2011 PLP 1080 (CLD)

TARIQ JAVAID, J.

This judgment shall dispose of RFA No.394 of 2009 and FAO No. 228 of 2010 as both arise out of the same judgment.

2. The learned counsel for the appellant has argued that the impugned judgment and decree has been passed on the basis of photo copy of the documents with regard to the reconstructing of loan and original documents were not produced. It is also argued that original terms and conditions of loan agreement were not brought on record whereas in F.A.O. No.228 of 2010 it has been argued that while passing the above said judgment and decree service of notice was not effected on the appellant; therefore, ex parte decree could not have been passed against him. The impugned judgment and decree was passed for the recovery of Rs. 66,27,417.14 as per outstanding facility of running finance as well as mark up accrued thereon till 30-9-2007 along with costs of funds at prevailing rate and till final realization of the decretal amount.

3. The appellant in F.A.O. No.228 of 2010 was guarantor in this case, the judgment and decree was passed against the appellant as well as guarantor. Case of the respondent-Bank was that the appellant entered into agreement and the running finance facility. He was advanced a sum of Rs.6627,417.14 which he failed to re-pay, hence the suit for recovery of amount was filed against him. An application for leave to defend was filed. However, the learned trial court was not persuaded to grant leave as under the law the bank statement issued by the Bank had the presumption of truth and according to the learned trial court the appellant had failed to make out a case for grant of leave to defend.

4. The only ground urged before us was that the judgment and decree could have not been passed' on the basis of photo copies of loan agreement. However, learned counsel for the appellant has not disputed the amount of loan as reflected from the bank statement certified copy whereof was annexed with the plaint. We have no doubt that the bank was under legal obligation to produce the original documents. However case never reached at evidence stage, as leave was not granted. However, admittedly, statement of account certified under the Bankers' Books Evidence Act was annexed with the plaint. No objection with regard to the statement has been raised nor it is disputed that said amount was not borrowed by the appellant. It is also apparent from the record that notices were issued to the appellant in F.A.O. No.228 of 2010 which were not received by him as there is refusal to receive the same. Proclamation in the newspaper was also issued and-registered A.D. was also delivered to the appellant; therefore, we are not persuaded to believe that notices issued were not served on the appellant in FAO. In these 'circumstances, we do not find any reason in interfering with the judgment passed by the learned Judge Banking Court. No illegality has been pointed out by the learned counsel in the impugned judgment and decree. These appeals fail. Dismissed. H.B.T./C-12/L Appeals dismissed.