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Suit No. 426 of 1973, decided on 24th September, 1985.

‑‑‑O. XXXVII, rr. 1 & 2‑‑Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 6‑‑Recovery of loans‑‑Suit for‑‑Defendants proceeded ex parte‑‑Overdraft and other facilities granted by Bank to defendant‑company were established by averments contained in plaint, affidavit of ex parte proof and documents filed by Bank‑‑Statement of accounts showing the liabilities of defendant‑company was certified by Manager of Bank as required by Bankers Books Evidence Act, 1891‑‑Suit having been filed within time and not barred by limitation, was decreed in favour of filed against defendants (borrower and guarantor) jointly and severally with costs in circumstances.

K.S. Talati for Plaintiff.

Nemo for Defendant's Nos.l and 2.

Date of hearing: 24th September, 1985.

The present suit had been filed against 3 defendants namely White Limited, Mushtaq Ahmed Allahwala and S.M. Abdullah for the recovery of Rs. 2,25,135.59. Defendant No.l company had been granted overdraft facility by the plaintiff‑bank from time to time. According to the plaintiff‑bank, defendant No.2 had guaranted repayment of the dues by the defendant No. l to the plaintiff‑bank, and later on defendant No.3, at the request of defendants Nos. 1 and. 2, also gave a guarantee upto the limit of Rs. 50,000. The following issues were settled by order, dated 9‑12‑1974.

(1) What were the terms and conditions of the overdraft granted by the plaintiff‑bank to the defendant No. 1

(2) Whether the statement of account is correct if not in what respect

(3) Whether the guarantee given by defendant No. 3 is void for want of consideration or any other reason

(4) Whether the claim against the defendants Nos. 2 and 3 is barred by limitation

(5) Whether the guarantor defendant No. 3 is discharged on account of conduct of the plaintiff

(6) Whether the guarantors are liable; if so, for what amount

(7) For what amount, if any, the defendant No. 1 is liable

(8) Is not defendant No. 3 entitled to a decree in the like amount against defendants Nos. 1 and 2 if a decree is passed against him

(9) What should the decree be

2. The case between the plaintiff and defendant No. 3 has been settled and a sum of Rs. 50,000 was paid by defendant No. 3 to the plaintiff and the suit as against the defendant No. 3 was withdrawn on 18‑9‑1985. No one appears on behalf of the defendants Nos. 1 and 2. In fact no written statement has been filed by defendants Nos. 1 and 2 and both of them were debarred from filing written statement. In fact the suit as against defendants Nos. 1 and 2 is proceeding ex parte. On behalf of the plaintiff, Syed Azam son of Syed Imam an Officer of the plaintiff‑bank, has filed affidavit of ex parte proof which is supported by various documents. I have heard Mr. K.S.Talati, learned counsel for the plaintiff. No one appears on behalf of defendants Nos. 1 and 2.

3. Suit as "against defendant No. 3 has already been withdrawn by the plaintiff and as such issues Nos. 3, 5 and 8 have become redundant and other issues to the extent they relate to the liability of defendant No. 3 have also become redundant. The fact that overdraft and other facilities that had been granted by the plaintiff to the defendant No. 1 company is established by the averments contained in the plaint which is verified on solemn affirmation, affidavit of ex parte proof filed by the officer of the plaintiff‑bank and the documents filed by the plaintiff. The statement of account showing the liability of defendant No. 1 is certified by the manager of the plaintiff‑bank as required by Bankers Books Evidence Act. The defendant No. 2 is also liable as he has given the guarantee for repayment of the dues of defendant No. 1. As regards the claim being within time, Mr. K.S. Talati has relied upon the various acknowledgments by defendants, the last one being, dated 1‑11‑1970. The present suit was filed on 29‑9‑1973. The suit has been filed within time and is not barred by limitation. The plaintiff‑bank is accordingly entitled to a decree minus a sum of Rs.50,000 which they have already received from defendant No. 3.

4. Suit No. 426 of 1973 is decreed in favour of the plaintiff‑bank and as against defendants Nos. 1 and 2, jointly and severally, in the sum of Rs. 1,75,135.59 with interest at the rate of 11 per cent per annum from the date of filing of this suit till realization. The plaintiff shall also be entitled to costs as against defendants Nos. 1 and 2.

H.B.T Suit decreed

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