2020 PLP 366 (CLD)

MUHAMMAD SHAFI SIDDIQUI, J.

Counsel for defendants Nos.2 and 3 at the very outset has taken me to the documents attached with the plaint and submits that no statement of account is attached with the plaint nor the same is available on the record of the file. He submits that the defendants have taken this objection in their leave to defend application as well and this lacuna could not be cured at any belated stage. Learned counsel in support of his contention has relied upon the case of Apollo Textile Mills Ltd. v. Soneri Bank Ltd. reported in 2012 CLD 337 and submits that non -compliance of this requirement is fatal as far as plaintiff is concerned. As far as plaintiff is concerned, learned counsel has no answer as to non-availability of statement of account on record. He was handed over the Court file but was unable to find the documents/statement of account. I have heard the learned counsel for the defendants and peruse the material available on record and in particular gone through the case law cited by the learned counsel. In terms of paragraph 20 of the referred case the Hon'ble Supreme Court has held as under:- "Upon rejection of defendants petition for leave to defendant the suit, the court on its own examination of the plaint of the plaintiff financial Institutions and the documents therewith, rejected the plaint as well by holding that:-- "7 ........ subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory for a Banking institution to support its plaint in a suit against the customer by a Statement of Account duly certified under the Bankers' Books Evidence Act, 1891 and also by all other relevant documents relating to grant of finance. Without such a 'Statement of Account' filed along with the plaint, a customer will obviously remain totally unaware of the amount advanced, mark up charged and the basis, break up, premise, mode of calculation of account, nature of default and the actual amount of Bank's claim against the defendant-customer. He will thus be unable to frame his defence within the limited period prescribed by law, to show reasonable, serious and plausible grounds of contest to be able to seek and obtain leave to defend the suit. Absence of filing the requisite Statements of Account along with the plaint, will essentially amount to absence of providing adequate, proper and reasonable opportunity of defence to the defending customer. Being thus unable to file a proper leave petition within thirty days under section 10(2) of the Ordinance of 2001 or within twenty one days under section 10(12) ibid, such a customer may or may not later be able to amend his leave petition. His defence shall thus be rendered illusory, hence denied. Upon the compliance a Banking Company with the provisions of section 9(2) of the Ordinance of 2001, depends the right of defence of a defendant in the summary suits as visualized under the Ordinance, wherefor, the filing of duly certified Statements of Account by a Banking company along with its plaint, cannot be taken to be a mere formality or a technicality. This provision can only be held to be mandatory. Without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit under this law." It is settled principle that in terms of section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 the Bank is required to file such document in support of its claim which include but not limited to the statement of account duly certified under Bankers' Books Evidence Act, 1891 and also by all other documents relating to the grant of finances. The case of the defendant for the grant of this leave revolves around the statement of account which could only be the basis for the claim as made by the plaintiff in the plaint and in the absence of such statement of account this claim could hardly be construed as an amount outstanding. Statement of account is a crucial document which goes to the root of the case. It is however significant to see that though in the body of the plaint it is claimed to have been mentioned but not available on record. Preliminary objection (viii) is raised in this regard but no response and reply was given. On the contrary counsel appearing for the plaintiff has not been able to rebut the contention as raised by learned counsel for the defendant. In view of the above, this application filed on behalf of defendants Nos.2 and 3 is allowed and this unconditional leave is accordingly granted. 2/3) Adjourned. MH/A-155/Sindh Application allowed.