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Petitioner: UNION BANK OF THE MIDDLE EAST LTD. VS Respondent: MUHAMMAD SULEMAN
1992 M L D 1065
1992 M L D 1065
[Karachi]
Before S.A. Rahman, J
UNION BANK OF THE MIDDLE EAST LIMITED‑‑‑Plaintiff
versus
MUHAMMAD SULEMAN and another‑‑‑Defendants
Suit No. 248 of 1986, decided on 29th March, 1987,
Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑‑
‑‑‑‑S.6‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.3‑‑‑Suit for recovery of loan‑‑‑Application to appear and defend suit‑‑‑Execution of pronote on basis of which loan was obtained by borrower, taking of loan and availing of credit facility were not denied by borrower‑‑‑Wife of borrower (defendant) had not furnished guarantee for such loan‑‑‑Application for permission to defend suit, filed merely on flimsy ground, could not be considered‑‑‑Court refusing permission, decreed suit of plaintiff‑Bank with interest and costs.
Hari Shankar Paul and another v. Kadder Shah and others AIR 1939 PC 167; United Bank of India Ltd. v. Azirannessa Bewa PLD 1965 SC 274 and Subramonian v. Lutchman 501.A. 77 ref.
Sarwana for Paintiff.
S.N. Hyder for Defendant
Date of hearing: 29th March, 1987.
JUDGMENT
This is an application under Order 37, Rule 3(1), C.P.C. for permission to defend the suit based on a Pronote for Rs.10 lacs with interest thereon executed on 26‑4‑1980 to acknowledge Mortgage/Loan facility granted to defendant No.1. For further security the defendant No.1, executed Letters of Hypothecation of Goods, debits, Inland and Foreign Bills, Letter of Lien etc. As additional security defedant No.2 who is wife of the defendant No.1 created equitable mortgages in favour of plaintiff by deposit of title deeds of her plot and house. On 15‑12‑1983 there was a debit balance of Rs.1,813,338.76 in the account of defendant No.1. To acknowledge the same defendant No.1 executed another pronote for the said amount on 18‑12‑1983.
Mr. S.N. Hyder, Advocate for the plaintiff has contended that the mortgage by deposit of title deeds requires compulsory registration and has in support of his contention relied upon AIR 1939 Privy Council 167 (Hart Shankar Paul and another v. Kadder Shah and others and PLD 1965 SC 274, United Bank of India Ltd. v. Azirannessa Bewa, wherein reliance was placed on 50 Indian Appeals 77, Subramonian v. Lutchman.
I have gone through all these rulings. The rationale of the decisions in all these is that where the mortgage by deposit of title deed is in itself an operative instrument and not merely evidentiary its registration is compulsory, which is not the case in the present transaction.
The execution of pronote and the taking of the loan and availing of I the credit facility is not denied. Similarly it is not denied that defendant No.2 who was wife of the defendant No.1, had furnished guarantee for the loan. In these circumstances the application for permission to defend the suit appears to have been filed merely on flimsy ground and does not merit consideration. Hence I dismiss the application for permission to defend the suit. The result is that permission having been refused, the suit, is decreed with interest and costs as prayed in clause (a) of the prayer. A preliminary mortgage decree as prayed in clauses (b) and (c) is also passed.
H.B.T./U‑121/K Suit decreed.