Messrs ALI MATCH INDUSTRIES LTD And 3 Others vs INDUSTRIAL DEVELOPMENT

ORDER

ZIA MEHMOOD MIRZA, J. ---Petitioners seek leave to appeal against the appellate judgment of Peshwar High Court, Peshawar dated 19th December, 1994 whereby petitioners' appeal was dismissed with the observation that "the Banking Company cannot charge the penal interest, would not charge interest as per clause (b) of para. 4 of Schedule II of the Credit Agreement,...."

2. In a suit brought by the Industrial Development Bank of Pakistan, the respondent herein against the petitioners for the recovery of Rs.44,37,607.69 through attachment and mortgage of property, the petitioners/defendants filed to separate applications for leave to appear and defend the suit.

Besides taking some technical objections, they assailed the correctness of the statements of accounts. Special Judge, Banking Companies (Recovery of Loans), N.-W.F.P., Peshawar by his judgment Anti-d 30-11-1988 dismissed both the applications holding that the objection of the petitioners to the statements of accounts was without any force. The claim of the plaintiff-hank was accordingly decreed.

3. Petitioners preferred an appeal but with no better result as the same was dismissed with the a forenoted observations vide the impugned judgment. The learned Judges of the Appellate Court took the view that the petitioners could not set up a plausible defence. It was observed by the learned Judges "in absence of any cogent reason the mere assertion of incorrectness of statement of accounts which has not been specifically pin-pointed could not be given any weight or be made the basis to grant leave to defe/id the suit. We do not find any cogent and plausible or even prima facie defence put forward by the defendants which could warrant the leave to appear and defend the suit".

4. Learned counsel appearing in support of this petition has relied upon (1) Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163), (2) Azmat Ali v. Hassan Al-Adawi (1983 CLC 546) and (3)

Habib Bank Limited v. Messrs Pazhong Traders (1986 CLC 1086) to contend that if the defendant sets up a defence, whether plausible or even illusory, he is to be granted leave to defend the suit becausc at the stage when leave to defend is sought, the Judge is not to try the action; he is only to see that there is a bona fide allegation of a triable issue. Learned counsel makes a grievance that in the case of the petitioner, the trial Court as also the learned Judges in the High Court have approached the case as if they were holding a regular trial std they have not kept in view the principles enunciated in the a forenoted cases. Submission of the learned counsel is that the petitioner having set up a defence which at least raised a triable issue, it was entitled to the grant of leave to defend the suit and even if the defence set up by the petitioner could be said to be vague or unsatisfactory, the leave still could not have been refused and should have been granted on condition of furnishing security or deposit of amount.

5. Contention raised by the learned counsel needs consideration. Leave to appeal is, therefore, granted to the petitioners with the direction that they shall furnish bank guarantee for, the payment of decretal amount, to the satisfaction of the trial Court within one month, failing which the leave shall stand rescinded. It is further directed that on the petitioner's furnishing the requisite bank guarantee, the execution of the decree shall remain suspended.