2005 PLP 1023 (CLD)

Sultan Tanvir Ahmad for Respondent. Date of hearing: 10th November, 2003. MUHAMMAD SAIR ALI, J.‑‑‑Agricultural Development Bank of Pakistan i.e. the respondent‑Bank, on 3‑11‑2001 filed a suit for recovery of Rs.502,351 against the appellant asserting non‑payment of finance of Rs.319,000 sanctioned to the petitioner for purchase of a tractor. And that finance and security documents including an agreement were executed by the appellant who also created mortgage over his agricultural land as security for the loan. And that certificate of creation of charge was also duly registered. Upon service of notice petition for leave to defend the suit in the form of written statement was filed by the appellant. This leave petition was dismissed by the learned Banking Court No.1, Gujranwala and judgment and decree for Rs.502,351 with cost and cost of funds was passed by the learned Banking Court against the appellant. The above referred judgment and decree of the learned Banking Court, Gujranwala, has been challenged by the appellant through the present appeal.

2. The learned counsel for the appellant has reiterated the principal stand urged by the appellant in his leave application that he applied for the finance but was never delivered a tractor or the loan amount thereof by the Manager of the respondent- Bank who committed a fraud against the appellant. The learned counsel thus contended that he had raised a plausible issue requiring a trial.

3. We have considered the submissions of the learned counsel for the appellant and have also examined the record.

4. The suit as filed by the respondent‑Bank for recovery of Rs.502,351 was supported by documents of finance as well as security documents which were neither seriously challenged nor denied by the appellant in the leave application. The issue raised by the appellant in the leave petition was that the loan of Rs.319,000 was sanctioned to the appellant on 21‑5‑1997 and documents were obtained by the respondent‑Bank for a tractor, but delivery of the said tractor was obtained by the Manager of the Bank who sold the same and misappropriated the proceeds thereof. Further that the Manager of the respondent‑Bank committed a fraud upon the petitioner for which F.I.R No.391 of 1997 was registered at the behest of the appellant under sections 420, 406, 468 and 471, P.P.C. at Police Station Lathay Wala Waraich, wherefor the appellant has a plausible and serious defence to offer. It was on this question of fact that the learned counsel for the appellant claimed a trial and inquiry on the questions of fraud and misappropriation by the Manager of the respondent‑Bank.

5. The submissions of the appellant and those of his learned counsel as raised above have already been dealt with and decided by an Honourable Single Bench of this Court in appellant's Writ Petition No. 359 of 1999 titled Soofi Allah Rakha v. D.I.G. and others, through judgment dated 11‑10‑1999, wherein it was held that:‑‑ "A perusal of the record indicates that the petitioner did apply for the purchase of a tractor, which was duly sold to him. Petitioner was given invoice, which he accordingly signed. According to the gate‑pass, the petitioner on 29th May, 1997 himself took the tractor out of the Factory premises, thereafter he sold the same to Saboor Khan and the receipt was duly signed by the petitioner. In these circumstances, all the documents available on the file indicate that the petitioner was given delivery of the tractor, which he accordingly took and subsequently sold."

6. The appellant did not file any appeal against the above said judgment dated 11‑10‑1999, wherefor the same became final and conclusive. It was thus not open to the appellant to raise the same contention before the learned Banking Court in his leave petition. The matter stood finally and conclusively decided. No issue thus existed to allow appellant a trial in the recovery suit of respondent‑Bank. The learned Banking Court thus validly rejected appellant's petition for leave to defend the suit and proceeded to pass the judgment and decree.

7. We do not find any infirmity in the impugned judgment and decree. This appeal is therefore dismissed with costs. M.H./A‑1056/L Appeal dismissed.