2005 PLP 1437 (CLD)

MIAN HAMID FAROOQ, J.

Appellants/ judgment debtors, through the filing of the present first appeal have called in question judgment and decree dated 13-6-2001 whereby the learned Judge Banking Court after finding that the "defendants have failed to establish any ground for the grant of leave to defend the suit". Dismissed their leave application and consequently passed a decree for recovery of Rs.9,13,172 together with costs and mark-up jointly and severally against the appellants.

2. Precisely stated, the facts of the case are that the respondent-Bank, on 1-2-2001, filed the suit for recovery of Rs. 1,009,772.00, against the appellants, before the Banking Court, inter alia, pleading that a running finance facility for a sum of Rs.7,00.000, which was subsequently enhanced to Rs.10,00,000 , on the request of defendants Nos.1 and 2, was sanctioned in favour of defendant. No.1 ; the defendants executed the documents in favour of the Bank; defendants Nos.3 and 4 stood guarantors and also mortgaged the property; finance facility was availed, the appellants committed default in fulfilling their contractual obligations and their failure to liquidate the outstanding liability necessitated the filing of the suit. The appellants filed the application seeking leave to defend the suit on the grounds that the suit has not been instituted by duly authorized persons, the suit is without cause of action and one Saqib Mehmood, the Manager of the respondent-Bank, fraudulently misappropriated appellant's cheque of Rs.4,50,000 and also illegally withdrew the amount of Rs.2,00,000 from their account and fraud has been reported to the F.I.A., which is investigating the matter. The learned Banking Court, after hearing the parties, dismissed their leave application and passed a decree for recovery of Rs.9,13,172, together with costs and mark-up, jointly and severally, against the appellants, vide impugned judgment dated 13-6-2001, hence the present appeal.

3. Learned counsel for the appellants has contended that Saqib Mehmood, the Manager of the respondent-Bank, misappropriated a sum of Rs.7,50,000 from the account of the appellants, for which F.I.R. was lodged. He has further submitted that although financial facility of Rs.7,00,000 was sanctioned and availed by the appellants, yet the said facility was never enhanced to Rs.10,00,000, as alleged by the respondent-Bank. He, while referring to photocopy of pay-in?-slip dated 18-12-1999, has submitted that an amount of Rs.1,00,000, deposited by the appellants, has not been credited in their account. Conversely, the learned counsel for the respondent-Bank, while refuting the aforesaid contentions, has submitted that the Bank is not responsible for the alleged private transaction, which was undertaken between the appellants and the Manager of the respondent-Bank. He has further submitted that the appellants did not lodge any complaint and even failed to bring this fact to the notice of the appellant at the appropriate stage. He has added that financial facility was enhanced from Rs.7,00,000 to Rs.10,00,000 at the specific request of the defendant No.2 and letter whereof has been placed on record.

4. On a query raised by this Court, the learned counsel for the appellants has admitted the availing of financial facility of Rs.7,00,000 and the execution of documents on the basis of which the respondent-Bank filed the suit.

5. We have heard the learned counsel for the parties and perused the summoned record. Although the appellants, in their application for leave to defend the suit, did raise the plea that the Branch Manager of the respondent-Bank, namely Saqib Mehmood, was the real beneficiary of the whole finance and he misappropriated a sum of Rs.6,50,000 by misusing two cheques, however, the appellants did not produce any documentary evidence. The learned Banking Court has dealt with the said plea and decided it against the appellants primarily on the ground that they failed to place any documentary proof on record in this regard. It is true that the appellants did not produce any documents in support of their said assertion before the learned Banking Court, however, while filing the instant appeal, they submitted photocopies of two cheques dated 4-1-2000 (sic) and 29-9-1999 and pay-in-slip dated 18-12-1999. Admittedly, these documents were not before the learned Banking Court at the time of rendering the impugned judgment. We feel that the appellants should have placed all the documents' before the learned Banking Court. On account of lack of production of these documents, the learned Banking Court, while deciding appellant's application seeking leave to defend the suit, was deprived of the examination of these documents at the appropriate stage. If the said documents were before the learned Banking Court, it is possible that the Banking Court might be persuaded to grant the appellants leave to defend the suit. The appellants ought to I' have filed all the documents along with their leave application, which they failed to do so, however, we feel that in the interest of justice they should not be penalized on account of the said error. I-Iad those documents been on record, the fate of appellant's application and the suit might have been different. These documents gain more importance in view of the allegation of the appellants that upon filing a complaint by the appellants, aforesaid Saqib Mehmood was dismissed from service and an F.I.R. on these charges was registered against him.

6. There is another aspect of the case. We find from the record that the learned Banking Court, without dealing with and deciding all the pleas raised on behalf of the appellants, non-suited them taking the matter causally and in a cursory way. The Courts of law are expected to be more vigilant, conscious and considerate while deciding the valuable rights of the parties. To our mind, the learned Banking Court was obliged under the law to deal and decide the pleas raised by the appellants before it. Even it has been enjoined upon an executive authority, as per section 24(A) of General Clauses Act, 1897 (inserted by General Clauses (Amendment Act:, 1997, Act No.XI of 1997) to give reasons for making the order.

7. We have also examined pay-in-slip dated 18-12-1999, in juxtaposition with the statement of accounts, and find that it prima facie shows the deposit of Rs.1,00,000 but the same has not been credited in the account of the appellants. However, we have refrained from giving our findings on this issue, as we are inclined to remand the case to the learned Banking Court.

8. In the above perspective, we have examined the impugned judgment and find that the same is not sustainable in law and we are inclined to set aside the same.

9. Upshot of the above discussion is that the present appeal is decided in the following terms: (i)???????? The appeal is allowed and the impugned judgment and decree dated 13-6-2001 are set aside. (ii)??????? Resultantly, appellant's application seeking leave to defend the suit and respondent-Bank's suit shall be deemed to be pending before the learned Banking Court. (iii)?????? Appellants are allowed to file the additional documents, including copies of those documents, which have been placed on record of the appeal, before the learned Banking Court. (iv)?????? Respondent-Bank is also permitted to place on record documents, if so advised. (v)??????? The learned Banking Court shall decide appellant's leave application, afresh, alter hearing the parties and of course in accordance with law, without being impressed by any of the observations made by this Court. (vi)?????? After the acceptance or dismissal of appellant's leave application, as the case may be, the learned Banking Court shall re-decide Bank's suit in accordance with law. (vii)????? The parties are directed to appear, on 25-4-2005, before the Administrative Judge Banking Court, Lahore, who may hear the case himself or entrust the same to another Banking Court according to his own administrative arrangements. (viii)????? No order as to costs. M.H./R-132/L????????????????????????????????????????????????????????????????????????????????????? Case remanded.