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Suit No. 339 of 1984, decided on 25th March, 1985.

---S. 7--Civil Procedure Code (V of 1908), O. 1, r. 4 & O. XXXVII, rr.l, 2 & 3--Suit for recovery of loan--Defendants not seeking leave to appear and defend--Decree against such defendants---Defendants failing to apply for leave to defend suit filed against them by plaintiff- Bank- Averments made against such defendants solemnly affirmed in plaint by plaintiff-Bank--Plaintiff-Bank, held, entitled to decree prayed for in suit--Suit against such defendants decreed in circumstances.

---Ss. 4 & 7--Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2--Contract Act (IX of 1872), Ss. 172 & 178 &--Defence Saving Certificates Rules, 1966, rr. 57, 58 & 61--Defence Saving Certificates--Pledge of- Procedure for--Application for leave to defend--Defence of pledgor/defendants that certain Form was to be filled up for pledge of Defence Saving Certificates--Procedure not having been complied with defence of pledgor/defendants, held, had substance--Securities belonging to defendants being already in possession of plaintiff-Bank--Plaintiff-Batik claiming decree against defendants only to extent of sale proceed of securities--Conditional leave to defend granted to defendant in circumstances.

Mamnoon Hassan for Plaintiff.

Nemo for Defendants 1 to 5 and 15,

Abdul Muqtadir Khan for Defendants Nos. 6 to 11.

S.A. Wadood for Defendants Nos. 12, 13, 14 and 16.

Dated of hearing: 25th March, 1985.

Six applications have been filed for cleave to defend the present suit on behalf of the defendants who are represented by Mr. Abdul Muqtadir Khan and Mr, b.A. Wadood Advocates. The other two applications are under section 5 of the limitation Act, 1908, filed by these defendants. No application, for leave to defend has been filed by the other defendants namely, defendants Nos. 2 to 5 and defendant No. 15.

2. As no application for leave to defend has been filed by the defendants Nos. 1 to 5 and defendant No. 15 and in view of the averments in the plaint, which is verified on solemn affirmation, against these defendants, the plaintiff is entitled to a decree as prayed in the present suit.

3. Suit No.339 of 1984 is decreed against defendants Noe... 1, 2, 3, 4, 5 and 15, jointly and severally, for Rs.18,00,603.81, with interest at the rate of 14 per annum with quarterly rests, from the date a1 the filing of the suit till realization, subject to the liability of the defendant No. 15 being restricted to the amount recovered from the sale of Cumulative Deposit Certificates deposited by the defendant No. 15. The plaintiff shall also be entitled to costs as against defendants Nos. 1 to 5 and defendant No.15.

4. According to Mr. Abdul Muqtadir Khan, defendants Nos. 10 and 11 are minors and as such the certificates belonging to them couldnot have been pledged wits, the plaintiff-bank for repayment of any amount taken by the defendant No.1 from the plaintiff-bank. It is also contended by both Mr. Abdul a Muqtadir Khan and Mr. S.A, Wadood that admittedlythere is no writing of any of the defendants represented by them whereby the securities mentioned in the plaint were agreed by these defendants to have been pledged with the plaintiff-bank as security for the repayment of the loan taken by the defendant No.l. In their leave applications the defendants have denied- that securities were pledged with the plaintiff-bank as alleged in the plaint.

On the other hard, resisting these applications, it is argued lay Mr. Mammnoon Hassan, learned counsel for the plaintiff batik, that under the provisions of the Contract Act specially under section 172 and other sections of the Contract Act in Chapter IX, it is not necessary that there should be any writing from the pledgor to complete thepledge. However, it is not the case of the plaintiff-bank that the securities were pledged with them by defendants Nos. '2 to 5 under section 178 of the Contract Act. According to the learned counsel for the plaintiff, defendants Nos. 6 to 16 themselves pledged the securities mentioned in para 12 of the plaint with the plaintiff as further security for the loan of defendant No.l. It is further contended by Mr. Mamrnoon Hassan that no writing from any of the applicants was necessary-and the mere deposit /delivery of such certificates by them completed the pledge in favour of the bank.

Mr. S.A. Wadood, learned counsel for some of the defendants also relies upon the Defence Saving CertificatesRules. 1966. According to the learned has counsel even for pledge of Defence Saving Certificates a form is to be fillers up and in the present case cast, admittedly no such form was filled up. Learned counsel refers to rules 57 , 58 and 61 of the Defence Saving Certificates Rules, 1966.

The defence of the applicants is not without substance and the only point that requires further consideration is whether the applicants be granted unconditional leave or conditional leave. The securities belonging to the applicants acre already in possession of the plaintiff bank sand the plaintiff-bank in the present suit has claimed decree against the applicants only try the extant of the sale proceeds of such securities. In the facts and circumstances of this case, leave is granted to the applicants i.e. Defendants Nos.6 to 14 and 16 to defend the present suit on condition that they will not obtain duplicates of the securities/certificates mentioned in para 12 of, the plaint and encash the same -tills disposal of the present suit. This order will not affect such of the certificates mentioned in para. 12 of the plaint, which have already been encashed by any one or more of the applicants before the passing of this order. The two applications under section 5 of the Limitation Act are granted for the facts and reasons mentioned in the affidavits in support of such applications.

Civil Miscellaneous Applications Nos. 4318/1984, 4956/84, 4957/84, 4958/84, 4959/84, 5353/84, 5494/84 and 693/85 are disposed of by this order.

H.B.T.

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