2005 PLP 1186 (CLD)

MIAN HAMID FAROOQ, J.

Appellants, through the filing of instant first appeal, have called in question judgment and decree dated 30-6-2000, whereby the learned Judge Banking Court passed a decree to the tune of Rs.9,024,416 along with future mark-up, against the appellants and Haroon Arifeen.

2. Precisely stated facts of the case are that the respondent-Corporation, on 13-10-1999, filed the suit for recovery of Rs.9,042,416 against the appellants and one Haroon Arifeen (the defendants), before the learned Judge Banking Court, inter alia, pleading that two financial facilities were granted and re-scheduled in favour of appellant No.1; the re-scheduled amounts were for the purchase of machinery, the defendants availed the said financial facilities and failure by the defendants to clear the outstanding liabilities necessitated the filing of the suit against them. Appellants Nos.1 and 2 filed the application under sections 9 and 10 of Act XV of 1997 (at page 55 of the Banking Court's record) seeking unconditional leave to defend the suit, however, record of the case does not indicate that any such-like application was filed by other two defendants. The learned Judge Banking Court, after hearing the parties proceeded to decree respondent's suit, vide impugned judgment and decree dated 30-6-2000, in the following terms:-- "I decree the suit of the plaintiff to the tune of Rs.9,042,416 along with future mark-up till the realization of the decretal amount, coupled with the return of leased assets in favour of the plaintiff and against the defendants jointly and severally with costs." The said decree has prompted the appellants to file the present appeal.

3. Learned counsel for the appellants, while referring to the statement of accounts (at page 55 of the Banking Court's record) has submitted that the same is sketchy, does not give the details qua the account of appellant No.1 and is violative of the principles laid down by this Court in various judgments. He has relied upon Messrs C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others v. Investment Corporation of Pakistan 2004 CLD

587. Conversely, the learned counsel for the respondent-Bank has submitted that the appellants did not take the plea qua the statement of accounts in their application for leave to defend the suit, therefore, the said plea cannot be urged before the Appellate Court. He has further submitted that the appellants have admitted the claim of the respondent to the extent of principal amount of Rs.5,223,419 (Rs.2,473,419 + 2,750,000), therefore, interim decree to that extent may be passed.

4. In view of the arguments of the learned counsel, we have examined the available record, perused the impugned judgment and find that appellants Nos.1 and 2 filed leave application, wherein they on more than one occasion have challenged the statement of accounts averring therein that the statement of accounts does not show any disbursement of loan, has not been executed and verified in accordance with the Bankers' Books Evidence Act and does not fulfil the requirements of section 9 of Act XV of 1997. It has further been submitted in the leave application that the statements of accounts include various incorrect and bogus entries. We have re-examined the leave application in order to ascertain as to whether the appellants have admitted the claim of the respondent-Bank, as canvassed by the learned counsel, but are unable to find any such admission on the part of the appellants. In view whereof, both the contentions of the learned counsel are without substance and hereby repelled. Confronted with this, the learned counsel for the respondent had to fall back upon letter dated 15-1-2005, purportedly written by the appellants, wherein they have stated that the principal amount is Rs.52,23,

419. It appears that the said amount was written by the . appellants for the settlement of their outstanding liabilities under some incentive scheme and that too long after the passing of the decree. Be that as it may, we have refrained from giving any findings on the merits of the case, as we are inclined to remand the case to the learned Banking Court for decision, afresh, lest the same may prejudice the cause of either of the parties before the Banking Court.

5. Now coming to the statement of accounts. After examining the same, when learned counsel for the respondent, was asked as to whether besides the said statement of accounts, (at page 55) there is any other statement of accounts, filed by the respondent-Bank, in support of its claim, he frankly concedes that this is the only statement of accounts on the basis of which the suit was decreed. We have thoroughly examined the said statement of accounts and find that the learned counsel for the appellants has rightly contended that the same is sketchy, brief, devoid of details and does not even indicate disbursement of the amounts. Additionally, the said statement of accounts is contrary and violative of the principles of law laid down by this Court qua the statement of accounts in the cases reported as Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others 2003 CLD 931 and Messrs C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others v. Investment Corporation of Pakistan 2004 CLD 587, wherein it has, inter alia, been held that the filing of statement of accounts along with plaint is mandatory for the plaintiff to support its plaint by statement of accounts duly certified under the Bankers' Books Evidence Act, 1891 and that the entries in the statement of accounts could not be taken to be sufficient to prove bank's claim, if objected to by the customers. We have re-examined the impugned judgment in order to find out as to whether the learned Banking Court, before passing the decree, has adverted to the said aspect of the case, but find that no findings have been rendered by the learned Banking Court on the statement of accounts.

6. We are unable to locate from the record any application, seeking leave to defend the suit, filed by Mansoor Zaigham, as the only available application on record is by defendants Nos. 1 and 2, namely, Messrs ICEPAC Limited and Mansoor Arifeen. As no leave application was filed by appellant No.3, therefore, his appeal is dismissed and the impugned decree to his extent is maintained.

7. As regards Haroon Arifeen, no appeal has been filed by him, therefore, the impugned decree against him is also confirmed. In the above perspective, we have examined the impugned judgment and find that the same is exceptionable and cannot be maintained qua appellants Nos. 1 and 2, thus, we are inclined to set it aside to their extent.

8. Upshot of the above discussion is that the present appeal is decided in the following terms: (i) The appeal is partially allowed and the impugned judgment and decree dated 30-6-2000, qua the appellants Nos. 1 and 2, is set aside. (ii) The impugned decree to the extent of other defendants is maintained and confirmed. (iii) Resultantly appellants Nos. 1 and 2's application seeking leave to defend the suit and the respondent's suit, only against them, shall be deemed to be pending before the learned Banking Court. (iv) Respondent-Bank, shall file complete and detailed statement of accounts regarding the account of appellant No. 1 before the learned Banking Court. (v) The Banking Court shall decide the said leave application and the suit after hearing the parties and, of course, in accordance with law within a period of three months from today. (vi) Parties are directed to appear, on 12-4-2005, before the Administrative Judge, Banking Court, Lahore, who may himself hear the case or entrust it to any other Judge according to his own administrative arrangement. No order as to costs. S.A.K./I-86/L Appeal partly accepted.