IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No.38 of 2010
Sindh Small Industries Corporation,
Having its Head Office at A.M. 310,
Preedy Street Saddar, Karachi through its
Deputy Directore (Authorized Officer), SSIC
Regional Office at SITE Area, Hyderabad……………….……Appellant.
VERSUS
1. Mr.Bhojo Mal S/o Moman Mal
Adult, Hindu, by caste Lohana
2. Mr.Fazal Muhammad @ Zameer Ahmed
S/o Makhdoom Abdul Rehman,
Muslim, adult, by caste Abbasi,
Both R/o Bubak Town, Taluka Sehwan,
District Dadu (Now Jamshoro) both
Partners of M/s.Qalanderi Flour Mill
Plot No.5 &6 Industrial Park, Sehwan,
District Jamshoro………………………………………Respondents.
APPEAL UNDER SECTION 96 CPC.
Being aggrieved and highly dissatisfied with the impugned
order dated:24-07-2010 passed by Learned Additional District Judge Kotri
in Summary Suit No.06/2010 (SSIC V/S Bhojo Mal and an other), whereby
the suit of the Appellant/Plaintiff dismissed on the ground of time barred,
therefore, appellant prefer this appeal and pray that, this Honourable Court
may pleased to call for record and proceedings from learned trial court, after
examining the proceedings, documents, impugned order, hearing the parties,
finding illegalities, irregularities, conjectures, surmises, set aside impugned
order remand the case for deciding a fresh on merits according to law and
procedure, on the consideration of following facts and grounds:- (Copy of
Judgement and decree are attached herewith as Annexures “A” & “A-
1”)
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FACTS
Succinctly facts leading rise to instant appeal are that, appellant
filed Summary Suit Under Order XXXVII of Civil Procedure Code, 1908
for Recovery of Rs.6,29,064/- against the respondents with contention that,
appellant/plaintiff is a statutory body of the Government of Sindh,
constituted under the SSIC Act, 1972 (Act XXVI of 1972) for the promotion
and development of Small and Cottage Industries in the province of Sindh
and has perpetual succession by said name, sue and be sued. Sindh Small
Industries Corporation has its Head Office at Karachi while Regional
Offices at Karachi, Hyderabad, Sukkur and Larkana. The appellant/plaintiff
is fully conversant with fact and figures of the case and fully competent to
file recovery suit. Sindh Small Industries Corporation (hereafter be called as
SSIC) has been constituted in Sindh Province for establishment and
promotion of cottage and Small Industries. Similarly one of its tasks is to
create job opportunities for the jobless manpower and catering demand of
the Small and Cottage Industries through its Traditional and Non-Traditional
Training Centers. SSIC has introduced various schemes and loan packages
for Industrialization and promotion the pace of investment in the area for
strengthening economy of the country. Amongst such scheme, one was
called as Self Employment Scheme. The scheme was meant for setting up
units of different natures. In this context, the appellant/plaintiff sanctioned
number of loans to different borrowers and disbursed million of rupees for
sake of industrialization in the area.
The respondents/defendants are borrowers of SSIC, who
applied for loan amounting to Rs.753,000/- in 1993 for establishment of
Flour Mill, at Plot No. 5 & 6, Industrial Park, Sehwan, District Dadu (Now
Jamshoro) under the name & style M/s. Qalanderi Flour Mill. SSIC had
entertained loan application of the respondents/defendants, processed it as
per procedure and sanctioned Rs.753,000/- for establishment of the proposed
unit vide sanctioned Advice No.SSIC/HYD/RD/SES/94/2851/56 dated:18-
01-1994. Terms and conditions of mode of loan disbursement, its repayment
and other regulatory measures were incorporated in the said Sanction Advice
under the Head “Terms & Conditions”. The respondents/defendants had
agreed and accepted all terms and conditions of the loan as incorporated in
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the sanction Advice referred to in Para Supra, vide his written
consent/acceptance. The respondents/defendants executed loan and finance
agreement with SSIC, in connection with terms & conditions of
disbursement and re-payment mode of loan as per agreements, they also
submitted Demand Promissory Note to SSIC. Loan amounting to
Rs.753,000/- sanctioned in favour of the respondents/defendants was
secured by equitable mortgage of following assets:-
A. Project Assets.
i) Project land bearing Plot No.5 & 6, Rs.54,975/-
Measuring 9700 Sq. ft. at SSIC,
Industrial Par, Sehwan, District
Dadu (Now Jamshoro) owned by
Respondents/defendants.
ii) Building of Factory (Proposed) Rs.566,440/-
iii) Machinery (Proposed) Rs.753,000/-
Total Rs.1,374,415/-
B. Collateral.
Agricultural land bearing Revenue Rs.233,750/-
Survey No.65, 111, 365, 486 to 488,
490, 491 & 493, measuring 35 Acres &
07 Ghuntas, in Deh & Tapa Fazlani,
Taluka Sehwan, District Dadu (Now
Jamshoro), owned by respondents/defendants.
