2021 PLP 732 (CLD)

JAWAD HASSAN, J.

Through this Appeal, filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellants have challenged the validity of impugned order dated 26.01.2016 passed by the Banking Court, Bahawalpur (the "Banking Court") whereby it decreed the suit filed by the Respondent-Bank to the tune of Rs.1,61,42,995/- along with cost of funds from the date of expiry i.e. 30.04.2004 till its realization. I. Brief Facts of the Appeal

2. Brief facts of the case are that the Respondent-Bank filed suit for recovery of amount against the Appellants before the Banking Court which was decreed while the Appellants filed suit for cancellation of Mortgage Deed before the Civil Court however, it was returned by it under Order VII, Rule 10, C.P.C. vide order dated 16.12.2004. Appeal against aforesaid order was dismissed and Revision Petition No.232 of 2005 before this Court was disposed of on 04.05.2006 with direction to the Banking Court to consolidate the suits and dispose of them simultaneously. Thereafter, the Banking Court consolidated the suits of the parties and decreed the suit of the Respondent-Bank and refused to grant leave to defend to the Appellants along with rejection of plaint of their suit vide consolidated order dated 14.11.2006. Later on, the said order was set-aside by the Banking Court vide order dated 30.01.2015 upon filing an application by the Appellants under section 12(2), C.P.C. for setting-aside the order dated 14.11.2006. R.F.A. No.78 of 2006 was also filed which was accepted vide order dated 19.02.2015 and consolidated order dated 14.11.2006 was set-aside by remanding the case to the Banking Court to conclude it after taking into consideration the submission of learned counsel. Pursuant to aforesaid directions, amended plaint was filed by the Respondent-Bank and fresh application for leave to defend the suit was filed by the Appellants which was refused and suit of the Respondent-Bank was decreed vide impugned order. Hence this appeal. II. Submissions of the Appellants

3. Mr. Bilal Ahmad Qazi, Advocate Supreme Court/learned counsel for the Appellants inter alia contended that the impugned order is against law and fact; that the Banking Court has not applied its judicial mind while passing the impugned order; that the matter was to be resolved after recording of evidence as there was factual controversy between the parties but the Banking Court adopted summary procedure which is against the law; that the suits between the parties have to be decided through consolidated order by the Banking Court in terms of directions issued by this Court in Civil Revision No.232 of 2005/BWP. III. Submissions of the Respondents

4. On the other hand learned counsel for the Respondent-Bank vehemently controverted the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of the Appeal on the ground that the impugned order has been passed strictly in accordance with law and as per directions of this Court and as such does not call for any interference by this Division Bench.

5. We have heard the arguments of both the sides and perused the record. IV. Opinion of the Court

6. So far as the objection of learned counsel for the Appellants that the Banking Court has passed the impugned order without consolidating the suit of the Appellants, is concerned, suffice it to say that the record of the Banking Court was requisitioned, a minute scanning of the same reveals that the Appellants earlier filed a suit for cancellation of documents against the Respondents Nos.3 to 8 of this Appeal before the Civil Court, Bahawalpur however, the said suit was returned to them for its presentation before the Banking Court vide order dated 16.12.2004. But the Appellants, instead of filing the suit before the Banking Court, opted to assail the aforesaid order through an appeal before the learned Additional District Judge, Bahawalpur however, the said appeal was dismissed vide judgment dated 01.03.2005. The Appellants, thereafter called in question the order dated 01.03.2005 before this Court by filing Civil Revision No.232 of 2005/BWP which was disposed of on 04.05.2006 with direction to the Banking Court to consolidate the suits and dispose of them simultaneously. Afterwards, the Appellants filed application under section 12(2), C.P.C. for setting-aside of order dated 14.11.2006 before the Banking Court, the said application was dismissed by the Banking Court on 03.04.2013. The aforesaid order was further assailed by the Appellants through Civil Revision No.306 of 2013 which was accepted vide order dated 18.12.2013 with the observation that "the impugned order dated 03.04.2013 is set-aside and the application filed by the Petitioners will be deemed to be pending before the learned Judge Banking Court, Bahawalpur who shall decide the same afresh after affording opportunity of hearing to all the concerned". Record also depicts that the Respondent No.8 and the Appellants who were the Respondents Nos.7, 8 to 15 before the Banking Court, filed their leave to defend under section 10 of the Ordinance. Ex-parte proceedings were initiated against the Respondents Nos.5, 6 and 7 of this Appeal on 24.04.2005 while leave to defend of the Respondents Nos.2 to 4 of this Appeal was dismissed due to non-prosecution whereas leave to defend of the Appellants were dismissed by the Banking Court vide order dated 14.11.2006 pursuant to which they have been challenging orders passed by the Banking Court before this Court, however, did not opt to file separate suit for cancellation of documents instead of filing the suit.

