2015 PLP 645 (CLD)

IBAD-UR-REHMAN LODHI J.

In the first round of litigation, when the suit of the respondent-Bank was decreed by the learned Judge Banking Court on 13-10-2004, the same was assailed in R.F.A. No.217 of 2004 and a learned Division Bench of this Court vide judgment dated 18-6-2008, allowed the appeal by setting aside the impugned judgment and decree, holding that petition for leave to defend the suit will be deemed pending before the learned Judge Baking Court. It was further directed that the learned trial Court, after receiving a complete statement of accounts on the file, will decide the suit. The reasons for such conclusion, as noted in the said order, would be beneficial for understanding the present issue. Relevant portion of the findings of this Court on 18-6-2008, for ready reference, are reproduced hereinbelow:-- "

6. It is settled law that a suit in the banking jurisdiction, can be initiated through a plaint, which is to be supported by a statement of account. Here the statements of accounts are incomplete and no suit without the support of a complete statement of account, can be decreed".

2. The finings arrived at by this Court on 18-6-2008 were never further challenged by any side, as such, it can safely be held that both plaintiff and the defendants in the suit, accepted what was held in the said judgment.

3. Not only that the learned trial court was bound to comply with the directions contained in such remanding judgment, but also it was incumbent upon the plaintiff to bring its suit within the conformity of the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001. A clear guiding indication was provided by this Court for all concerned that in post remand proceedings, the complete statement of accounts should have been furnished along with the plaint, which necessarily meant to file an amended plaint with the complete document, i.e., at least complete statement of accounts in order to meet the requirement of a valid suit in the banking jurisdiction and also to provide an opportunity to the defendant to contest as to what has been pleaded against him by filing his written statement and extending any defence in corresponding paragraph to that of the plaint, wherein the claim of the plaintiff-Bank was raised with the help of complete statement of accounts.

4. What happened in the post remand proceedings was somewhat in complete negation of the directions contained in such remand order. Instead of asking the plaintiff-Bank to file an amended plaint, after incorporating the exact claim of the Bank as against the loanee/defendant with the help of a complete statement of accounts, the plaintiff felt it enough to insert some documents in record on file of suit, stated to have been a statement of accounts and when learned trial court, after putting a stamp on the said document in token of its receipt in the record, it was felt sufficient by the plaintiff that he has performed his duty but such document was never legally put to the defendants by inviting a Written statement qua such fresh development in the suit by providing him an opportunity to place his defence, if any, to such statement of accounts. It is further astonishing that the statement of account was received by the learned Judge Banking Court in evidence as Exh.P.14 and Exh.P.15 in the statement of learned counsel for the plaintiff-Bank.

5. The practice usually adopted by the trial courts by permitting the learned counsel representing the parties to bring on record certain documents, which even are not public documents and are not per-se admissible, is not permissible under any law. The counsel representing a party cannot assume the status of a 'witness' and naturally he cannot be cross-examined by the adversaries, as such, a document, which is not a public document and is not per-se admissible, cannot be allowed to be taken in evidence in the statement of a learned counsel representing a party to the litigation.

6. P.W.1-Muhammad Sidique was produced by the plaintiff-Bank, but he is completely an unconcerned person and even said sole witness of the plaintiff deposed to the following effect:-

7. The learned counsel for the appellants has further pointed out that the plaint of the suit was filed by the Bank through two officers, namely, Mrs. Sheema Hamdani, Vice-President/Chief Manager and S. Naeem Bukhari, Assistant Vice President/Operation Manager/Attornies of the Bank and further argued that such persons never appeared before the court in any capacity and never verified the contents of Annexures-A and B to the plaint, i.e. attorney executed in favour of such persons. P.W.1, in this regard, has further deposed to the following effect:--

8. Although the learned counsel for the appellants has disputed the contents of the statement of accounts by maintaining that the mark-up by means of such statement was being charged after 30-4-2000, which was the cut of date after which the Bank was not competent to charge any mark-up, which fact has been admitted by the said P.W.1, but since we do not consider the process adopted in production of Exh.P.14 and Exh.P.15, as legal one and are not going to give any weight to such document; therefore, are not going to dilate upon such argument of the learned counsel for the appellants.

9. Since the directions contained in order dated 18-6-2008 have not been complied with in letter and spirit and the plaintiff-Bank has failed to produce any evidence in a legally permissible manner; therefore, we consider it a case of no evidence. The plaintiff-Bank was provided ample opportunity to substantiate its claim by production of its evidence, but he has failed to avail such opportunity, therefore, we consider it that the plaintiff-Bank is not entitled to any further leniency. Since the Bank has failed to establish its claim with the help of any evidence; therefore, impugned judgment and decree dated 12-2-2014, passed by the learned Judge Banking Court, Rawalpindi, in favour of the plaintiff-Bank is not sustainable. The same is, therefore, set aside by allowing this appeal with no orders as to costs. MH/H-23/L Appeal allowed.