2004 PLP 838 (CLD)

(7) Friendship Textile Mills (Pvt.) Ltd. and others v. Government of Balochistan through Secretary, Local Government and Rural Development Quetta and others 1998 CLC 1767.

4. Learned counsel for the respondent‑Bank submits that the appellants availed financial facility and executed documents which were attached by the respondent‑Bank with the plaint. The appellants did not controvert the liabilities in the reply of the show‑cause notice issued by the learned Banking Court. He further submits that the learned Banking Tribunal after proper appreciation of evidence on record, decreed the suit against the appellants. Learned counsel for the appellants failed to point out any illegality or irregularity committed by the learned Banking Court at the time of deciding the suit of the respondent‑Bank against the appellants. He further urges that the respondent during the pendency of the suit filed an application alongwith the documents which was also considered by the Court below and found that the documents did not support the cause of the appellants and in fact supported the contents of the plaint.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record ourselves.

6. The first objection of learned counsel for the appellants that the suit was filed by the incompetent person has no force in view of the law laid down by this Court in Muhammad Ramzan v. Citibank N. A. 2001 CLC 158 and Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671.

7. It is better and appropriate to reproduce the relevant paragraphs of the plaint, to resolve the controversy between the parties:‑‑ Para. 3 That the plaintiff‑Bank at the request of defendant No. 1 through defendant No.2 allowed a packing Finance limit of Rs.1 million on mark‑up basis on 4‑5‑1991 to encourage the export per policy of Government of Pakistan. The said limit was subsequently renewed/enhanced to Rs.1.900 million on 12‑11‑1992 the currency of that limit was to expire on 30‑6‑1993 and the detail of final adjustment was 30‑11‑1993. The break‑up of the said packing Finance was as follows:‑‑ (i) Pre‑shipment Rs.1.00 million) Mark‑up of 8% per annum subject to the (ii) Post‑shipment Rs.0.900 million) restriction by State Bank of Pakistan. That the security provided by the defendants to the plaintiff Bank for the above mentioned finance is as follows:‑‑ (a) Equitable mortgage of Bungalow No. 15 on Plot No.38/A situated at Zahoor Afridi Road, Lahore Cantt. The said bungalow is owned by defendant No.3 and is worth Rs.30 lacs with all present and future construction within the specified area owned by the mortgagor and is bounded as under:‑‑ North by: Mosque side 58'. 8" South by: Approach Road 30' width side 58'‑8". East by: Zahoor Afridi Road side 89' West by: Plot No.38/A, side 89'. (b) Memorandum of deposit title deed of the bungalow mentioned in (a) above was executed by the Bank and defendant No.3. (c) General Irrevocable Power of Attorney, by the defendant No.3 the owner of the said Bungalow was executed and registered in favour of plaintiff‑Bank. (d) Personal guarantee of defendant No.3 owner of bungalow mentioned in (a) personally guaranteeing the repayment of Finance provided by the plaintiff Bank to the defendant was executed in favour of the plaintiff‑Bank. (e) Demand Promissory Note was executed by the defendant in favour of the plaintiff‑Bank. (f) Hypothecation of stock of appropriate value belonging to defendant and hypothecation letter (IB‑25) was executed in favour of the plaintiff‑Bank. (g) Lien of the plaintiff‑Bank on export L/C' confirmed order and export bills. (h) Trust receipt (IB‑27) signed by defendant No.2 on behalf of defendant No. 1 The aforesaid contents of the plaint were not denied by the appellants in reply to the show‑cause notice which is at page 125 of the file of the Court below.

8. The appellants filed an application under section 151, C.P.C. before the learned Banking Court alongwith documents consisting of Annexures R/1 to R/6. The said documents did not support the cause of the appellants. In fact the said documents supported the cause of the respondent‑Bank.

9. It is pertinent to mention here that the appellants did not raise aforesaid pleas which was urged before us in the contents of reply to the show‑cause notice before the learned Banking Court. It is settled principle of law that a party cannot be permitted to raise new ground of attack or defence by departing from its previous pleas. In arriving to this conclusion, we are fortified by the law laid down by the Honourable Supreme Court in Murad Begum's case PLD 1974 SC

322. As the appellants failed to raise any serious and bona fide dispute before the Court below, therefore, the learned Banking Court was justified to refuse to grant leave to defend the suit to the appellants and therefore, the learned Banking Court was justified to decree the suit against the appellants.

10. Admittedly the account was opened by the appellants and the agreement was also executed between the appellants and the respondent‑Bank. The learned Banking Court after appreciation of the documentary evidence, has given finding of fact against the appellants.

11. It has been correctly pointed out by the learned counsel of the respondent‑Bank that the loan facility stands proved as due from the appellants to the respondent‑Bank and for the execution of all the documents which have been annexed with the plaint or placed on record otherwise has not been denied by the appellants. The appellants had admitted the availing of the loan facility but has only badly disputed the correctness of statement of account. In the light of the documents filed by the respondent‑Bank which have in no manner been controverted by any documentary evidence or even by denial of execution of the said documents by the respondent‑Bank or of the affixation of signatures thereon, the bare assertion of incorrectness of the statement of accounts can in no way be given any weight or made the basis for granting leave to defend the suit. There is otherwise also a presumption of correctness attached of course rebuttable to statement of accounts certified under the Bankers' Books Evidence Act, 1891 which presumption has in no manner been rebutted by the appellants. It is also settled principle of law that admitted fact cannot be proved as appellants did not controvert the para No.3 and para No.4 of the plaint in reply of notice, therefore, the appellants are estopped to wriggle out from this position on the well‑known principle of estoppel and waiver. It is pertinent to mention here that the learned Banking Court did not award the liquidated damages to the respondent- Bank. The judgment relied upon by the learned counsel of the appellants are distinguished on facts and law. In view of what has been discussed above, we do not find any merit in the appeal and the same is dismissed. S.A.K./T‑120/L Appeal dismissed.