That the sanctioned Loan was disbursed in 4 installments in
favour of the machinery supplier through crossed Cheques i.e. Rs.188,250/-
on 17-05-1994, Rs.376,500/- on 06-07-1994, Rs.51,650/- on 23-12-1994 and
Rs.136,600/- on 06-06-1995 respectively as per authority given by the
respondents/defendants. The respondents/defendants was persuaded for
repayment of loan installments vide letter dated:17-09-1998, 27-10-1998,
02-08-1999 and 20-04-2000 but they did not pay any positive response.
Since the date of disbursement of loan, the borrowers have repaid
Rs.680,00/- only towards their loan account and became will defaulter.
Respondents/defendants were served with notices under Section-81 and 82
under Sindh Land Revenue Act. 1967 for regularization of their account but
no fruitful result could be achieved. The respondents/defendants was asked
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for availing incentive for walvement of 100% service charges and penalty by
making entire remaining payment within stipulated period vide letter
dated:13-08-2005 but they did not pay any notice thereof. The incentive in
question was extended for the next 6 months and the respondents/defendants
were again advised to avail the facility but they again did not pay any head
thereupon. Despite of all possible efforts, the loan account could not be
regularized hence dues increased with the passage of time and came to
Rs.629,064/- with following break-up:-
a. Principal Rs.485,805/-
b. Markup Rs.60,653/-
c. Service Charges Rs.51,961/-
Total Rs.629,064/-
That suit of appellant/plaintiff is based on accounts, receipts,
agreements, equitable mortgage, Demand Promissory Note and other related
documents. Earlier appellant/plaintiff filed recovery suit before learned
Banking Court No.I, Hyderabad against the respondents/defendants but the
suit was returned with direction for filing it before competent Court having
jurisdiction, since promissory Note, equitable mortgage and other documents
according to order XXXVII of CPC are involved therefore, suit filed before
learned District Judge, Kotri under the summary proceedings. The
appellant/plaintiff prayed in his plaint as under:-
a) The judgment may kindly be passed and suit may be decreed
for Rs.629,064/- along-with costs and other expenses incurred
upon, from the date of default to satisfaction of decrital amount.
b) That, orders may kindly be passed for sale of project assets and
Collateral security for realizing dues. Further be pleased to
order for sale of moveable and immovable properties of the
respondents/defendants.
c) That the cost of suit may kindly be saddled from the
respondents/defendants.
d) Any other relief (s) as this Honourable Court may deem fit and
proper, may be awarded to the appellant/plaintiff.
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That, learned Additional District Judge Kotri without assigning
the suit number issued pre-admission notice to the respondents. After
hearing the learned counsel for the parties, dismissed suit on the ground of
time barred. Hence, the appellant prefers appeal inter alia on the following
grounds:-
GROUNDS
1. That, the order of learned trial court dismissing the suit is
illegal, unlawful, void and abinitio and liable to be set aside as the same was
passed without going through the contents of plaint and without examining
the documents so also promissory note. According to Negotiable Instrument
Act, 1881 only summary suit can be filed U/O XXXVII CPC. Apart from
Demand Promissory Note there are other documents according to which
only District Court is competent to adjudicate upon the matter. The
impugned order dated:24-07-2010 is not speaking one and liable to be set
aside.
2. That leaned trial Court was not competent to dismissed the
plaint without ascertaining the documents and without assigning the cogent
reason. The suit of the appellant was dismissed hurriedly and in hasty
manner even no number of the suit was assigned.
3. That, after issuance of pr-admission notice, the respondents
failed to file written statement, objections or preliminary objections, as the
respondents/defendants declared ex-parte.
4. That the learned trial court dismissed the suit alleging being
time barred.
5. That the plea of limitation is a mixed question of law and facts,
as suit was requires inquiry at trial.
6. That the law requires adjudication and merits and technicalities
are to be avoided.
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7. That the further grounds will be argued at the time of hearing of
this appeal with the permission of this Honourable Court.
8. That, appeal is in time.
Prayer is made in the interest of justice & equity that, appeal
may be allowed, order of learned trial court may be set aside and suit of the
appellant/plaintiff may be decreed or suit may be remanded to learned trial
court for deciding a fresh according to law on merits or pass any other
appropriate order as this Honourable court deem fit and proper in favour of
appellant.
AUTHORIZED OFFICER
OF APPELLANT.
Hyderabad.
Dated:01-09-2010 ADVOCATE FOR APPELLANT.
IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No. of 2010
Sindh Small Industries Corporation………………………….…Appellant.
VERSUS
Bhojo Mal and an other………………………………………...Respondents.
AFFIDAVIT
I, Syed Imdad Ali Shah S/o Syed Wadal Shah, Director, Sindh
Small Industries Corporation, Hyderabad, Region, Hyderabad, do hereby
state on solemn affirmation as under:-
1. That, I am Authorized Officer of appellant in the above matter
as such am fully conversant with the facts of the case and say that,
accompanying appeal is drafted and filed under my instructions and
contents whereof are true.
2. That, If my accompanying appeal is not considered, I will
suffer heavy irreparable loss which can not be compensated in any manner
and very purpose of filing appeal would be frustrated.
