2015 PLP 1167 (CLD)

ABID AZIZ SHEIKH, J.

We have heard this appeal at full length, therefore, we are deciding it as PAKKA case.

2. This appeal has been filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the impugned judgment and decreed dated 14-3-2013 passed by learned Banking Court-I, Multan to the extent of repayment of decretal amount in installments.

3. Brief facts of the case are that appellant filed a suit for recovery of Rs.2,49,59,540.45 along with mark up against respondents before Banking Court-I, Multan on 16-9-2010. The respondents filed an application for leave to defend on 10-11-2010, which was replied by the appellant. Finally the suit came up for hearing before the learned Banking Court on 14-3-2013 on which date, the learned Banking Court with the consent of the parties passed a partial decree for an amount of Rs.1,41,83,877 with costs of suit and cost of funds from the date of default i.e. 20-5-2009 till the final satisfaction of the decree. Whereas the remaining claim of the appellant-bank was dismissed. At the time of passing of the consenting decree, the learned counsel for the respondents requested for installments which was objected by the appellant counsel, however, the objection was over-ruled by the learned Banking Court and the respondents were allowed to deposit the decretal amount in four installments given as under:- (i) 1st Installment of Rs.2.00 (M) on or before 31-5-2013. (ii) 2nd Installment of Rs.10.00 (M) on or before 31-7-2013. (iii) 3rd Installment of Rs.5.00 (M) on or before 30-11-2013. (iv) And remaining amount along with cost of fund and cost of suit on or before 31-3-2014. Being aggrieved of the impugned judgment and decree to the extent of repayment of amount in installments, this appeal is filed by the Appellant/plaintiff seeking modification of the decree to the extent that the decretal amount be paid in lump sum.

4. The learned counsel for the appellant to support his contentions has argued that while giving its consent to the decree, the appellant never agreed to the installments and therefore, the learned Banking Court could not order for payment of decretal amount in installments without the consent of the appellant-bank. Further argued that the decretal amount was sufficiently secure through mortgage and in any case, the respondents are resourceful persons, therefore, no sufficient reasons were available or even given for granting concession of installments to the respondents by the learned Banking Court. Adds that the suit was filed for recovery of Rs.2,49,59,540.45 which was already reduced to Rs.1,41,83,877 by the appellant-bank itself, therefore on top of it, no further relief could be granted by the learned Banking Court. It is also argued that provisions of Order XX, Rule 11 of Code of Civil Procedure, 1908 (C.P.C.) are not applicable to the present case. 5 Conversely the learned counsel for the respondent argued that the learned Banking Court had jurisdiction under Order XX, Rule 11, C.P.C. for payment of decretal amount through installments. Further submits that the respondents have already paid the principle amount and only cost of funds and costs of suit is outstanding. Reliance is placed on Wilayat Hussain v. Zeb-un-Nisa (PLD 1979 Note 10 (Lahore).

6. We have heard the learned counsel for the parties, given anxious consideration to the submissions made by them and carefully perused the record.

7. Perusal of record reveals that the appellant filed a suit for recovery of Rs.2,49,59,540.45 with mark up and cost of funds, however, on 14-3-2013, the learned counsel for the appellant agreed for partial decree of the suit to the tune of Rs.1,41,83,877 with costs of suit and cost of funds but never agreed for the payment of decretal amount in installments. In such eventuality, the learned Banking Court had the option either to refuse the passing of the consenting decree as there was no agreement between the parties on mode of payment or the learned Banking Court could itself after giving hearing to the parties on the issue and by giving sufficient reasons could make order for payment of decretal amount in installments. The perusal of impugned judgment shows that while over-ruling the objection of the appellant, the learned Banking Court passed order for the payment in 4 installments in mechanical manner without giving sufficient reasons for passing order for payment in four installments. Under provisions of Order XX, Rule 11, C.P.C., it is provided that where a Court passes an order for the payment of decree in installments, the Court must give sufficient reasons. For ready reference, the provisions of Order XX, Rule 11, C.P.C. are reproduced hereunder:- Decree may direct payment by instalments.

(1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decree shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. Order, after decree, for payment by installments.

(2) After the passing of any such decree the Court may, on application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decree shall be postponed or shall be made by instalments on such terms as to payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

8. In the impugned judgment and decree, no facts and circumstances of the case were discussed before allowing the respondent to make payment of decretal amount in installments. There is also force in the argument of learned counsel for the appellant which is not controverted that once sufficient mortgaged property was available with the respondent-bank to recover decretal amount in lump sum and respondents were also resourceful persons, there was no justification to pass order for making of payment of the decretal amount in installments. We are of the view that installments could not be made by the learned Banking Court without giving sufficient reasons, especially where the decree was a consenting decree and the claimed suit amount was already reduced by the Bank itself from Rs.2,49,59,540.45 to Rs.1,41,83,

877. In this regard, reliance is placed on Mst. Shaheda and 2 others v. Imam ud Din (PLD 1978 Karachi 472), Syed Ghulam Abbas and others v. Mst. Khurshid Begum (1980, CLC 1636 Azad J&K), Messrs Muslim Commercial Bank Limited v. Messrs Perwani Export and Import Trading Co. and others (1999 YLR 975 Kar.) and Mrs. Farida Hanif Motiwala v. Qais Mansoor Sheikh (2000 CLC 1328).

9. In view of above, the impugned judgment and decree dated 14-3-2013 passed by learned Banking Court-I, Multan to the extent of repayment of decretal amount in installments is not sustainable and same is set aside. Accordingly the decree dated 14-3-2013 is modified to the extent that respondent will pay the decretal amount in lump sum. This appeal is allowed in the terms stipulated above. No order as to costs

10. Requisitioned record be sent back to the Court concerned forthwith. KMZ/B-1/L Appeal allowed.