2002 PLP 915 (CLD)

SYED JAMSHED ALI, J.‑‑‑The appellant herein filed a suit for the recovery of Rs.21,56,166 alongwith the return liquidated damages, expenses and costs, Reply to show‑cause notice was submitted by the respondent. On 28‑7‑1994 the respondent made an offer that although the period of re‑payment of the loan was to expire in July, 1995 and the suit had been filed earlier yet he had no objection to the suit being decreed, however, he may be exempted from paying insurance and cushion charges, the costs of the suit, and liquidated damages and he be allowed to pay the outstanding amount in easy quarterly instalments in five years. On 31-7‑1994 Mr. Manzoor Ahmed, Manager, A.D.B.P., appeared and stated that he had no cavil with the suit of the appellant being decreed. However, as far as the liquidated damages and other expenses and payment of decretal amount in instalments are concerned, he had no authority. A supplementary statement of the respondent, counsel was recorded on 24‑8‑1994 in which he agreed to pay mark‑up amounting to Rs.3,46,

806. Although the offer made by the respondent was conditional and except that the representative of the Bank agreed to the suit being decreed, the insurance, other charges and the liquidated damages were not agreed to be waived nor he had agreed to payment of the decretal amount in instalments. However, the learned Banking Tribunal decree the suit in the sum of Rs.16,76,806 including mark‑up (up to the date of institution of the suit) and allowed the respondent to pay the aforesaid amount up to 30‑8‑1997 in 12 quarterly instalments.

2. The learned counsel for the appellant contends that except with the consent of the appellant‑bank, the respondent could not have been permitted to pay the decretal amount in instalments. Reliance was placed on section 11 of the Banking Tribunals Ordinance, 1984. He further submits that in accordance with the terms of the agreement, the appellant was entitled to the mark‑up from the date of the suit till the date of decision, the insurance and cushion charges, liquidated damages and the costs. of the suit which have been declined by the learned Banking Tribunal on the assumption that the matter was being disposed of with the consent of the parties.

3. The learned counsel for the appellant maintains that it is a case in which either the claim of the appellant is decreed in full or at least the case is remitted to the learned Banking Court for re‑determination of the case on merits. Since no evidence was recorded in the case it is not possible for as to finally determine the claim of the appellant. However, the learned counsel for the respondent conceded that he has no objection if the case is remanded to the learned Banking Court No.2 Faisalabad for trial of the suit on merits and its decision in accordance with law. Accordingly this appeal is allowed, the impugned judgment and decree of the learned Banking Tribunal is set aside and the case is remanded to the learned Banking Court No.2, Faisalabad for a fresh decision in accordance with law. S.A.K./A‑448/L Case remanded.