2004 PLP 212 (CLD)

Haji Zahir Shah for Appellant. Date of hearing: 2nd October, 2003. IJAZ‑UL‑HASSAN KHAN, J.‑‑‑The present Appeal bearing No.31 of 2003 calls in question the legality and propriety of the judgment and decree dated 8‑4‑2003 passed by learned Judge Banking Court‑II, N.‑W.F.P., Peshawar whereby application of appellant‑defendant for grant of leave to appear and defend the suit was dismissed with the result that the respondent‑plaintiff was granted decree as prayed for with costs.

2. Shortly narrated the facts are that House Building Finance Corporation, Peshawar through its General Manager, instituted suit against Karim Bakhsh appellant‑defendant for recovery of Rs.271,

878. As per agreement defendant was bound to repay the monthly investment liability regularly till the full and final repayment of investment alongwith profit on rent/share based thereon, otherwise the Corporation to levy charges as per rules/regulations. It appears that despite repeated notices the repayment performance of the defendant remained unsatisfactory and he failed to adjust his loan account alongwith specified profit/mark‑up uptil the date of repayment. In view of the failure on the part of the defendant, the Corporation was constrained to file recovery suit before Judge Banking Court, N.‑W.F.P., Peshawar. In response to the service of summons defendant appeared in Court resisted the Corporation claim and submitted an application for grant of leave to appear and defend the suit. The application was strongly opposed and ultimately dismissed through the impugned judgment and decree with the observations:‑‑ "In the application for grant of leave to defend, the defendant has raised no prima facie or bona fide dispute which may warrant the grant of leave to defend. In the said application some stereo types of allegations have been levelled by the defendant which are not supported by any documentary proof ." Haji Muhammad Zahir Shah, Advocate for the appellant bitterly criticized the impugned judgment and decree and contended that the learned trial Judge has acted in haste and passed the impugned judgment in a mechanical manner ignoring the dictates of natural justice and that there existed plausible grounds and reasons for grant of leave which were totally excluded out of consideration, which has materially prejudicied the interest of the appellant. He also contended that entries reflected in the statement of account do not depict a true picture of the transaction and the mark‑up levied is not in accordance with the agreement and this factual position could not have been resolved without recording evidence. The submissions of the learned counsel carry no weight. The availment of loan and the execution of documents have not been denied. The repayment performance of the appellant is not satisfactory. It has been clearly mentioned by the learned trial Judge that the financial facility was availed in the year 1989 and till 31‑12‑2000 a nominal payment of Rs.5,000 has been made. The previous conduct of the appellant is clearly indicative of the fact that he is not in a fit mood to discharge his liability and repay the Corporation dues. The entries incorporated in the statement of account are correct and according to the Corporation record and no incorrect or fictitious entry has been pointed out. The profit has also been claimed and levied according to the agreed rate and no document having bearing on the case appears to have escaped notice of the learned trial Judge. It is not denied that the defendant seeking to appear and defend the suit must disclose a plausible defence or show that there are substantial questions of facts and law which need to be tried otherwise leave has to be refused, and decree shall follow in the suit. In the present case we agree with the learned trial Judge that the application for leave to defend the suit moved on behalf of the defendant shows no disclosoure of any plausible defence or suggests any triable issues, but only vague and routine type objections have been taken which have been rightly ignored. Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Ltd. 1992 CLC 1906 Peshawar. The impugned judgment and decree is dated 8‑4‑2003 and the appeal has been filed on 21‑5‑2003. Though the appeal is accompanied by an application for condonation of delay in filing appeal but no cogent reason has been mentioned therein justifying extension in filing appeal. The appeal having been found barred by time merits dismissal on this ground as well. In the result and for the foregoing reasons, finding no force in the appeal we dismiss the same in limine and maintain the impugned judgment and decree. The listed‑application (C.M. No.287 of 2003) also meets the same fate. M.H./977/P Appeal dismissed.