IN THE HIGH COURT OF SINDH AT KARACHI

(Original Jurisdiction)

Suit No. B-31 of 2008

Present:

Mr. Justice Irfan Saadat Khan.

Plaintiff, NIB Bank Ltd., through Mr. Bilal Khilji, Advocate.

Nemo for the defendants.

Date of hearing:            08-09-2010.

JUDGMENT

IRFAN SAADAT KHAN, J:– The plaintiff has filed this suit against the defendants under Section 9 of the Financial Institutions (Recovery of Finance) Ordinance, 2001 (the Ordinance) for recovery of Rs.35,075,202/- plus future rental and cost of funds and services and other charges, with the following prayers:-

a) A decree be passed against the defendant jointly/severally for payment of plaintiff's bank an amount of Rs.35,07,202/-.

b) The decreetal amount be ordered to be realized also by attachment and sale of the leased vehicle already registered in the name of plaintiff and sale proceeds be ordered to be applied towards satisfaction of the decreetal amount.

c) Cost of fund till realization and future markup.

d) Any further relief that this Hon'ble Court deems fit and proper in the circumstances of the case.

Brief facts of the case are that the plaintiff is a Banking Company (formerly PICIC Ltd.) and is engaged in the business of providing finances to its customers. It is stated that defendants No.2 and 3 are partners of defendant No.1 which is a duly registered partnership firm engaged in the business of providing services of transportation. That in order to extend their business, defendants No.2 to 5, being partners of defendant No.1, approached the plaintiff to advance them finance facilities to purchase ten (10) unit Branch New Isuzu Busses Chassis Model No.MT-112. That on 14.07.2004 the plaintiff and defendants No.2 to 4 entered into a Vehicle Lease Agreement No.LFD/000026/TLT/V-0250/04 on rental basis with the terms and conditions mentioned therein. That the defendants executed the following documents:

            i)          Copy of the Partnership.

            ii)         Personal Guarantees of defendant No.2-3 & 4.

            iii)        Personal Guarantee of Defendant No.5.

            iv)        Personal Guarantee of Defendant No.6.

That in pursuance to the lease agreement dated 14.07.2004, the plaintiff purchased ten (10) buses from M/s. Gandhara Industries Ltd. and delivered the same to defendant No.1 which was duly acknowledged by the defendant. That defendants No.2 to 4 had also agreed that the said leased vehicles are the property of the plaintiff and the plaintiff shall have a right to repossess the vehicles in case of happening of some contingencies. That thereafter as the defendants failed to pay the rentals in due course of time; a dispute arose between the two parties.  Hence the present suit was filed.

            Mr. Bilal Khilji, learned counsel appeared on behalf of the plaintiff and submitted that the amount mentioned in the plaint may be decreed in favour of the plaintiff plus all the other ancillary costs as according to the learned counsel the defendants have miserably failed to pay the lease rentals required by them as per the lease agreement inspite of the facts that a number of requests were made by the plaintiff to pay the said rentals. As per the learned counsel the plaintiff has tried time and again to pursue the defendants to pay the outstanding lease rentals but the defendants have failed to pay the same. According to the learned counsel in the present suit the decreetal amount may be ordered to be realized by way of attachment and sale of the leased vehicles already registered in the name of the plaintiff. The learned counsel has invited my attention to Annexure-I to the plaint, at page-129, wherein complete breakup of outstanding amount is given. However, while arguing the case the learned counsel candidly conceded that late payment charges and the differential amount is not to be paid to the plaintiff  and did not press these two amounts. He however vehemently submitted that necessary orders may be passed in respect of the balance outstanding amount. In support of his submissions the learned counsel relied upon 2007 CLD 1348, 2008 CLD 101, 2002 CLD 53 and 2001 CLD 158.

            It is noted that on 19.11.2009 leave to defend applications filed by the defendants were fixed for hearing when due to their non presence the same were dismissed for non-prosecution. Even their application under Order IX, Rule 9 CPC read with Section 151 CPC was also dismissed for non-prosecution on 07.05.2010.

The defendants, having chosen to remain absent, have made themselves liable to a decree as the allegations made in the plaint shall be deemed to be admitted and the plaintiff entitled to the decree.

The plaint in the suit is on oath. As the defendants' applications for leave to defend the suit were dismissed for non-prosecution and, as such presumably there is no opposition to the plaint of the suit on merits, therefore, the suit is decreed in the following manner:

Amount of rentals payable                     Rs.37,791,978

Less:

Amount of rentals paid              Rs.7,380,000

                                                            ____________

Total amount                                      Rs.30,411,978

                                                            ===========          

            Thus the plaintiff is entitled to a sum of Rs.30,411,978/- plus cost of funds, as provided in Section 17 read with Section 3 of the Ordinance. The plaintiff is also entitled to relief in terms of prayer clause (b) as well.  Accordingly, the suit is decreed in favour of the plaintiff as above.

JUDGE

Dated: _____ September, 2010.