2005 PLP 1151 (CLD)

Brief facts out of which present appeal arises are that the appellant sanctioned advice to finance facilities to the respondents on 27-5-1992. An agreement was also executed between the parties on 30-5-1992. According to the terms and conditions of the agreement, the respondents have to pay the amount through instalments to the appellant, but the respondents failed to pay the same in terms of the agreement The appellant being aggrieved filed a suit for recovery of Rs.3,38,529 before the Banking Court, Lahore. The respondents filed an application under Order VII, rule 11, C.P.C. on the ground that according to clause 3 of the agreement, the respondents have to secure his liabilities amounting to Rs.4,43,583 on 26-5-1999; whereas the appellant/plaintiff bank has filed suit against the respondents-defendants on 11-6-1996, which was dismissed by the Banking Court vide order dated 29-9-1999. The appellant being aggrieved filed this appeal.

2. The learned counsel of the appellant submits that the learned Banking Court erred in law to dismiss the suit of the appellant without adverting to clause 6 of the agreement arrived at between the parties, therefore, the order of the Banking Court is not sustainable in the eye of law.

3. The learned counsel of the respondents submits that Banking Court was justified to dismiss the suit of the appellant in view of clause 3 of the agreement and the learned counsel of the appellant failed to point out any infirmity or illegality in the impugned order of the Banking Court.

4. We have considered the contention of the learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce clauses 3 and 6 of the agreement arrived at between the parties to resolve the controversy between the parties:-- Clause No.3:-- "The purchase price shall be payable by the Customer to the Bank on or before 26-5-1999 in equal instalments commencing from 30-2-1993 and thereafter at the end of each succeeding month: Provided that in the event of the Customer paying the purchase price on the date(s) set out above, the Bank will pay to the Customer Rs.

As and by way of prompt payment bonus." Clause No.6:-- "It is hereby specifically agreed between the parties that where the Purchase Price is payable instalments, failure, on the part of the Customer to pay any instalment on its due date will entitle the Bank to demand immediate payment of the entire balance of purchase price remaining due notwithstanding any thing to the contrary contained in this agreement, and for recovery thereof to take possession of the goods and sell the same." Mere reading of the aforesaid clauses reveals that the judgment and decree of the First Appellate Court is the result of overlooking of clause 6 of the agreement. It is also settled principle of law that the Banking Court is duty bound to decide the case after applying its independent mind, as per principle laid down by the Honourable Supreme Court in PLD 1970 SC

173. It is also settled principle of law that if the agreement be read as a whole and not piecemeal, then the learned Banking Court had erred in law to rely upon clause 3 without adverting to clause 6 of the agreement arrived between the parties. In view of what has been discussed above, impugned order of the Banking Court is set aside and the appeal is hereby accepted. Parties are directed to appear before the learned Banking Court on 6-1-2004. The matter is pending adjudication since long, therefore, the learned Banking Court is directed to decide the suit of the appellant as expeditiously as possible. S.A.K./H-193/L Appeal accepted.