2005 PLP 1108 (CLD)

MIAN SAQIB NISAR, J.

Respondent-Bank brought a suit for recovery of an amount of Rs.88,77,718.50, against the defendant No.1 as principal borrower and the other defendants as mortgagors/guarantors. In the suit, the appellants moved an application for leave to appear and defend, which has been disallowed by the learned Banking Court, vide order dated 9-9-1999 and correspondingly the decree to the tune of the suit amount, has been passed in favour of the respondent and against the defendants jointly and severally. Hence this appeal.

2. The learned counsel for the appellants has argued that the case of the respondent-Bank is that appellant No.1 had applied and availed the loan facility vide mark-up agreement dated 7-7-1993 and Mst. Mehraj Begum, one of the defendants had mortgaged her property as a security thereof, whereas the other defendants had given their personal guarantees. But Mst. Mehraj Begum had died in the year 1988, whereas her property is shown to have been mortgaged in the year 1991, resultantly, this is a fraudulent, unauthorized and illegal act on part of the bank. Moreover, according to the sanction advise, the rate of mark-up is 42 Ps per thousand, but erroneously and unauthorizedly 60 Ps per thousand has been charged in the statement of accounts only Rs.1.500 Million was sanctioned as facility and enhancement to 5.000 Million subsequently is illegal and was not made at the request of the appellant No.1, nor this amount was availed. It is also the case of Iqbal Farid, one of the appellants/guarantors, that during the relevant period, he was not in Pakistan and therefore, any guarantee document allegedly executed by him is illegal and unauthorized. On the strength of the above, it is submitted that these being substantial questions of law and facts and the appellants having raised a bona fide dispute, they were entitled to the grant of leave.

3. As regard the first argument that Mst. Mehraj Begum had died, suffice it to say that she was impleaded as one of the defendants and had been proceeded ex parte. None of her legal heir has ever come forward for their being arrayed as party in her place, nor the legal heirs of Mst. Mehraj Begum has filed any appeal against the impugned judgment and decree. No death certificate of Mst. Mehraj Begum has been placed on record to prima facie show that she died on 6-2-1988, resultantly, simple allegation in this behalf, is absolutely unfounded. As far as the overcharging of mark-up is concerned, this is not one of the pleas raised by the appellants in their leave application. As regard the question of enhancement of the facility is concerned, there is a letter available on the record dated 28-8-1991 whereby the enhancement was requested and was sanctioned by the Bank through its advise dated 5-7-1993.

4. As far as the argument of Iqbal Farid that during the relevant period, he was not in Pakistan, suffice it to say that no documentary evidence has been placed on the record, showing his absence from the country. Inter alia for the above reasons, learned Court below has rightly concluded that the appellants have failed to raise any bona fide dispute and therefore, are not entitled to seek the leave to appear and defend; their application was properly dismissed, consequent whereupon the impugned judgment and decree has been passed, which does not suffer from any legal or factual infirmity, calling for interference in the appeal. Dismissed. M.H./S-793/L Appeal dismissed.