2021 PLP 25 (CLD)

ROZI KHAN BARRECH, J.

This High Court Appeal, under section 22 of Financial Institution (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), filed against the judgment and decree dated 05.06.2017 ("the impugned Judgment") passed by the learned Judge Banking Court, Balochistan, Quetta, ("the trial court") whereby the learned trial court decreed the suit in favour of the respondent/bank.

2. Brief facts for the disposal of this appeal are that the respondent/bank, field suit against the appellants for recovery of sum of Rs.20,45,042/-. The appellants appeared and filed application under section 10 of the Ordinance for grant of leave to defend the suit. The said petition for leave to appear and defend the suit was dismissed and resultantly the suit was decreed by the learned trial court vide impugned judgment and decree dated 05.06.2017 to the tune of Rs.20,45,042/- in favour of the respondent/bank against the appellants jointly and severally with costs along with costs of funds to be determined under sections 3 and 17 of the Ordinance. Hence this appeal.

3. We have heard the learned counsel for the parties and also perused the entire record with their able assistance.

4. The appellants in their petition for leave to defend partly admitted the availing of the financial facility from the bank but the petition for leave to defend of the appellants are not as per section 10 of the Ordinance. For ready reference, provision of section 10(4) of the Ordinance is reproduced as under:- 10(4) In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:-- (a) the amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payments; (b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit; (c) the amounts of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit; (d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereto: Explanation.

For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any, against the principal amount of the finance."

5. When the appellants failed to comply with required parameters of provision of section 10(4) of the Ordinance, then penal clause of section 10(6) shall come into play and their leave to defend is necessarily liable to be rejected. For ready reference, section 10(6) is reproduced as under:-- "10(6) An application for leave to defend which does not comply with the requirements of subsections (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement."

6. The respondent bank appended the agreement for financing, Demand Promissory Note, Letter of Hypothecation, Letter of Guarantee and Memorandum of Deposit of Title Deeds with the suit and these documents could not be rebutted by the appellants through any evidence, rather they admitted the availing of the finance facility. There is no document produced by the appellants which may show any re-payment of the amount due against the availed facility from the bank. When confronted as to whether the appellants/defendants have fulfilled the mandatory requirements of section 10(4) and (5) of the Ordinance, the learned counsel for the appellants remained unable to satisfy this court. In view of the above backdrop, the learned Judge Banking Court has rightly passed the impugned judgment and decree while invoking the jurisdiction as envisaged in penal clause of subsection (6) of section 10 of the Ordinance ibid and dismissed the petition for leave to defend.

7. However, in the instant appeal, this court passed order dated 10.07.2017 directing the appellants to furnish surety equivalent to the decretal amount as well as affixation of the court fee but the appellants failed to deposit the same and non-depositing of the surety equivalent to the decretal amount and non-affixation of the court fee on the memo of appeal also cost a negative impression on the bona fide of the appellants as they are not ready to repay the decretal amount. The learned counsel for the appellants has not been able to find out any illegality and material irregularity in the impugned judgment and decree passed by the learned Judge Banking Court nor identify any jurisdictional defect. In view of the above, the appeal filed by the appellants is hereby dismissed with no order as to cost. KMZ/266/Bal. Appeal dismissed.