2003 PLP 742 (CLD)

Salman Akram Raja for Appellants. Muhammad Aslam for Respondent No.

1. Azhar Hussain for Respondent No.2. The appellants/judgment-debtors, through the filing of this appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997, have called in question judgment and decree dated 18-11-1999, whereby the learned Single Judge of this Court, in exercise of Banking jurisdiction, after dismissing an application for leave to defend the suit, statedly; filed on behalf of all the defendants, passed a decree for the recovery of Rs.3,52,38,430.61 together with mark-up against the appellants jointly and severally.

2. Briefly stated, the facts leading to the filing of the present appeal are that Allied Bank of Pakistan filed a suit for the recovery of Rs.3,52,38,430.16 (COS. No.54/1999), against the appellants, wherein the respondent No.2 (NDFC) was arrayed as pro forma defendant. Pursuant to the issuance of summons, through all the modes of service, as prescribed under the law, to the defendants, an application (PLA No.94-B/1999) seeking leave to defend the suit, purportedly, on behalf of all the defendants, before the learned Single Judge was filed, which was resisted by the plaintiff-Bank on 'various grounds, inter alia pleading that defendants Nos. 1 and 4 to 7 have neither signed the leave application nor any power of attorney was executed in favour of other applicants, authorizing them to file the said application and that the signature of appellant No.2 on the affidavit as well as the application are forged. The learned Single Judge, after hearing the parties on this application and finding that since the leave application was not signed by appellants Nos. 1 and 4 to 7, therefore, the leave application cannot be considered on their behalf and secondly that the signature of appellant No.2 on the said application as well as the affidavit are forged, proceeded to dismiss the said application for the grant of leave to defend and consequent thereto passed a decree, against the appellants jointly and severally, for the recovery of Rs.3,52,38,430.16 together with mark-up at the bank rate from the date of the institution of the suit till the date of the satisfaction of the decree, with costs, vide judgment and decree dated 18-11-1999, hence the present appeal.

3. The learned counsel for the appellants has contended that all the appellants filed the application for the grant of leave to defend and the appellant No.2 has in fact signed the said application as well as "Wakalat Nama" in the capacity of attorney of appellants Nos.4 to

7. He has further submitted that the appellant No.2 as Chief Executive of appellant No.1, has signed 'the application, affidavit and the "Wakalat Nama", therefore, the learned Judge has erroneously held that no application has been filed by appellants Nos.1 and 4 to

7. Conversely learned counsel for respondent No.1, while supporting the impugned judgment and controverting the aforenoted contentions, has submitted that appellant No.1, which is a private limited company, did not give any authority to appellant No. 2 to file the leave application, therefore, the same cannot be considered on behalf of the company.

4. In the light of the arguments of the learned counsel, we have examined the record of the case and find that an application (PLA No.94-B/1999) was, statedly, filed on behalf of the appellants/defendants, seeking leave to appear and defend the suit. Admittedly, the said application bears the signatures of appellants Nos.2, 3 and

8. In support of the said application only appellant No.2 has filed the affidavit. Similarly, power of attorney (Wakalat Nama) in favour of Raja Muhammad Akram & Company, was signed by the said appellants only. So far as the contention of the learned counsel for the appellants that the defendant/ appellant No.2 namely Javed Saigol, has also signed the application, affidavit and the "Wakalat Nama" in the capacity of the attorney of appellants Nos.4 to 7, the same is devoid of any merits. From the existing record of the suit, the learned counsel could not point out that any such power of attorney was executed by the said appellants and filed alongwith the leave application. As a matter of fact the learned counsel for the appellants has admitted that no power of attorney was filed before the learned trial Court. Upon the perusal of the leave application, we do not find that it has even been stated in the said application that Javed Saigol has filed arid signed the application in the capacity of the attorney of appellants Nos.4 to

