2021 PLP 1438 (CLD)

QAISER RASHID KHAN, J.

Through the appeal in hand, the appellants have called in question the judgment and decree dated 17.04.2010 of the learned Banking Court-I, Peshawar whereby their application for leave to defend a recovery suit filed against them by the respondent-bank was turned down and the suit, except the liquidated damages, along with costs of funds and cost of suit was decreed against them.

2. The learned counsel for the appellants contends that initially the appellants had availed of Non Interest Cash Finance Facility (NICF) to the tune of Rs. 3.000 million from the respondent-bank way back in the year 2003 for a term of one year and after its expiry it was never renewed thereafter and that the appellants continued to make payment to the respondent-bank but somehow the latter on its own produced a document in the form of sanction advice for which neither any request was made by the appellants nor any document pursuant to its terms and conditions was ever executed by them but was made the basis for filing the recovery of suit against the appellants and more so, that over the period, the appellants had paid Rs.2472984/- to the respondent-bank but instead of crediting the same to the outstanding mark-up amount, the same has been shown outstanding against them and thereby the exaggerated amount Rs. 2,818,574/55 has been shown against the appellants. He further contends that the last sanction advice which is disputed by the appellants also shows that the same was for a term of 12 months but somehow the same has been made the basis for initiating the recovery proceedings against the appellants and that too, in the absence of any document i.e. letter of request, sanction advice, charge documents etc from the year 2004 till 2009. He also contends that the first part of the statement of account showing the amount of Rs. 2699000/- is not supported by a certificate within the meaning of Financial Institutions (Recovery of Finances), Ordinance, 2001 and thus the facts and circumstances indeed warrant the grant of leave to defend the suit to the appellants. Such contentions of the learned counsel for the appellants are resisted by the learned counsel for the respondent-bank who supports the impugned judgment and decree of the learned trial court on almost the same grounds as detailed therein, albeit with the addition that it was on account of the bouncing of the cheques of the appellants issued in favour the respondent-bank pursuant to the sanction advice of the year 2009 which necessitated the filing of the recovery of suit against the appellants.

3. Arguments heard and the available record perused.

4. As the record unfolds which also stands undisputed at the appellants' end, the latter initially filed an application to the respondent-bank for the grant of finance assistance in the shape of Non Interest Cash Finance Facility (NICF) to the tune of Rs. 3.000 million which was duly sanctioned vide sanction letter dated 22.11.2003 with its expiry date as 10.04.2004 and the appellants executed various charge documents in favour of the respondent-bank including the agreement for finance, demand promissory note with its buy-back price, the letter of hypothecation and by way of collateral security, they also mortgaged their property in favour of the respondent-bank. So far so good.

5. It also appears from the record that thereafter the business relationship between the parties did not work well and some dispute arose between them. There is a letter dated 14.04.2009 before us which has been addressed by the appellants on their letter pad to the respondent-bank seeking some renewal/rescheduling of the outstanding amount and that is how a fresh document dated 20.05.2009 was issued specifying therein the purpose of the renewal of the agreed facility. The said document has been duly acknowledged/accepted by the appellants. Pursuant to the same, the appellants also executed Finance agreement and demand promissory note for Rs. 3178612/-. During that period, they issued four cheques each for a sum of Rs.1,00,000/- favouring the respondent-bank which were bounced at the bank's counter and in turn prompting the bank to file a recovery suit against the appellants. The statement of account has been bifurcated into two parts i.e. one showing the amount so withdrawn by the appellants from the bank at the time of first sanction advice in the year 2003 with some deposits as well.

6. Similarly, the entries in the statement of account also shows that the mark-up has been charged on the account of the appellants from time to time and on its recovery at regular intervals, the balance has in turn been shown to be `nil' which is in accordance with the Banking Practice and Procedure. The statement of account has been lastly certified as per section 4 of the Bankers' Books Evidence Act 1891 and also within the meaning of section 9 of the Financial Institutions (Recovery of Finances) Ordinance 2001. No challenge as such has been thrown to the said entries in the leave to defend application except some perfunctory assertions.

7. In view of the foregoing discussions, we find no merit in the present appeal and the same is accordingly dismissed. KMZ/164/P Appeal dismissed.