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C.O.S. No.128 of 1983, decided on 1st February, 1984.

---O.XXXVII, R.3--Recovery suit--Leave to defend- suit-- Defendant not denying specifically receipt of loan--Permission sought for appearance and defending suit on ground that plaintiff-Bank had in its possession trust receipts in respect of various bills and that Bank had been directly negotiating with defendants' foreign importers without their instructions as such claim could not be made--Mere handing over trust bills to Bank did not matter much when those bills had been dishonoured--Pleas raised in petition, held, not such as could justify leave to appear and defend suit particularly when receipt of loan was not denied--Petition dismissed.

Malik Pervaiz Akhtar assisted by Bashir Ahmad Ranjha for Plaintiff.

Kh. Muhammad Akram for Defendants.

Date of hearing: 1st February, 1984.

The defendants have applied under Order XXXVII, rule 3, C.P.C., for leave to appear and defend the suit, on the grounds that the suit as framed was not competent; that since the plaintiff-Bank held trust receipts in respect of various bills, the claim could not be made; that the bank by having entered into direct negotiations with their foreign importers against their instructions could not prefer it against them and lastly that the outstanding amount could not be correlated to the consideration in dispute.

2. The application was opposed denying any direct negotiations with the defendants' foreign importers and adding that the trust receipts were in fact dishonoured and were of no practical use to them. They contended that since the receipt of consideration amount was not specifically denied, the suit in its present form was very much competent.

3. A perusal of the application would show that the defendants did not specifically deny the receipt of the loan in question. Merely, handing over trust bills did not matter much, particularly when those had been dishonoured. It is a simple case of repaying the debt rather than handing over any negotiable instrument, which as a fact was not even honoured. The so-called direct negotiations by the plaintiff-Bank with the defendants' foreign importers were outrightly denied. I fail to appreciate how, even if such negotiations were taken up at any time, the defendants could be relieved of their liability to pay back the loaned money. Nor could it be said with impugnity if the trust bills operated as repayment of the loan to the extent that no consideration was left behind for the purposes of recovery by the suit. If I could say, the pleas raised in the petition were not such as could justify leave to appear and defend the suit, particularly when the receipt of loan was not denied so as to require the plaintiff-Bank to prove it positively.

4. There is no merit in the petition and the same is dismissed. The suit is decreed with costs and interest as stipulated.

S . A . /3038/L Petition dismissed.

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