7. The learned counsel for the appellants has, however, referred to the photocopies of special powers of attorney, statedly, executed by Mehreen Saigol; Kathleen Megan Saigol, Miss Lina Saigol and Mrs. Tarfa Saigol, (which documents were filed alongwith the present appeal without the permission of the Court), in order to show that the appellants Nos.4 to 7 executed powers of attorney in favour of Javed Saigol. We are not inclined to believe these powers of attorney, which have, for the first time, been placed on record of this appeal and that too without the permission of Court inasmuch as the originals of the same have not been produced even today. If these powers of attorney were actually in existence at the time of the filing of the leave application, it is, however, not understandable why these documents were not filed alongwith the leave application. To our mind, in the present set of circumstances the possibility of forgery and manipulation of these documents cannot be excluded, as the same may have been prepared subsequently only in order to meet the grounds of dismissal of the leave application, as contained in the impugned judgment. As noted above, as the appellants 4 to 7 neither signed the application for the grant of leave nor furnished any affidavit nor signed/executed powers of attorney in favour of the learned counsel, nor any powers of attorney showing that appellant No.2 was authorised to file the leave application were placed on record before the learned trial Court, therefore, we are of the view that appellants 4 to 7 failed to file any leave application and the findings rendered by the Single Judge, are not only in consonance with the record of the case but also in accordance with the law on the subject, thus we are not inclined to upset these findings and the same are maintained.

5. As regard appellant No.2, as noted above, we find that the appellant No.2 has signed the leave application, executed the affidavit and "Wakalat Nama" in favour of his counsel, therefore, it cannot be said that the said appellant has not filed any application for leave to appear and defend the suit. Appellant No.2 has been non-suited on the ground that the application and affidavit filed by him are forged. We find from the record that the learned Judge has rendered the findings without even calling upon the appellant No.2. either to admit or deny his signatures. These findings have been given only after hearing the arguments and without even comparing the disputed signatures with the admitted signatures of appellant No.2 by the Court itself. It is evident from the impugned judgment that the learned Single Judge did not compare the signatures of appellant No.2 with his admitted signature which is one of permissible modes, under the law, for arriving at the conclusion by the Court itself as to whether the signatures are genuine or forged. We are not inclined to maintain the said findings, as such to that extent the impugned judgment stands modified. So far as the application on behalf of appellant No. 1 is concerned, undisputedly, the appellant No.2 is the Chief Executive of appellant No.1, he has been sued in the capacity of the Chief Executive in the suit and he has also signed and executed the affidavit in the capacity of the Chief Executive of appellant No.1. As noted above he has signed all the relevant documents as Chief Executive of appellant No.1, therefore, we are inclined to hold that leave application was filed on, behalf of appellant No.1 also.

7. Now coming to the case of appellants Nos.3 to 8, we find from the impugned judgment that the learned Single Judge did not give any findings against appellants Nos.3 and 8 before the dismissal of their application. Even otherwise, both these persons have signed all the relevant documents, as noted above, therefore, it cannot be said that they have not filed any leave application. In the above perspective, we are of the view that the application for the grant of leave to defend (PLA No.94 B/99) was properly and legally filed on behalf of the appellants Nos. 1 to 3 and 8 and the same should have been considered and decided on merits, by the learned Single Judge before passing the impugned judgment, while the appellants Nos.4 to 7, as held above, did not file any leave application and the findings and judgment against the said appellants are hereby maintained, thus we modify the impugned judgment and decree to the said extent.

8. Upshot of the above discussion is that the present appeal is partly allowed and the impugned judgment and decree dated 18-11-1999 is modified in the manner that the same is set aside as against appellants Nos. 1, 2, 3 and 8, while the said decree is maintained against the appellants Nos.4 to 7 with no order D as to costs. The result would be that the leave application (PLA No.94-B/1999) shall be considered to have been filed on behalf of appellants Nos. 1, 2, 3 and 8, the same shall deem to be pending before the learned Single Judge, who is now to decide the said application on merits after hearing the parties and of course in accordance with law. Q.M.H./K-191/L Order accordingly.