2005 PLP 1076 (CLD)

SYED JAMSHED ALL J.

The suit filed by respondent Bank against the appellants for the recovery of an amount of Rs. 1,14,199.00 was decreed by the learned Judge Banking Court-III, Lahore vide judgment and decree dated 9-7-1998 and simultaneously the application of the appellants for grant of leave to appear and defend/was dismissed.

2. The case of the plaintiff-Bank, was that Faisal Rauf Malik appellant No.1, was issued a credit card with a limit of Rs.80,000.00 while supplementary cards were also issued to appellants Nos.2 and

3. It was averred that the credit cards were fully utilized by the said appellants and on the date of the suit an amount of Rs.1,14, 199.00 was outstanding against them. Apart from the said amount liquidated damages in the sum of Rs.1,37,038.00 and costs of the suit were also claimed. The prayer of respondent-Bank for the grant of liquidated damages was declined. However, the suit was decreed with costs, service charges and mark-up at the agreed rate from the date of institution of the suit till the date of payment/ realization.

3. In the application for leave to appear and defend filed by the appellants the authority of Aamir Nawab to file the suit on behalf of the respondent was challenged. It was averred that the statement of accounts on which plaintiff-Bank relied was not a true copy of the original entries of the ledger and therefore, the suit was liable to be dismissed. It was further averred that appellants Nos.2 and 3 had never utilized the supplementary cards which had been returned to the respondent but they were also dragged in the litigation with ulterior motive. The claim of the plaintiff-Bank for 36% interest was also disputed on the ground that it was not agreed between the parties. Likewise, service charges or late payment charges were also not agreed to between the parties. An objection based on Article 17 of the Qanun-e-Shahadat Order was also raised. This application for leave to appear and defend was dismissed by the learned Banking Court with the following observations: "I have carefully considered the arguments. The defendants have not shown specifically as to which payment made by -them had not been credited in the statement of accounts. As a matter of fact, the defendants do not appear to have raised a serious or bona fide dispute in their application for the grant of leave to. defend. The suit appears to have been filed by a duly authorized person and the statement of accounts also appears to be in order. As such, the application of the defendants for the grant of leave to defend merits dismissal and the same is accordingly dismissed."

4. The learned counsel for the appellants contends that no clear finding was recorded by the learned trial Court that the suit was filed by a duly authorized person nor the other grounds for leave to appear' and defend were adverted to. He further submits that an application was moved before the learned Banking Court to supply a copy of the power-of-attorney executed by the plaintiff-Bank in favour of Mr, Aamir Nawab but it was returned with the remarks that the required document was not on the record of the suit. According to him leaving aside other objections of the appellants they were entitled to the grant of leave to appear and defend the suit on the said ground alone.

5. On the other hand, the learned counsel for the respondent-Bank submits that under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 the suit could be instituted by the Branch Manager. As far as the service charges and the late payment charges are concerned he maintains that the credit card was subject to terms and conditions which are sought to be produced before this Court through C.M. No.1400/C of 2003. This application is being resisted by the learned counsel for the appellants.

6. The submissions made by the learned counsel for the parties have been considered. The suit could, only be filed through a duly authorized person. Perusal, of the plaint shows that in para.9 it was averred that Aamir Nawab was a duly constituted attorney of the bank. Surprisingly, no power of attorney executed by the bank in his favour was placed on the record. We have examined the record but could not find that power of attorney authorizing Mr. Aamir Nawab to file the suit on behalf of the respondent-Bank. Perusal of the impugned judgment shows that the learned trial Court did not record any .clear finding on the averments made in the application for leave to appear and defend. We have noticed that the basis of debit entries were the terms and conditions of the credit card which were not before the- learned trial Court.

7. For what has been stated above, the impugned judgment and decree passed by the learned Banking Court are not sustainable. This appeal is, accordingly, allowed the judgment and decree impugned in this appeal are set aside, the application of the appellants for grant of leave to appear and defend is allowed unconditionally and the suit remanded to the learned, trial Court for a fresh decision in accordance with law. No order as to costs. S.A.K./F-213/L Appeal accepted.