2002 PLP 274 (CLD)

JAWWAD S.KHAWAJA, J.‑‑‑ This appeal assails the judgment and decree dated 9‑4‑2001 passed by the learned Banking Court‑V, Lahore. 2 Despite repeated calls, none has appeared for the respondent‑Bank. In fact, a message was also sent to the office of the Bar Association requiring the respondent's counsel to appear, but he has not done so. In these circumstances, this appeal has been heard in the absence of respondent's learned counsel.

3. Learned counsel for the appellants has argued that a suit was filed by the respondent/ plaintiff on 28‑1‑1998 for recovery of a sum of Rs.9,73,154 against the appellants/ defendants. The appellants filed an application seeking leave to appear and defend, which was allowed on 19‑10‑1999. Thereafter, a written statement was duly submitted in Court by the respondent‑Bank.

4. The learned Banking Court thereafter proceeded to frame a preliminary issue on 12‑11‑1999 as under:‑‑ "Whether the suit is filed by a legally competent person? If not, the effect thereof. OPP"

5. The respondent‑Bank was called to lead evidence on the aforesaid preliminary issue. It, however, appears that the said Bank proceeded to adduce documentary evidence in respect of the entire case of the respondent‑Bank and did not confine itself to the preliminary issue.

6. By means of the impugned judgment dated 9‑4‑2001, the preliminary issue was decided in favour of the respondent‑Bank. Through the same judgment, without, first, framing issues arising out of, the pleadings of the parties and without allowing the appellants/ defendants to adduce evidence, the learned Banking Court passed the impugned, judgment and decree. The learned Banking Court proceeded on the premise that leave was only granted to the appellants/ defendants in respect of the preliminary issue, noted above and not on other matters. It is on this basis that the learned Banking Court did not consider it necessary to frame further issues on the pleadings and, in fact, proceeded in the matter as if leave had not been granted to the appellants/ defendants' in respect of matters arising out of the pleadings other than those reflected in Preliminary Issue No. 1.

7. The provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 relating to grant of leave are set out in sections 9 and 10 thereof. The said statutory provisions envisage grant of leave or refusal thereof. There is no provision permitting the Banking Court to grant leave conditionally or in respect of some matters and not in respect of others. In the present case, the order dated 19‑10‑1999 does state that leave to appear and defend the suit has been granted to the appellants /defendant. Notwithstanding this position: the learned Banking Court proceeded as above.

8. The manner, in which the learned Banking Court harp proceeded, is not permissible under the provisions of the Banking Companies (Recovery of Loans, Advances', Credits and Finances) Act, 1997. Learned counsel for the appellants has also referred to the case titled Agrofoster (Pvt.) Limited and 2 others v. Judge, Banking Court No.5, Karachi and another PLD 1999 Kar. 398 which supports his argument that once leave is granted, the suit has to proceed as a regular long cause in all respects.

9. In view of the foregoing discussion, we would set' aside the impugned judgment and decree dated 9‑4‑2001. The case shall be remanded to the Banking Court No.V, Lahore, which shall deal with the matter as a regular long cause. The parties are directed to appear before the learned Banking Court No.V, Lahore on 25‑10‑2001. The record of the Banking Court, which was requisitioned for the purpose of this appeal, shall be returned by the office forthwith. S.A.K./R‑91/L Case remanded.