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Regular First Appeal No.87 of 1981, decided on 14th March, 1987.
---S.2--Civil Procedure Code (V of 1908), S. 96 & O. XXXVII, Rr. 1 & 2--Recovery of band-loan--Leave to appear and defend suit granted to defendant on condition of depositing claimed amount--Failure to deposit such amount resulting in passing decree in favour of plaintiff-Bank On agreement of parries that if instead of cash deposit defendant furnished security of said amount, plaintiff would have no objection in granting such defendant leave to defend suit High Court accepted- appeal, granting defendant, leave to defend suit on furnishing of security of loan amount and remanded case to Trial Court for decision afresh in accordance with law.
Sardar Muhammad Latif Khan Khosa for Appellants.
Muhammad Mohsin Ansari for Respondent.
Date of hearing: 14th March, 1987.
- On -8th January, 1978, United Bank Limited filed suit in the Court of Senior Civil Judge, Faisalabad against Messrs Haji Textile Factory and Qadir Din for recovery of Rs.4,88,275. The defendants in their written statement dated 20th June, 1978, denied their liability to pay the claimed amount. They inter alia raised preliminary objections that the suit was time-barred; that the plaintiff was estopped by his conduct to file the present suit; that the merchandise of the defendant was misappropriated by the servants of the plaintiff-Bank; that the defendants were not liable to accept shipping documents; and that the suit was barred under section 69 of the Partnership Act. Before the issues could be struck, the suit was transferred on 27th November, 1979 to the Court of Special Judge Banking, Rawalpindi for hearing and decision according to law. The learned Special Judge Banking issued notice to the parties for 26th November, 1980. The defendants, though served, did not appear in Court on that date as a result of which ex parte proceedings were ordered against them and the suit was adjourned to 21st December, 1980 for ex parte evidence on behalf of the plaintiff. On that date, the .defendants appeared in Court. They applied for setting aside of the order of ex parte proceedings. The said order was withdrawn on 22nd December, 1980. On that very date, that learned Special Judge Banking granted leave to defendants to defend the suit on the condition that the entire amount involved in the suit will be deposited by them in Court. The suit was adjourned to 21st January, 1981. On that date it transpired that the defendants have failed to deposit the suit money in compliance with orders of the Court and as such, the learned Special Judge Banking proceeded to record ex parte evidence on behalf of the plaintiff. After recording statement -of Abdul Qayyum Buttar, Manager, United Bank Limited, a decree in the sum of Rs.4,88,275 with interest and costs was passed on 21st January, 1981 in favour of the plaintiff and against the defendants. Hence this appeal.
2. We have heard the learned counsel for the parties. It is admitted by learned counsel appearing on behalf of the plaintiff-Bank that the pledged goods are still in custody of the bank. In view of this it is contended on behalf of the appellants that the condition of deposit of the entire disputed amount while granting leave to defend was arbitrary and unfair. The learned counsel for the respondent without entering in merits stated that he will have no objection to remand of the suit for trial according to law if instead of depositing the suit money, the defendants are directed to furnish security in the said amount. The learned counsel for the appellants agrees to this suggestion.
In view of the above, we accept this appeal, set aside the impugned judgment and decree dated 21st January, 1981 and remand the suit to learned Special Judge Banking, Multan for proceedings and decision according to law. The defendants will furnish security in the sum of Rs.4,88,275 within one month of this order. The parties are left to bear their own costs of this appeal and are directed to appear before learned Special Judge Banking, Multan on 5th April, 1987.
A.A./H-13/L Case remanded.
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