2005 PLP 393 (CLD)

‑‑‑‑S. 10‑‑‑Application for leave to appear and defend the suit, dismissal of‑‑‑Non‑speaking order‑‑‑Banking Court disposed of objection of defendants by observing that "they are of casual and routine type and need not any discussion" and dismissed the application‑‑‑Effect‑‑‑Such finding of Banking Court was not a judicial dispensation because the Court was required to attend the objections raised in the application and if the Court was not persuaded, the reasons should have been recorded. Shahid Ikram Siddiqui for Appellants. Nemo for Respondent. Date of hearing: 22nd June, 2004. On, 13‑9‑1997 the respondent‑Bank filed a suit for recovery of an amount of Rs.1,11,60,354 against the appellants. Respondents Nos. 1 to 5 and respondents Nos.6 to 11 filed separate applications for leave to appear and defend. The grounds, inter alia, taken therein were that the suit had not been filed by a duly authorized person and was not accompanied with the statement of accounts. The aforesaid leave applications were dismissed by the learned Banking Court vide judgment dated 12‑9‑1998 and the suit filed by the respondent was decreed.

2. The learned counsel has pressed the aforesaid contentions before us. He further submits that the finance agreement dated 27‑11‑1996 (referred to in the irrevocable general power of attorney executed by appellants Nos.6 to 11 in favour of the respondent‑Bank) was not produced by the decree‑holder Bank.

3. Reliance was placed by the learned counsel on an unreported judgment of this Court in R.F.A. No.380 of 1999 decided on 25‑9‑2003 which, in turn, was based on a number of judgments of the Superior Courts of our country, particularly, Bankers Equity Ltd. through Attorney and 5 others v. Sunflo Cit‑Russ Ltd. PLD 1999 Lahore 450.

4. We have examined the record with his assistance and find that in ground (a) in both the applications filed by the appellants it was specifically averred that the suit had not been filed by duly authorized person. In reply, the respondent‑Bank had denied it with an averment "the suit has been filed by a duly authorized Senior Vice‑President holding a valid authority/ attorney." We have carefully examined the record. We did not find any authorization in favour of Mr. Mazhar Qayyum through whom the suit was filed and the learned counsel was engaged to represent the respondent Bank. Unfortunately, this important ground has not been adverted to by the learned Banking Court in the impugned judgment.

5. Examination of the record further shows that a "Recovery Certificate" signed by Vice‑President showing the total liability of the appellants, was placed on the record. As for as the objection of the appellants regarding non- filing of statement of accounts is concerned, the learned Banking Court observed that "the same is treated as the statement of accounts." It is not possible to agree with the view taken by the learned Banking Court. The aforesaid certificate did not qualify as a statement of account and if at all it did so qualify it was not verified in accordance with the provisions of Bankers Book Evidence Act, 1891. The judgment of a D.B. of this Court in R.F.A. No.380 of 1994 fully supports the first contention of learned counsel for the appellants.

6. Perusal of the impugned judgment shows that the learned Banking Court disposed of all other objections of the appellants by observing that "they are of casual and routine type and need not any discussion." This finding is also not a judicial dispensation because the learned Banking Judge was required to attend the objections raised in the applications for leave to appear and defend and if it was not persuaded, to have recorded reasons therefore.

7. For what has been stated above, this appeal is allowed. The impugned judgment and decree are set aside. Resultantly, the applications of the appellants for the grant of leave to appear and defend shall be deemed to be pending before the learned Banking Court to be decided afresh in accordance with law after hearing the parties. M. H./R‑79/L Case remanded.