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Suit No.985 of 1985, decided on 31st August, 1986.

‑‑‑0. XXXVII, R. 3‑‑Limitation Act (IX of 1908), Art. 159‑‑Suit for recovery of loan‑‑Leave to defend‑‑Application of defendant for leave to defend suit miserably time barred and no sufficient ground shown for condoning delay‑‑No indulgence, by Court, held, called for in circumstances‑‑Application dismissed ad suit decreed with costs together with interest.

National Commercial Bank Limited Karachi v. Muhammad Tufail and another P L D 1975 Kar. 671 rel.

‑‑‑0. XXXVII, R. 3‑‑Limitation Act (IX of 1908), Art. 159‑‑Application for leave to defend‑‑Limitation‑‑Defendant, held, under obligation to explain delay of each and every day.

Anwar Mansoor Khan for Plaintiff.

A.A. Zari for Defendant.

Date of hearing: 21st August, 1986.

These three applications, all of which are fixed for hearing today, have arisen from a suit filed by United Bank Limited against the two defendants for recovery of Rs.1,36,29,130.

Briefly stated, a scheme was introduced by the plaintiffs whereby against guarantees furnished by sugar manufacturing companies, loans were disbursed to sugarcane growers. The defendants approached the plaintiffs for such facility and requested the plaintiffs to pay various loans amounting to Rs.7 million to sugarcane growers in District Khairpur. Such facility was granted and defendant No.l stood guarantor and promised to pay the entire amount of Rs.7 million. Thereafter, the entire amount was duly disbursed by the plaintiffs to various sugarcane growers at the defendant No. l's instance. A continuing guarantee dated 22‑3‑1978 was also signed by the defendant No.l in favour of the plaintiffs. In 1981 a sum of Rs.l 01, 56, 000 became due and payable by the defendant No.l which the defendant failed to pay to the plaintiffs. Thereafter, defendant No.2 by a resolution dated 11‑4‑1981 resolved that the plaintiffs be required to forebear from instituting legal proceedings in respect of their claim against the defendant No.l and it was further resolved that the defendant No.l would execute a guarantee in favour of the plaintiffs on such terms as may be required by them. Thereafter, the defendant No.2 guaranteed re‑payment of the entire amount of Rs.1,01,56,000 outstanding against defendant No.2 as on 31‑12‑1980 together with interast thereon at 3 above bank rate with a minimum of 13 per annum with quarterly rests from 31‑12‑1980. It was also agreed and guaranteed by the defendant No.2 that besides the above, penal interest of 2 per annum shall also be charged to the above account. A demand promissory note dated 11‑4‑1981 for Rs.1,01,56,000 was also executed by the defendant No.l in favour of the defendant No.2 which was assigned by the defendant No.2 in favour of the plaintiffs. Thus, according to the plaintiffs a sum of Rs.1,36,29,130 is now due and payable by the defendants jointly and severally on the basis of the original consideration, guarantees, demand promissory note, etc. which the defendants have failed to pay.

The defendants have now taken a plea that summons as in the case were received by them on 1‑2‑1986 but without copies of the plaint and other annexures attached thereto. The defendants have, therefore, contended that without such copies, they were handicapped from filing a proper application for leave to defend the suit, therefore, they submitted an application dated 5‑2‑1986 (Civil Miscellaneous Application No. 644 of 1986), to the Court, inter‑alla, praying for directing the plaintiff to supply true copies of the plaint and other annexures. However, according to the defendants, it was on 10‑3‑1986 that they received such copies and, thereafter, on 11‑3‑1986 they filed two applications, one under Order XXXVII, Rule 3, C.P.C. (Civil Miscellaneous Application No. 1262 of 1986) and the other under section 5 of the Limitation Act (Civil Miscellaneous Application No. 1261 of 19 86) for condonation of delay. Admittedly Civil Miscellaneous Application No. 1262 of 1986 was miserably time‑barred as the period of limitation provided under Article 159 of the Limitation Act for filing such applications is 10 days after summons has been served.

The first question, therefore, is whether delay should be condoned. As indicated above the defendants after receiving the summons in the case on 1‑2‑1986 filed application (Civil Miscellaneous Application No. 644 of 1986) in this Court on 5‑2‑1986 for being supplied with copies of the plaint and the annexures. This application appears to have been put up before the Court for hearing on 4‑6‑1986 but as stated by the defendants in Civil Miscellaneous Application No. 1261 of 1986, the defendants had already received the copies of the plaint and the annexures on 10‑3‑1986. It has however, not been explained as to how and from whom such copies had been received by the defendants. Nonetheless, the fact remains that such copies were received by the defendants before an order could be passed by the Court on Civil Miscellaneous Application No. 644 of 1986. The defendants have, therefore, failed to explain as to how so much time was taken by them for receiving the necessary copies. Needless to say that the defendants are under obligation to explain the delay of each and every day which they have failed to do in view of the circumstances discussed above. It is, therefore, clear that the application under Order XXXVII, Rule 3, C.P.C. for leave to defend the suit is time‑barred and no sufficient reasons have been shown to condone the delay. On merits B the case of the defendants is that the suit is not maintainable against the defendants since the principal debtors to whom money was advanced by the plaintiffs have not been joined by the plaintiffs as co‑defendants to the suit. Reliance has also been placed on an earlier judgment of this Court in National Commercial Bank Limited Karachi v. Muhammad Tufail and another P L D 1975 Kar. 671 which supports the defendants' contention. However, since the application for leave to defend is miserably time‑barred and no sufficient grounds for condoning the delay have been established, no indulgence can be shown to the defendants and, therefore, all the three applications fixed for hearing today are dismissed and the suit is decreed with costs as prayed for Rs.1,36,29,130 together with interest at 13 per annum as prayed from the date of the suit till payment.

M.Y.H./5156/K Petition dismissed.

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