2005 PLP 1079 (CLD)

Messrs Invested Securities Limited (the Undertaking) was asked to supply the information/documents under section 21 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 (the Ordinance) vide letter dated September 30, 2002. The Undertaking supplied partial information only vide its letter No.786/ISL/MD-0237/2002 dated October 12, 2002 and was, therefore, asked to furnish the remaining information vide letter dated November 2, 2002 but it failed to do so. It was reminded vide letters dated January 2 and February 4, 2003 respectively to comply but it again failed to supply the requisite information or to respond to the Authority's letters. The Undertaking was, therefore, served with Show-Cause Notice No.43 of 2002-2003 on April 23, 2003 but it failed to respond to the show-cause notice as well. The matter was fixed for hearing on July 26, 2003 through notice issued to the Undertaking on July 7, 2003. However, neither the Undertaking nor any authorized representative appeared on the date of hearing. The authority decided the matter ex parte and imposed a penalty of Rs.20,000 (Rupees twenty thousand only) under section 19(1)(a) of the Ordinance, on the Undertaking. The penalty shall be paid within one month from the date of the order. H.B.T./3/MCA Order accordingly. 2005CLD 1080 [Lahore] Before Muhammad Sayeed Akhtar and Mian Hamid Farooq, JJ RAHAT BADARUDDIN BANDEY

Appellant versus UNION BANK LIMITED through Duly Authorized Attorneys

Respondent R.F.A. No.182 of 2002, heard on 20th November, 2003. Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)

Ss.9 & 10

Suit for recovery of loan amount

Leave to defend suit, application for

Pledge of shares with Bank as security

Plea of defendant was that when value of shares was at optimum, she had requested Bank to sell the same and adjust account, but Bank had failed to do so, thus, nothing was due from her

Banking Court dismissed leave application and decreed suit

Validity

Defendant had given transfer letters authorizing Bank to sell shares in market and adjust account, in case she defaulted in payment of amount

Question requiring determination would be, whether Bank as prudent banker had watched share market and sold shares, when they were at their optimum--Outstanding balance amount shown in statement of accounts might be the amount of market value of remaining shares in possession of Bank, which if had been sold by Bank at relevant time, would have fetched price equal to outstanding balance amount

Banking Court had not adverted to such material aspect of case, but had proceeded to decide suit in a mechanical manner without adverting to contents of leave application

High Court accepted appeal, set aside impugned judgment/decree and allowed leave application unconditionally, resultantly suit would be deemed to be pending before Banking Court for its decision after hearing parties. Talib H. Rizvi for Appellant. Kh. Aamir Farooqi for Respondent. Date of hearing: 20th November, 2003. JUDGMENT MIAN HAMID FAROOQ, J.

Instant appeal, filed by the appellant/defendant, proceeds against judgment and decree dated 25-2-2002, whereby the learned Banking Court passed a decree for the recovery of Rs.4,07,568.34 along with costs, favouring the respondent-Bank.

2. On 26-11-2001, respondent-Bank filed a suit for recovery of Rs.4,07,568.34, against the appellant, before the Banking Court, averring therein, that she obtained a financial facility from the bank; executed certain documents; pledged certain shares with the bank as a security and when she failed to liquidate the outstanding amount, the bank sold her pledged shares and filed a suit to recover the rest of the amount. The appellant filed an application, seeking leave to defend the suit, inter alia, pleading that the financial facility was obtained against the pledge of shares of different companies and when the value of the shares was at its optimum, the appellant requested the bank to sell the shares and to adjust the amount, but the respondent-Bank failed to sell the shares at an appropriate. stage. According to the appellant, nothing is due against her. The application was opposed by the respondent-Bank and ultimately the learned Banking Court, after finding that no case for leave to defend the suit was made out, proceeded to pass a decree for the recovery of Rs.4,07,568.34 against the appellant, vide judgment and decree dated 25-2-2002, hence the present appeal.

3. Learned counsel for the appellant has contended that in case the respondent-Bank had sold the shares when asked by the appellant, then the outstanding liabilities would have been liquidated by the sale of the shares. He has further submitted that after the payment of a sum of Rs.59,33,400 on 27-3-1997, there was nothing outstanding against the appellant. Conversely, the learned counsel for the respondent-Bank, while supporting the impugned judgment, has submitted that the respondent-Bank, before filing the suit, sold the shares of the appellant and the sale proceeds were duly credited in the account of the appellant.

4. There is no denial of the fact that the appellant, at the time of the availing of the financial facility, pledged certain shares as security with the bank. It has even today been admitted by the learned counsel for the respondent-Bank that certain shares are still lying with the Bank and those have not yet been disposed of. The appellant at the time of handing over the shares to the respondent-Bank had also given the transfer letters to the bank. Thereafter, when the appellant committed default in the payment of the outstanding liabilities, the respondent-Bank should have immediately sold the shares in the market and adjusted the account. It is yet to be determined as to whether the respondent-Bank, as a prudent banker, watched the share market and sold the shares when they were at its optimum. As we are inclined to remand the case to the learned Banking Court for the decision of the suit, afresh, therefore, we have refrained ourselves from giving any findings on the issue of sale of the shares, as in our view, one of the contentious points to be decided by the learned Banking Court would be about the sale of shares and the same appears to be the principal defence of the appellant.

5. We have also examined the statement of accounts and find that on 27-3-1997, when the outstanding balance was Rs.61,59,430, the appellant deposited a cash amount of Rs.59,33,400 thus, reducing the balance to Rs.2,26,030.40. Needless to add that even according to the stance of the respondent-Bank, certain shares are still lying with the respondent-Bank. To our mind, the said sum of Rs. 2,26,030.40 may be the amount of the market value of residue shares, at the relevant time, held by the respondent-Bank. At that point of time, if the respondent-Bank would have sold the shares, the sale proceeds of those shares may have fetched the outstanding amount, thus, liquidating the total liability of the appellant.

6. In the above perspective, we have examined the record, perused the impugned judgment and find that the learned Banking Court did not advert to these material aspects of the case and proceeded to decide the suit in a mechanical manner without even adverting to the contents of the appellant's application, seeking leave to defend the suit. In view whereof, we are inclined to accept the appeal and to grant unconditional leave to defend the suit to the appellant.

7. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 25-2-2002 is set aside with no order as to costs. Resultantly, appellant's application for leave to defend is also allowed and she is granted unconditional leave to defend the suit, which shall be deemed to be pending before the learned Banking Court, who shall decide the same after hearing the parties and of course in accordance with law. S.A.K./R-288/L Appeal accepted.