2004 PLP 1711 (CLD)

The appellant filed appeal against the order dated 12‑4‑2002, passed by the Banking Court No.II at Karachi in, Execution Application No.54 of 1992. Brief facts of the case are that the respondent‑Bank filed Suit No.673 of 1983, which was compromised between I the parties and on the basis of the said compromise, compromise decree was passed. In terms of the compromise decree, the respondent‑Bank was not entitled to charge mark‑up for the first four months, however, beyond that period was entitled to charge mark‑up upon the outstanding amount at the rate of 0.45 paisas per thousand per day and appellant No. 1 was liable to pay the same to respondent and such mark‑up amount was payable by the appellant No. 1 within the period of 12 months from the date of the decree. The appellant failed to pay the amount resulting that the respondent -Bank filed execution application on 4‑12‑1991 to execute the decree dated 14‑12‑1988. In the execution application respondent claimed a sum of Rs.17,59,250 and mark‑up of Rs.7,48,583.60 on the balance amount. The appellant filed application under Order XXI, rule 23(2), C.P.C., which was dismissed by the Banking Court vide order dated 12‑4‑2002, against which this appeal has been preferred by the appellant. Heard Mr. Rizwan Ahmed Siddiqui, learned counsel for the appellant. The learned counsel for the appellant mainly argued that since the decree is silent about the payment of the future mark‑up, the respondent is not entitled to claim such amount from the appellant. We have gone through the impugned order and from the perusal of the said order it appears that the appellant has not raised the question about charging of the mark‑up which appellant is now raising before this Court. The appellant has not annexed application under Order XXI, rule 23(2), C.P.C., with memo. of appeal, on which impugned order has been passed, to show and establish that the appellant has raised a question about the charging of mark‑up by the respondent in his application. In these circumstances we are left with no other option but to draw inference that the appellant has not raised this point in his application and as such the learned Banking Court has not passed any specific order in this regard that whether the respondent‑Bank can charge mark‑up on the decretal amount and or whether the decree provided charging of the mark‑up or not. Clauses 6 and 7 of the application under Order XXIII, rule 3, C.P.C. read as under:‑‑ "

6. That the Bank shall not charge mark‑up for the first four months but beyond that period shall be entitled to charge mark‑up on the then outstanding amount at the rate of 0.45 paisas per thousand per day. Such mark‑up amount shall also be paid by the defendant No.1 to the plaintiff within the period of twelve months from the date hereof.

7. That in view of default by the defendant No.1 to any of the above terms and conditions, the plaintiff shall be entitled to recover the entire decretal amount and/or the balance outstanding amount, as the case may be, against the defendant No.1 through direct sale of the mortgaged property in question or any part thereof without notice and intervention of the Court." If above referred clauses 6 and 7 of the application under Order XXIII, rule 3, C.P.C. read with section 34‑B, C.P.C., which provided that "a decree for payment of money due to a banking company of a loan advanced shall provide for the interest or contracted rate of mark‑up on the judgment‑debtor from the date of decree till payment". The only possible interpretation of these clauses can be that appellant is not liable to pay mark‑up on the outstanding due for first four months, but is liable to pay the same on outstanding amount after four months @ 0.45 paisas per thousand per day, and further that appellant shall pay the same within twelve months from the date of order and in case of failure to pay, the respondent‑Bank can be entitled to recover the entire decretal amount and/or the balance outstanding amount through direct sale of the mortgaged property. In this context we are fortified by the dicta of the Hon'ble Supreme Court laid down in the case of Messrs Saudi‑Pak IAIC (Pvt.) Ltd. v. Allied Bank of Pakistan reported in 2003 CLD

596. The relevant observations are reproduced herein-below:‑‑ " .it is a fundamental principle of interpretation of documents and statutes that they are to be interpreted in their entire context following a full consideration of all provisions of the document or statute, as the case may be, that every attempt shall be made to save the document and for this purpose a difference between general statements and particular statements of the document be differentiated properly, to save the document rather to nullify it, that no provision of the document be read in isolation or in bits and pieces, but the entire document is to be read as a whole to gather the intention of the parties, that, the Court for this purpose can resort to the correspondence exchanged between the parties, that the Court shall lean to an interpretation, which will effectuate rather than one, which will invalidate an instrument." These are the reasons of our' short order dated 29‑5‑2003. H.B.T./S‑56/K Order accordingly.