3. That, for the sake of brevity contents of accompanying appeal
may be treated as part and parcel of this affidavit.
4. That whatever stated above is true and correct to the best of my
knowledge and belief.
Hyderabad.
Dated:01-09-2010 DEPONENT
The deponent is identified by me.
ADVOCATE.
Solemnly affirmed on oath before me on this 1 st day of September, 2010,
by the deponent above named, who has been identified by Mr.Bilawal Ali Ghunio
Advocate, who is personally known to me.
COMMISSIONER FOR TAKING AFFIDAVIT.
The contents of the affidavit were first truly and audibly read over and
explained to the deponent above named and he seems to have fully understood the same
and signed in my presence.
COMMISSIONER FOR TAKING AFFIDAVIT.
IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No. of 2010
Sindh Small Industries Corporation………………………….…Appellant.
VERSUS
Bhojo Mal and an other………………………………………...Respondents.
EXEMPTION APPLICATION U/S: 151 C.P.C.
It is respectfully prayed on behalf of the appellant that, this
Honourable Court may be pleased to exempt him from filing
original/certified true copies of all annexures except the “A” & “A-1”, as the
same are not readily available with the appellant. Further be pleased to allow
him to file photo copies of the same.
Prayer is made in the interest of justice.
Hyderabad.
Dated:012-09-2010 ADVOCATE FOR APPELLANT.
IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No. of 2010
Sindh Small Industries Corporation………………………….…Appellant.
VERSUS
Bhojo Mal and an other………………………………………...Respondents.
AFFIDAVIT
I, Syed Imdad Ali Shah S/o Syed Wadal Shah, Director, Sindh
Small Industries Corporation, Hyderabad, Region, Hyderabad, do hereby
state on solemn affirmation as under:-
1. That, I am Authorized Officer of appellant in the above matter
as such am fully conversant with the facts of the case and say that,
accompanying appeal is drafted and filed under my instructions and
contents whereof are true.
2. That, I am filing photo copies of all annexures except the “A”
& “A-1” as the original/certified true copies of the same are not readily
available with me and further I may be allowed to file photo copies.
3. That, for the sake of brevity contents of accompanying application may
be treated as part and parcel of this affidavit.
4. That whatever stated above is true and correct to the best of my
knowledge and belief.
Hyderabad.
Dated:01-09-2010 DEPONENT
The deponent is identified by me.
ADVOCATE.
Solemnly affirmed on oath before me on this 1 st day of September, 2010,
by the deponent above named, who has been identified by Mr.Bilawal Ali Ghunio
Advocate, who is personally known to me.
COMMISSIONER FOR TAKING AFFIDAVIT.
The contents of the affidavit were first truly and audibly read over and
explained to the deponent above named and he seems to have fully understood the same
and signed in my presence.
COMMISSIONER FOR TAKING AFFIDAVIT.
IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No.38 of 2010
Sindh Small Industries Corporation………………………….…Appellant.
VERSUS
Bhojo Mal and an other………………………………………...Respondents.
INDEX
SR.
PARTICULARS ANNEXURES PAGE
NO.
Memo of Appeal Alongwith
01.
Affidavit.
CTC of Judgement & Decree
02. “A” & “A-1”
dated:24-07-2010.
PSC Memo of Plaint of
03. “B”
Summary Suit No.06/2008.
04. PSC of loan application “C”
PSC of Sanction Advice &
05. “D” & “D-1”
Acceptance Letter.
07. PSC of Loan Agreement “E”
08. PSC of Finance agreement “F”
PSC of Demand Promissory
09. “G”
Note
10. PSC of Equitable mortgage “H”
11. PSC of Authorization “I”
12. PSC of Receipt “J”
13. PSC of letter dated:17-09-1998 “K”
14. PSC of letter dated:21-10-1998 “L”
15. PSC of letter dated:02-08-1999 “M”
16. PSC of letter dated:20-04-2000 “N”
17. PSC of Notice U/S: 81 “O”
(2)
18. PSC of Notice U/S:82 “P”
19. PSC of Incentive Letter “Q”
PSC of Letter dated:04-09-
20. “R”
2006.
21. PSC of Verified Statement “S”
22. PSC of Suit No.80/2006. “T”
Court Fee in shape of Non-
23. “U”
Judicial stamped papers.
PSC of Order of Banking
24. “V”
Court-I.
Exemption Application
25.
alongwith Affidavit.
26. Vakalatnama.
Hyderabad.
Dated:01-09-2010 ADVOCATE FOR APPELLANT.
IN THE HIGH COURT OF SINDH CIRCUIT COURT
HYDERABAD.
First Civil Appeal No.38 of 2010
Sindh Small Industries Corporation……………………….……Appellant.
VERSUS
Bhojomal & an other………………....…………………………Respondent.
STATEMENT
The undersigned stating therein that the undersigned is legal
advisor of Sindh Small Industries Hyderabad (Appellant) and regarding the
compliance of captioned appeal undersigned sent many letters, therefore,
may be pleased to grant time for compliance of the objections.
Hyderabad.
Dated:21-04-2012 ADVOCATE
FOR APPELLANT.
