stocks in favour of the Plaintiffs.

The above documents have been produced and marked as Exh. A/1 to A/3.

(ii) The Plaintiffs by their letters dated 28th April, 1976 Exh. B called upon the defendants to settle their account, which showed a debit balance of Rs. 26,422.27 as on that date.

(iii) Subsequently, it was found that, as on 31st December, 1976 a sum of Rs. 29,202.27 was due by the defendants to the plaintiffs in the aforesaid account, which the ‑defendants promised to pay the plaintiffs and executed and delivered to the Plaintiffs promissory note dated 27‑12‑1976, which is produced as Exh. C/1. Alongwith the promissory Note, the defendants also executed and delivered to the Plaintiffs a letter of continuity, letter of waiver, and letter of interest Exh. C‑2 to C‑4.

(iv) The Plaintiffs, aforesaid witness also stated that the defendants made payments to the Plaintiffs towards part payment of outstanding loan on 12‑11‑1974, 9‑9‑1975 and 4‑12‑1975, which amounts are shown in the statement of account, and accordingly it was stated that the time was extended by such payments within the meaning of section 20 of the Limitation Act. The statement of account has been filed as Exh. D.

2. The above‑mentioned statement of the plaintiffs' witness in ex partel proof made on solemn affirmation has remained unchallenged. The defendants have also not contested the claim of the Plaintiffs and have chosen to remain absent.

On the evidence produced by the Plaintiffs, I am satisfied that the defendants are liable to pay Rs. 39,612.27 as shown in the statement of account produced by the plaintiffs only supported by documentary evidence.

3. For the reasons stated above. I hereby decree the suit for Rs. 39,612.27 jointly and severally against the defendants 1, 2 and 3 with interest at the rate of 15 % per annum with monthly rests as agreed between the parties.

The defendants shall also be liable to pay the costs of the suit to the plaintiff's.

M. Y H. Suit decreed.

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