2005 PLP 998 (CLD)

Kh. Muhammad Saeed for Respondent. Date of hearing: 20th April, 2004. MAULVI ANWARUI. HAQ, J.‑‑‑On 4‑2‑1999 the respondent‑Bank filed a suit against the appellants for recovery of Rs.29,468,

665. In the plaint, it was stated that on 21‑1‑1992 the appellants‑Company made a request for short term financial facility of Rs. 5.00 million. This limit was approved on 21‑7‑1992 as FAPC limit against mortgage of property and pledge of Directors' share of Rs. Four million. The appellants provided securities as detailed in paras.9, 10 and 11 of the plaint. It was then abruptly stated that the amount due from the appellants on account of FAPC as on 1‑1‑1998 is Rs.21,676.718. On account of running finance as on 31‑12‑1992 including penalty of State Bank and Central Excise Duty is Rs.1,958,

229. Mark‑up till 31‑12‑1997 was calculated as Rs.2,218,020 while mark‑up from 1‑1‑1998 to 31‑12‑1998 was stated to be Rs.3,615,

698. Thus, a decree for the said suit amount was prayed for. The appellants were served in the manner prescribed by law. They put in appearance and filed an application under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for leave to appear and defend. In this application, the appellants stated that as stated in the plaint, only the facility of Rs. Five million was availed which facility according to them had been paid back. They denied having availed any other facility. The learned trial Court vide judgment and decree dated 4‑6‑1999 refused to grant leave and passed a decree for the recovery of the said suit amount with mark‑up till realization and costs.

2. Learned counsel for the appellants contends that in the plaint there is reference, only to one facility i.e. which is of Rs. Five million. This was admitted and payment was pleaded. According to the learned counsel, there is nothing on record to support that any other amount was ever requested or made available by the respondent‑Bank. Learned counsel for the respondent‑Bank, on the other hand, has tried to support the impugned judgment and decree of the learned Judge, Banking Court.

3. We have examined the trial Court records, with the assistance of the learned counsel for the parties. We have already reproduced above the contents of the plaint. Now in the plaint, there is a specific mention of only one facility of Rs. Five million having been made available to the appellants against the securities mentioned in the plaint. We called upon the learned counsel for the Bank to explain as to how a claim of Rs.29 million has been raised against the appellants particularly when the mark‑up has been separately calculated. He is unable to do so and concedes that it will require evidence to support the said claim of the Bank. Learned counsel for the appellants, on the other hand, maintains the admission regarding the availing of the facility of Rs. Five million with the contention that the same was paid back. However, he is also unable to support the said latter contention.

4. In the above state of affairs presently existing on the record, we do find that the learned trial Court has proceeded in the matter without even examining the plaint. This R.F.A. is accordingly allowed and disposed of in the following manner:‑‑ (i) In view of the admission made by the appellants, an interim decree for recovery of Rs. Five, million with proportionate mark‑up at the agreed rate is passed in favour of the defendant‑Bank and against the appellants. (ii) Regarding the remaining suit amount, we grant leave to the appellants to defend, the suit. (iii) The records and a copy of this judgment be immediately remitted back to the learned trial Court (Banking Court No.II, Lahore) for further proceedings. (iv) No orders as to costs. M.H./S‑105/L Order accordingly.