2015 PLP 1197 (CLD)

The appellant through this first appeal has challenged the validity of order dated 14-10-2010 by which the application to, defend the suit, filed by the respondent bank for recovery of Rs.8,63,9141 including markup calculated up to 30-6-2006, was dismissed and the suit was decreed for an amount of Rs.6,02,659 with cost of suit and cost of fund.

2. The appellant filed an application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on the ground; the respondent bank has charged excessive markup, which is against the law; the documents with regard to the loan under L.C. No.099875 (9403) have been tampered, that there is no agreement of markup executed between the parties, therefore, the bank is not entitled to claim the markup; the loan for tractor was to be paid in 16 installments; the appellant has already deposited an amount of Rs.3,08,786 but the respondent bank is claiming an exaggerated amount; the documents of the loan are forged, therefore, cannot be relied upon and lastly prayed that in view of these questions of law and facts, a detailed enquiry is required, which can only be done by recording the evidence, therefore, the application be allowed.

3. The learned Banking Court after careful appreciation of the arguments of the parties and the record available on the file, dismissed the application for leave to defend, that in the presence of admission of availing the finance facility, the court has no option but to dismiss the same.

4. The learned counsel for the appellant in his arguments, has almost reiterated the grounds, taken in the application for leave to defend and submitted, that the appellant is not liable to pay anything and the learned Banking Court without carefully examining the submission has dismissed the PLA, which is against the law.

5. The contention, raised by the learned counsel for the appellant has no substance in the presence of admission that the loan facility was availed by the appellant after executing necessary documents to which, the presumption of correctness is attached. As regards, the forgery or tampering the record, the learned counsel for the appellant could not point out any forgery or the tampering alleged by the appellant, therefore, mere allegation of fraud or tempering is not sufficient as the appellant was bound to give the details and ingredients of the fraud.

6. As regards, the filing of the application for leave to defend the suit, we have gone through the application, which is not in accordance with section 10 of the Ordinance, ibid. The appellant has not complied with the aforesaid provisions of law by giving the detail of the loan facility and the payment made by the appellant to the bank. Although the appellant in para-7 has referred the loan amount but in a very clandestine manner, which is against the intent and purpose of law applicable in this case. We are fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in a esteemed judgment, Apollo Textile Mills Ltd and others v. Soneri Bank Ltd. (PLD 2012 SC 268).

7. The learned counsel has time and again referred the application filed by him under Order 11, Rules 12, 14, read with section 151, C.P.C. for summoning the different documents, that the same has not been decided by the learned Banking Court. In response thereof the learned counsel for the respondent bank has relied upon a judgment cited as Muhammad Azwar Siddiqui v. Chief Executive Union Leasing Ltd. and 21 others (2006 CLD 946) and submitted that without granting the petition for leave to appeal no application can be entertained or decided by the learned Banking Court.

8. The learned Banking Court, as is evident from the findings, has attended all the aspects of the case and the record, particularly, the documents pertaining to loan facility extended by the respondent bank to the appellant and finally decreed the suit for an amount of Rs.6,02659 with cost of suit and cost of funds to be charged on the outstanding principle amount of the respective loans from their date of default till final realization of the entire decretal amount.

9. We see no reason to interfere with the well-reasoned and elaborative judgment passed by the learned Banking Court, therefore, this first appeal is dismissed with no order as to costs. KMZ/M-44/L Appeal dismissed.