2021 PLP 1220 (CLD)

ABID AZIZ SHEIKH, J.

This suit is filed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) seeking recovery of Rs.215,673,752.00/- along with cost of suit and costs of fund against the defendants on account of finance facility availed by defendants but defaulted on its payment.

2. Relevant facts are that defendant No.1 approached plaintiff bank for the grant of Cash Finance Facility (C.F) in year 2014, which was renewed from time to time and lastly renewed on 08.3.2018 against pledge stock. The defendants Nos. 2 to 8 stood guarantors of the facility and furnished their personal guarantees. The plaintiff bank disbursed the said renewed facility to defendants on 21.3.2018 but the defendants failed to pay back the outstanding amount of facility, hence the instant suit was filed.

3. In pursuant to summons issued by this Court, defendants entered appearance and filed joint application for leave to defend the suit (P.L.A. No.51198/2019).

4. While arguing the PLA, learned counsel for the defendants submits that suit has not been filed by any authorized person. Submits that neither Ms. Ayesha Aamer is Branch Manager nor any power of attorney to file suit has been placed on record, therefore, suit is liable to be dismissed on this ground alone. Reliance is placed on Messrs Muzamil Brothers and others v. Saudi-Pak Commercial Bank Limited (2006 CLD 1546). Learned counsel for defendants further submits that amount of Rs.200 million -allegedly disbursed on 21.3.2018 was never availed by the defendants. He submits that as per statement of account, the said amount is shown to be paid to National Bank of Pakistan (NBP), however, neither there was any request by the defendants to pay said amount to NBP nor there was any such amount outstanding against the defendants to NBP, which was settled by the plaintiff bank. He submits that plaintiff bank in response to above objection in PLA has placed on record certain additional documents with reply to PLA, which itself is a ground for grant of leave to defendant. He placed reliance on Bank of Punjab v. International Ceramics Ltd, and others (2013 CLD 1472), Decent Builders and Developers and others v. Standard Chartered Bank (2021 CLD 130) and judgment passed by this Court dated 20.5.2021 in R.F.A. No.1673/2014.

5. Learned counsel for the plaintiff bank on the other hand submits that suit has been filed through Branch Manager, hence maintainable under section 9 of the Ordinance. Further submits that amount of Rs.200 million was duly disbursed and paid to NBP on the request of defendants as evident from the record. Further submits that in order to response to the objections raised in PLA, the plaintiff bank could append documents with the reply to PLA and it does not entitle the defendants for grant of leave to defendants.

6. I have heard the learned counsel for the parties and perused the record with their able assistance. The first objection of the defendants is that this suit has not been filed by authorized person. In this regard, perusal of para 3 of the plaint shows that suit has been filed by the Branch Manager namely Ms. Ayesha Aamir. The correspondence appended with the suit between the plaintiff and defendants shows that almost all correspondence was addressed to or responded by Ms. Ayesha Aamir, VP/Chief Manager. Even the sanctioned letter of CF dated 08.3.2018 was signed by Ms. Ayesha Amir, VP/Chief Manager. These documents prove beyond doubt that Ms. Ayesha Aamir, is the Branch Manager of plaintiff bank. Under section 9(1) of the Ordinance, the financial institution may institute a suit in the Banking Court by presenting plaint which shall be verified on oath by a Branch Manager or such other officer of financial institution as may be duly authorized in this behalf by power of attorney or otherwise. As discussed above, Ms. Ayesha Aamir, being a Branch Manager is authorized under section 9(1) of the Ordinance to institute suit on behalf of plaintiff bank. Reliance is also placed on Messrs Ravi Medical Supplies and others v. Messrs First Women Bank Limited through Branch Manager (2016 CLD 1726).

7. The other ground urged by the learned counsel for the defendants is that CF amount of Rs.200 million was not availed by the defendants. This ground also has no substance. In this regard, the sanctioned letter dated 08.3.2018 shows that Cash Finance Facility of Rs.200 million was renewed. The perusal of statement of account of CF and current account shows that said amount was disbursed on 21.3.2018, which was also credited in the current account of the defendants and on same date i.e. 21.3.2018, the said amount was paid to NBP.

8. The next claim of the defendants is that as no request was made to the plaintiff bank, therefore, CF amount could not be transferred to NBP. However, this plea is not supported by the document appended with the reply to PLA. According to said documents, on 21.3.2018, defendant No.1 itself requested the bank to transfer Rs.200 million from C.F to Current Account. Again on 21.3.2018, request letter was made by defendant No.1 to transfer Rs.200 million to NBP through RTGS. The remittance application dated 21.3.2018, debt and credit vouchers dated 21.3.2018 shows that said amount was duly transferred to NBP. Learned counsel for the defendants referred to Rs.200 million cheque dated 19.3.2018 by defendant No.1 in favour of plaintiff bank. However, the learned counsel for the plaintiff explained that this Court was one of the requirement for transfer of funds to NBP, which explanation could not be rebutted. The above documents prove beyond doubt that not only the amount of Rs.200 million was disbursed to defendants but same was also transferred to NBP through RTGS on the request of defendant No.1 itself.

9. The argument of learned counsel for the defendants that mere filing of documents along with reply to PLA will give right for grant of leave to defend, is also mis conceived. Under the Ordinance, the plaintiff has right to file reply to the application for leave to defend in the shape of replication. The purpose of replication is indeed to provide the plaintiff with an opportunity to rebut the averments contained in the application for leave to defend filed by the defendants and if need be to file documents to support such rebuttal. This however does not immune the plaintiff from filing of primary documents, which creates liability along with the suit as required under section 9 of the Ordinance. The plaintiff can file only those documents with replication which were either required to be filed by the defendant with leave to defend application or ancillary documents to rebut the averments contained in the leave application. Same view was also expressed by this Court in Muhammad Ahmed Khan v. The Bank of Punjab and others (2015 CLD 158), The Bank of Punjab through Branch/Chief Manager v. Messrs Khan Unique Developers and others (2016 CLD 29), Silk Bank Limited v. Al-Khan Constructions Company and others (2017 CLD 496) and judgment dated 21.11.2011 in C.O.S. No. 210 of 2010. The case law relied upon by learned counsel for the defendants is distinguishable as in these cases, leave was granted on the ground that plaintiff bank filed application for placing on record additional documents and not documents to rebut averments, along with reply to PLA.

10. In view of above discussion, no substantial question of law and facts has been raised by the defendants for grant of leave to defend. Accordingly, P.L.A. No.51198/2019 is dismissed. Resultantly, suit of the plaintiff bank is decreed in favour of plaintiff bank and against the defendants jointly and severally for an amount of Rs.215,673,752.00/- together with cost and costs of funds as contemplated by section 3 of the Ordinance. Decree sheet be prepared accordingly. KMZ/B-13/L Order accordingly.