MUSLIM COMMERCIAL BANK Ltd. Versus DARABSHAH B.DALAL

1. This is a suit under Order XXXVII, Rule 2, C.P.C. on a negotiable instrument. By an order of this Court, dated 17th March, 1976, the defendant was granted leave to defend the suit on the condition that the defendant would furnish bank guarantee for the amount claimed in the suit to the satisfaction of the Nazir of this Court within three weeks from the date of the order. This case came up before me on 26th February, 1976 and again on 3rd March, 1976 and I found that the defendant has not furnished the security. However, on 4th March, 1976, I gave another opportunity to the defendant to furnish the security. Today, Mr.Arif, the learned Advocate for the defendant states that the defendant is not in a, position to furnish the security.

2. However, Mr. Muhammad Arif has filed an application under Rule 23 of the Sind Chief Court Rules (Original Side) read with section 151, C.P.C. praying that this suit be transferred from short cause to the long cause for the reasons stated therein. In my opinion this application could ire considered only if the defendant had furnished the security as, otherwise, he has no right to appear and defend the suit.

3. It appears that Mr.Arif had applied for rejection of this plaint under Order VII, Rule 11, C.P.C. on the ground that Premier Bank Ltd., had ceased to exist and the said Bank vests in the Federal Government. But this application was , rejected by this Court by an order dated 20th October, 1976. Against this order, the defendant filed a petition for Special Leave to Appeal. However, the same was dismissed by their Lordships of the Supreme Court by an order of the 20th February, 1976. Mr. Arif has drawn my attention to a portion of the last paragraph of this order, whereby their Lordships observed as follows:‑

4. "But this shall not preclude the petitioners hereafter to agitate this issue alongwith the other issues arising out of the suit on the merits, if and when, the dispute is eventually brought before this Court."

5. On the basis of the observations of their Lordships of the Supreme Court, Mr.Muhammad Arif, argued that he was entitled to raise this plea even without furnishing the security. There is no doubt that the defendant would have been entitled to defend the suit on any plea available to him provided he had fulfilled the condition on which he was granted leave to defend the suit, but since he has failed to furnish the security he cannot be allowed, so far as this Court is concerned to agitate an issue which could be raised in defence of the suit. Of course, it will be open to the defendant to agitate this issue as and when he take the case before the Supreme Court in accordance with the observations of their Lordships of the Supreme Court.

6. Under the aforesaid circumstances, I am left with no alternative but to decree the suit for Rs.4,22,559 with interest at 9 per cent. per annum for the date of the suit till payment. The plaintiffs shall also have their costs of the suit from the defendants.

7. AA./M‑511/K Suit decreed.