2018 PLP 543 (CLD)

MIANGUL HASSAN AURANGZEB, J.

Through the instant regular first appeal the appellant, Mohammad Tariq, impugns the judgment and decree dated 27.04.2005 passed by the learned Judge, Banking Court Rawalpindi, whereby the suit for recovery of Rs.86,974.90/- instituted by the respondent (Standard Chartered Grindlays Bank Ltd.) against the appellant was decreed for an amount of Rs.69,257/- with costs of suit and costs of funds from the date of default till realization of the whole of the decreetal amount.

2. Learned counsel for the appellant submitted that the respondent bank's representative approached the appellant for obtaining a credit card facility; that the respondent bank's representative explained to the appellant that 60% mark-up per annum would be charged as per the policy of the respondent bank; that the appellant signed the membership form which did not contain any percentage of the mark-up to be charged by the respondent bank; that there is no agreement between the appellant and the respondent bank under which mark-up was to be charged for the credit card facility; that although the appellant availed the credit card facility, but there was no agreement as regards the payment of mark-up; that the appellant availed the credit card facility from 08.08.1999 to 31.03.2001; that the appellant obtained an amount of Rs.98,411,70/- and paid an amount of Rs.152,055/-; that the respondent bank is liable to return Rs.26,575/- to the appellant; that the respondent bank has fraudulently incorporated some entries in the bank's statement; that the appellant has filed a petition under sections 476 and 195(a) and (c), Cr.P.C. against the respondent bank; that vide judgment and decree dated 24.04.2005, the respondent bank's suit was decreed to the extent of Rs.69,257; that since no agreement existed between the appellant and the respondent bank regarding the payment of mark-up, the impugned judgment and decree is liable to be set aside. Learned counsel for the appellant prayed for the impugned judgment and decree dated 27.04.2005 to be set aside, and for the suit instituted by the respondent bank to be dismissed.

3. On the other hand, learned counsel for the respondent bank submitted that the appellant had requested the respondent bank for a finance facility by way of issuance of a credit card; that after the appellant accepted the terms and conditions for the issuance, credit card No.4921-2400-0060-8638 was issued to the appellant; that under the terms and conditions of the card member agreement, the appellant was required to make minimum monthly payment; that the appellant defaulted in making such payments; that the total amount outstanding and due to be paid by the appellant as on the date of the filing of the suit was Rs.86,974.90/-; and that the judgment and decree passed by the learned trial Court is strictly in accordance with the law. Learned counsel for the respondent bank prayed for the appeal to be dismissed.

4. We have heard the contentions of the learned counsel for the contesting parties, and perused the record with their able assistance.

5. It is an admitted position that the appellant had availed a credit card facility from the respondent bank. After credit card No.4921-2400-0060-8638 was issued to the appellant, he used the same for different transactions. The position taken by the, appellant before the learned trial Court that an amount of Rs.50,000/- had been fraudulently withdrawn through his credit card, and that the appellant had never withdrawn the said amount. The learned trial Court was correct in holding that since the appellant had been receiving his monthly credit card bill, and since the appellant had never objected to the withdrawal of the said amount, his silence estopps him from questioning the withdrawal of the said amount.

6. The learned trial Court did not grant any amount under the head of late payment fee, since it was considered to be a penalty. Additionally, a further amount of Rs.14000/- was deducted from the amount claimed by the respondent bank because admittedly the said amount had been paid by the appellant. Although the respondent bank had filed the suit for the recovery of Rs.86,974.90/-, the learned trial Court decreed the suit only to the extent of Rs.69,257/- with costs. Learned counsel for the appellant made no effort to convince us as to how the entries made in the statement of accounts were fraudulent or even erroneous.

7. In view of the above, we have been given no reason to interfere with the impugned judgment and decree, passed by the learned trial Court. Therefore, this appeal is dismissed with no order as to costs. MWA/29/Isl. Appeal dismissed.