7. Moreover, the Appellants had all the opportunity to defend their case before the Banking Court under section 10 of the Ordinance. Section 10(3) of the Ordinance clearly states that the application for leave to defend shall be in the form of a written statement, which shall be summary of the substantial questions of law and facts. The section 10(3) of the Ordinance clearly provides that that leave to defend shall also be in such form which contain a summary of the substantial questions of law as well as fact in respect of which evidence needs to be recorded which should be filed according to Section 10(4) of the Ordinance. This solid ground to defend their case was available to the Appellants having all the opportunity to file all necessary documents to prove their case after recording of evidence by the Banking Court, then leave may be granted to them. But in this case, we have considered the leave to defend filed by the Appellants wherein they have generally denied all the allegations without any cogent reasons. Section 10(4) of the Ordinance specifically states that about amount of finance under section 10(4)(a)(b)(c)(d) which they have failed to mention in their leave to defend. The Banking Court under section 10 of the Ordinance, after hearing the parties, has the option to reject the leave to defend and pass the judgment. In the case in hand, mere statement of the Appellants that their suit is pending which has not been decided while passing the Impugned Order is no ground to substantiate their claim because it is admitted from the record that no such suit was ever filed by the Appellants before the Banking Court. Furthermore, the order passed in Civil Revision No.232 of 2005/BWP has no relevancy to the proceedings before the Banking Court as the Banking Court, which is established under Section 5 and powers given under section 7 of the Ordinance, has to follow its own procedure for decision of cases.

8. So, in view of the above circumstances, it is quite clear that no suit, whatsoever was ever filed by the Appellants before the Banking Court as was rightly observed by the Banking Court in the impugned order. Hence, the objection of the Appellants is turned down. Even otherwise non-consolidation of suits has not caused any prejudice to the Appellants as they availed opportunity to put forth their stance and advance their case by filing application for leave to defend the suit.

9. Another objection of the Appellants is that the impugned order has been passed without looking into the substance of the record as well as pleas raised by them. The minute examination of the record reveals that the Appellants on the one hand have denied all types of relationship with the Respondents including execution of mortgage deeds but on the other hand the said stance was totally negated by the Respondents Nos.2 to 7 in their leave to defend and even the Banking Court had already given its observation on it. It was observed by the Banking Court that "the suit is not only based on mortgage deeds executed by the defendants Nos.8 to 15 rather it is also based on mortgage deeds executed by the defendants Nos.2 to 4 beside the said securities it was also based on demand promissory note, the letter of agreement and irrevocable general power of attorney". On the contrary, the Respondents through production of substantial documents, have established on record, that finance facility was availed which fact is also evident from the order passed by this Court on 04.02.2020 wherein the counsel for the Respondents Nos.2 to 7 sought time to await decision on their application filed before the Respondent-Bank for the payment of outstanding amount. As such the Banking Court has rightly refused leave to the Appellants. Moreover, the impugned order depicts that while deciding the matter the Banking Court has taken into consideration all the grounds mentioned by the Appellants in the application for leave to defend the suit. The record further reflects that the Respondent-Bank has also appended with the suit all the relevant documents which were executed between the parties and that went unshaken, therefore, the Banking Court after appreciating whole record has passed the impugned order.

10. In view of the above situation, we fully agree with the findings of the Banking Court and do not find any illegality or perversity in the impugned order which has been passed in consonance with the spirit of law and available record hence, does not call for interference by us.

11. As a sequel, this Appeal, being devoid of any merit, is hereby dismissed. SA/G-11/L Appeal dismissed.