2005 PLP 615 (CLD)

Instant first appeal, filed by the appellants/ defendants Nos.7 and 8, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as Act), proceeds against the judgment and decree dated 8-2-2000, whereby the learned Banking Judge of this Court dismissed appellant s application for leave to defend the suit for non-prosecution and consequently passed a decree, as prayed for with costs against them.

2. Precisely stated the facts of the case are that respondent-bank filed the suit for recovery of Rs.691,998,000, along with mark-up at the rate of 22% per annum (C.O.S. No.84 of 1999), against the respondents Nos.1-A to 13, wherein the appellants were impleaded as defendants Nos.7 and 8, before the learned Banking Judge of this Court. All the defendants jointly filed the application (P.L.A. No.104 of 1998), seeking leave to defend the suit, which was resisted by the respondent-Bank. The learned Banking Court, on 30-9-1998, passed an interim decree for the sum of Rs.307 Million, favouring the respondent-Bank. During the pendency of the suit, some of the defendants arrived at compromise with the respondent-Bank and pursuant thereto two applications along with compromise were filed. The Honourable Banking Judge, on 8-2-2000, proceeded to pass a decree, against the defendants Nos.1 to 3, 5, 6, 9, 12, 13 and 15, in terms of the compromise (Mark-A), and dismissed the suit against defendant No.14. As regards the appellants and defendants Nos.4, 10 and 11, none appeared to prosecute the leave application on their behalf, therefore, the learned Banking Judge dismissed the application for non-prosecution to the extent of the said defendants and passed decree against them, vide impugned judgment and decree dated 8-2-2000, hence the present appeal.

3. Learned counsel for the appellant has contended that the appellants were not signatory to the compromise, they never engaged Khawaja Haris Ahmed, Advocate and neither signed nor filed any application seeking leave to defend the suit. He has further submitted that the appellants have filed the application under section 12(2), C.P.C., before the learned Banking Judge, for setting aside the impugned judgment and decree.

4. We have heard the learned counsel for the appellants and examined the summoned record. Record shows that all the defendants filed joint application, under section 10 of the Act, seeking leave to defend the suit, through Khawaja Haris Ahmed, Advocate. The said application appears to have been signed by all the defendants. After the passing of the impugned decree, the appellants challenged the same through filing the appeal and also assailed it by filing application under section 12(2), C.P.C., stating therein that they did not file any application for leave to defend the suit. According to the learned counsel the said application is still pending before the learned Single Judge in Chamber. Be that as it may, we are not inclined to dilate upon the question as to whether the appellants did file any application or not in view of the pendency of application under section 12(2), C.P.C. before the learned Banking Court as in case any findings are rendered, those may prejudice the cause of either of the parties before the learned trial Court.

5. There is no denial of the fact that the appellants are not signatory to the compromise (Mark-A) and that was the reason why no decree was passed against them on the basis of the compromise. It has been incorporated in the impugned judgment that defendants Nos.1 to 3, 5, 9, 12 and 15 have singed the agreement, while defendants Nos.1 to 3, 5, 6, 9, 12, 13 and 15 filed the application for the disposal of the suit in the terms of the compromise. The impugned judgment specifically states that the suit was decreed, on the basis of the compromise, only against defendants Nos.1 to 3, 5, 6, 9, 12, 13 and

15. On the face of the judgment, it cannot be argued that the suit was decreed against the appellants on the basis of the compromise. Rather the judgment itself manifests that as none represented the appellants on the date when the judgment was passed, therefore, their application was dismissed for non-prosecution and consequently, the suit was decreed against them and defendants Nos.4, 10 and

11. It would be appropriate to reproduce para.7 of the judgment, which relates to the appellants, which reads as follow:-- So far as the remaining defendants are concerned no one has appeared on their behalf. The application for leave to appear and defend the suit to the extent of these defendant is, therefore, dismissed for non-prosecution and the suit of the plaintiff as against defendants Nos.4,7, 8, 10 and 11 is decreed as prayed for in the plaint with costs. It flows from the above that the suit was decreed against the appellants on account of dismissal of their application, for leave to defend the suit, for non-prosecution, as neither the appellants nor their learned counsel entered appearance to prosecute the application. It is note worthy that neither in the grounds of appeal nor today the learned counsel, in his arguments, has pleaded any cause what to talk of sufficient cause for the non-appearance of the appellants or/and their learned counsel before the learned Banking Court, on which date their application was dismissed. Additionally, they have not filed any application before the learned Banking Court under section 12 of the Act, seeking restoration of their leave application and explaining the causes for their non-appearance and the absence of their learned counsel on 8-2-2000. Today, even before us the learned counsel could not explain the causes for the non-appearance of the appellants as well as their learned counsel before the learned Banking Judge, on the date when their application was dismissed for non-prosecution.

6. In the above perspective, we have examined the impugned judgment and find that the learned Banking Judge did not commit any legal error, while passing the impugned judgment and decree, qua the appellants, thus, the same is maintained.

7. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed. M.B.A./J-59/L Appeal dismissed.