2006 PLP 539 (CLD)

MIAN HAMID FAROOQ, J.

Appellant-Bank through the present first appeal filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has partially called in question judgment and decree dated 10-9-2002, whereby the learned Judge Banking Court partly decreed appellant's suit for recovery and disallowed a portion of its claim.

2. The appellant-Bank filed the suit for recovery of Rs.5,90,184, against the respondents, before the learned Banking Court inter alia, pleading that the financial facility of Rs.4,00,000 was sanctioned in favour of respondent No.1; respondents Nos.2 and 3 stood as guarantors; the respondents committed default in fulfilling their obligations and, thus, the plaintiff is entitled to the decree, against the respondents jointly and severally along with costs and cost of funds. Requisite summons, through all the modes of service, prescribed under the law, were issued to the respondents. However, only respondent No.3 filed the application for leave to defend the suit, while the other respondents remained absent. At the time of hearing of the leave application of respondent No.3, he also absented from the proceedings and proceeded ex parte and his application for leave to defend the suit was dismissed for non-prosecution. The learned Judge Banking Court, after hearing the learned counsel for the appellant, finally came to the conclusion that the contractual period has not elapsed, the appellant-Bank is not entitled to recover mark-up till 9-5-2002 and, thus, proceeded to pass a decree for recovery of Rs.4,69,545, against the respondents jointly and severally, along with costs and cost of funds from the date of default till realization of the decretal amount and declined to allow rest of the claim of the appellant, vide impugned judgment and decree dated 10-9-2002, hence the present appeal.

3. Learned counsel for the appellant contends that the learned Judge Banking Court has illegally determined the date of default as 12-1-2000, while in fact the date of default is 9-5-2002, therefore, the appellant-Bank is entitled for the mark-up till 9-5-2002, thus, the impugned decree requires modification.

4. We have heard the learned counsel for the appellant, examined the summoned record and perused the impugned judgment. The only question involves in this appeal is as to whether the date of default is 12-1-2000, as held by the learned Banking Court, or 9-5-2002, as canvassed by the learned counsel. We have examined the contents of the plaint and find that it does not disclose date of default. The appellant-Bank served the legal notice upon respondent No.1, on 13-10-2000, thus, it leads to the conclusion that the respondent No.1 had already committed default, which necessitated the appellant-Bank to serve the legal notice. Even the contents of said legal notice do not show any date of default and it has causally been stated therein that respondent No.1 failed to pay the agreed instalment as per terms of the finance. Additionally, statement of accounts shows that respondent No. 1 paid the first instalment of Rs.3,976, on 12-1-2000,?and thereafter he did not pay any amount and, thus, committed default. There is no other document on record, which would go to show that the date of default is 9-5-2002 and not 12-1-2000. Learned A counsel, when asked to demonstrate from the available record that the date of default is 9-5-2002, as pleaded by him, he, despite his best efforts, could not point out any material from the record to show that the date of default, in fact, is 9-5-2002 and not 20-1-2000, as held by the Banking Court. It is settled law that a plaintiff has to succeed on the strength of his own case and not on the weaknesses of the other party. Learned counsel could not substantiate his sole contention regarding date of default from the available record.

5. In the above perspective, we have examined the impugned judgment and find that the learned Judge Banking Court, while passing the impugned judgment and decree, did not commit any illegality, warranting interference by this Court, thus, we are not persuaded to modify the decree, hence, the same is maintained.

6. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed. M.B.A./B-7/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.