2004 PLP 1669 (CLD)

Nemo for Respondent. Date of hearing: 12th March, 2003. MIAN HAMID FAROOQ, J.‑‑‑United Bank Ltd. appellant/plaintiff, through the filing of the present appeal, has called in question judgment and decree dated 28‑7‑1994, whereby the learned Special Court Banking, after finding that the entire outstanding liability has been liquidated by the respondents, proceeded to dismiss the suit having become redundant and declined to award penal interest at the rate of 5% per, annum to the appellant.

2. Briefly stated the facts leading to the filing of the present appeal are that the appellant filed a suit for the recovery of Rs.29,113 with costs and interest at the rate of 13%, against the respondents, before the then Special Court Banking, which was initially decreed ex parte favouring the appellant, vide judgment and decree dated 18‑10‑1992. Later on the said decree was set aside upon an application filed by the respondents. Pursuant thereto the respondents filed an application seeking leave to appear and defend the suit, however, during the pendency of the suit, statements of both the learned counsel were recorded and the learned Special Court Banking, after finding that the respondents have paid a sum of Rs.70343, as against the outstanding amount of Rs.68,238, proceeded to dismiss the suit, having become redundant, while declining to award the amount of penal interest at the rate of 5%, vide judgment and decree dated 28‑7‑1994, hence the present appeal.

3. Despite service nobody has entered appearance to represent the respondents, thus, they are proceeded ex parte.

4. Learned counsel for the appellant has contended that although the appellant‑bank was entitled for grant of penal interest at the rate of 5%, yet the same has illegally been declined by the then Special Court Banking, as such, according to the learned counsel, the impugned judgment and decree need modification.

5. We have examined the contents of the plaint and find that the appellant nowhere pleaded for the grant of penal interest at the rate of 5%. Even in the prayer clause, no prayer for the award of 5% penal interest was made by the appellant‑bank. It would be advantageous to reproduce the prayer made by the appellant in its suit, which reads as follow:‑‑ "It is, therefore, requested that a decree for Rs.29,113 with cost and interest at the, rate of 13% with quarterly rests from the date of suit till realization of full amount be passed in favour of plaintiff‑bank against the defendant. The property of defendant may also be ordered to be sold and proceeds be paid to the plaintiff‑bank towards the satisfaction of loan. If any pact of loan remains unpaid, any other property may also be sold and the proceeds be paid to the plaintiff‑bank. Any other relief which this Honourable Court deems fit may also be awarded." It flows from the above that from the very inception of the case, the appellant did not raise the plea, even in the plaint, that it is entitled for the grant of penal interest what to talk of 5%. We do not find from the record that at any stage of the proceedings, the appellant‑bank filed any application, thereby seeking amendment of the plaint, so as to incorporate the alleged claim of penal interest. It appears that for the first time, before the Appellate Court the said plea has been raised. It is settled law that a person cannot be allowed to raise altogether a new plea before the Court of appeal, thus, the appellant is precluded from agitating the non‑award of penal interest at the appellate stage, moreso when the respondents had already liquidated the total outstanding liabilities as far back as in the year, 1994.

6. We have examined the impugned judgment and find that the learned Special Court Banking has amply and properly dealt with the matter regarding the award of penal interest and has rightly held that the appellant is not entitled for the grant of penal interest. We hereby confirm the findings of the learned Special Court Banking as they are legal and un‑exceptionable. Additionally, it is settled law, by now, that the penal interest cannot be awarded to Financial Institutions, as the same amounts to penalty.

7. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed, with no order as to costs. M.H./U‑50/L Appeal dismissed.