2006 PLP 1384 (CLD)

MIAN SAQIB NIASR, J.

In May, 2000, respondent No.1 brought a suit for the recovery of Rs.6,71,61,754, inter alia against the appellants, suing them as the guarantors for the finance facility granted to the respondent No.2. Along with the suit, the proper and detailed statement of accounts was not filed. The respondent/plaintiff subsequently moved to the Court for the filing of the detailed statement of accounts, which application was allowed by the learned Banking Court vide order, dated 6-6-2001, with an opportunity given to the appellants to file further leave application, which was so moved after the statement of accounts was brought on the record by the respondent. After hearing the parties, the leave application has been declined and the suit has been decreed by the learned Banking Court to the tune of the suit amount.

2. Learned counsel for the appellants has argued that the statement of accounts, which was subsequently filed by the respondent/plaintiffs starts from 1-7-1985 and ends by 1-7-1993 and the amount due from the principal debtor shown in the statement is Rs. 12,42,441; there is no further statement of accounts to show and support the claim propounded in the plaint, as to how the suit amount has been calculated and what is the basis of the claim of the respondent. It is also argued that from the documents placed on the record by the appellants, it is established that certain amounts were paid by the principal debtor to the respondent/plaintiff, but these have not been adjusted/reflected in the account statement. Learned counsel has also pointed out that there are certain unauthorized entries in the statement, such as penal interest and also the capitalized charges, which cannot be charged or claimed under the law; certain other inaccuracies have also been pointed out in the statement of account and, therefore, it is argued that the suit amount was not due to the respondent/plaintiff, resultantly, the leave to appear should have been granted for the determination of the substantial questions of facts, which necessarily required the recording of the evidence.

3. The pleas raised by the appellants' side have been controverted by the learned counsel for the respondent/ plaintiff, who states that subsequently another statement of account was filed before the Banking Court with the permission of the Court and this gives the details and the breakup of the total amount due against the debtor/company, that was claimed in the suit. However, when examined, we do not find any permission of the Court for enabling the respondent to file any other statement except as allowed vide order, dated 6-6-2001. The learned counsel for the respondent has also filed to show if on the filing of the latest account statement any further opportunity was given to the appellants to meet the same. Obviously, because of the non-filing of the complete statement of accounts, even after the order of the Court, permitting to do so, and for the inaccuracies, inadequacies and unauthorized entries in the statement of accounts highlighted above, we are of the view that in order to ascertained as to what is the amount due to the plaintiff from the principal debtor regarding which the appellants were the guarantors, the leave should have been allowed and the evidence should be recorded. These aspects of the case have not been considered by the learned Banking Court, therefore, the judgment and decree passed against the appellants cannot sustain, which is hereby set aside. The appellants are granted the leave to appear and defend the suit, with the consequences to follow. The appeal is accordingly allowed. F.B./M-330/L Appeal allowed.