2021 PLP 1019 (CLD)

ABID AZIZ SHEIKH, J.

This appeal, under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance), is directed against the interim decree dated 26.09.2014, passed by the learned Single Bench of this Court, in Banking jurisdiction.

2. Relevant facts are that the respondent /plaintiff-Bank filed suit for recovery of Rs. 77,546,526/- against the appellants/defendants. In said suit, vide impugned judgment dated 26.09.2014, though unconditional leave was granted in respect of Letter of Credit facility and amount of markup in the suit, however, interim decree was passed for sum of Rs. 25,000,000/-, regarding principal amount under the Cash Finance facility. The appellants/defendants being aggrieved have filed this appeal.

3. Learned counsel for the appellants submits that as per sanction offer letter dated 05.11.2007, the Cash Finance facility was not a renewal of any existing finance facility, rather same being a fresh facility, the respondent/plaintiff-Bank was bound to show its disbursement after 05.11.2007. Submits that neither any such disbursement was shown in the statement of account nor any Cash Finance facility statement of account prior to 05.11.2007 was appended with the plaint, hence impugned interim decree could not be passed.

4. Learned counsel for the respondent-Bank submits that Cash Finance Facility was originally sanctioned in year 2003, which was extended from time to time. Submits that said Cash Finance facility was merely renewed through sanction advise letter dated 05.11.2007, hence there was no question of any fresh disbursement. He, however, candidly conceded that no statement of account of Cash Finance Facility before 05.11.2007 was filed along with the suit, but same was subsequently placed on record through separate application.

5. We have heard the learned counsel for the parties and perused the record. The claim of the respondent/plaintiff-Bank, in the suit, is that in year 2003, Cash Finance Facility of Rs.3.0 Million was sanctioned, which was extended and renewed during the years 2004, 2005, 2006 and finally in year 2007, same facility was enhanced and renewed vide Sanction Advise Letter dated 05.11.2007. However, admittedly, with plaint, no statement of account of Cash Finance facility relating to years 2004, 2005, 2006 and 2007 was appended to show that Sanction Advise Letter dated 05.11.2007 was in respect of renewal of existing Cash Finance Facility and not sanctioning any fresh Finance facility. In terms of sections 9 and 10 of the Ordinance, the respondent/plaintiff-bank was required to put across its best case before the Court to prove that no substantial questions of law or fact are in issue between the parties in respect of which evidence need to be recorded. Once, the respondent/ plaintiff-Bank has not placed on record the complete statement of account of Cash Finance facility and its disbursement is also not evident from the record, the same give rise to substantial question of law and fact for the purpose of grant of leave to defend the suit, especially when appellants/defendants denied the availing of said finance facility. In this regard reliance is placed upon the cases of Bank of Punjab v. International Ceramics Ltd. and others (2013 CLD 1472) and Decent Builders and Developers and others v. Standard Chartered Bank (Pakistan) Limited (2021 CLD 130).

6. We have also noted that sanction advise letter dated 05.11.2007 does not show that Cash Finance Facility of Rs.25 Million is renewal of the existing facility. Therefore, the respondent-Bank was either required to show its disbursement after 05.11.2007 or to place on record along with suit the complete statement of account, showing availing of Cash Finance Facility by the appellants. In absence of any of the above, the said finance facility could not be treated as undisputed amount for the purpose of interim decree under section 11 of the Ordinance.

7. No doubt, after the impugned interim decree was passed on 26.09.2014, the respondent-Bank placed on record the statement of account of Cash Finance Facility through application (C.M. No. 647 of 2014), which was allowed by the learned Court on 27.10.2014. However, filing of additional documents and statement of Cash Finance account, subsequently, itself prove that no sufficient data was produced with the plaint to establish the availing and disbursement of the Cash Finance Facility in terms of sections 9 and 10 of the Ordinance.

8. In our opinion, filing of additional documents and Statement of Account through C.M. No. 647/2014 by respondent-Bank itself constitutes a ground for grant of leave to defend the suit. Since, the appellants/defendants had no opportunity to rebut, controvert or comment on these additional documents in the petition for leave to defend, therefore, these additional documents are to be proved in evidence, which entitle the appellants/defendants to grant of leave to defend the suit. In this regard reliance is also placed upon the cases of Nusrat Textile Mills Ltd. and 8 others v. United Bank Ltd. through Attorney (2005 CLD 1421), Soaeri Bank Limited v. Classic Denim Mills (Private.) Limited and others (2011 CLD 408) and Saudi Pak Commercial Bank Ltd. through Attorney v. Nazimuddin and another (2009 CLD 1195).

9. In view of above discussion, the impugned interim decree is set aside. Consequently, the appellants/ defendants are granted unconditional leave in respect of principal amount of Cash Finance facility as well.

10. This appeal is allowed in the above terms. SA/O-1/Lah. Appeal allowed.