P L D 2012 Supreme Court 268 (PLP)

MUHAMMAD SAIR ALI J.

The respondent i.e. Soneri Bank Ltd. filed a suit for recovery of Rs.559,534,188 with cost of funds under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 in the High Court of Sindh at Karachi against the petitioners i.e. Apollo Textile Mills Ltd. and others respectively as the guarantors or the mortgager. Respondent-Bank claimed recovery of the defaulted finances; diversely and variously advanced to the petitioners from time to time on the Finance Agreements etc. and securities including mortgages, guarantees, pledges, hypothecations, undertakings and other charges etc. etc. The finances advanced during 2002-2008 amongst others included (i) Running Finance Facilities (Pledge/Hypothecation). (ii) FE-25 (Pre-Shipment Facility). (iii) FE-25 (Post-Shipment Facility). (iv) Term Finance Facilities i.e. TF-I, TF-II, TF-III, TF-IV, and TF-V, (v). FIM Facility. (iv) FBP (Foreign Bills Purchase) Facility etc. etc. The details of the Accounts with amounts of finances, repayments, and the outstandings were particularized and incorporated in the plaint which was supported by finance agreements, security and other documents of finance etc. etc. To set out the suit amount, the plaint was structured and the suit was developed by the bank claimably on the true and correct Accounts of each finance, the documents related thereto and the availment of and repayments by the petitioners. To support the suit amount, Statements of Accounts for the finances duly certified in accordance with the Bankers' Books Evidence Act, 1891 were filed and relied upon.

2. On receipt of necessary summons etc., petitioners/defendants jointly filed a petition for Leave to Defend the suit. The essential grounds of defence to seek leave to defend inter alia were that:-- "(a) The amount of finance availed by the defendant from the Banks is as stated in the plaint which particulars the bank is required to disclose under section 9(3) of the FIRO. (b) The amounts and dates and repayments made by the defendants are as contained in the Statements of Accounts filed by the Bank as per the particulars to be disclosed by the bank under section 9(3)(b) of the FIRO in the plaint. (c) No amount is repayable by the defendants to be bank for the reason set out in the above, which in summary form include the following:-- (i) All amounts detailed to the account of the defendants by the bank in relation to the FE-25 transactions by the Bank because of the violation of the SBP regulations and Prudential Regulations. (ii) The repeated conduct of the Bank in debiting excess amounts allegedly by way of markup, which in fact was markup on markup and also all markups debited at rates in excess of KIBOR. Thus the total claim for markup is illegal. (iii) Damages suffered by the defendants because of the above illegal acts of the bank and also the totally unjustified termination of financial facilities which has led to the virtual paralysis of the operations of the defendants and caused massive losses to it. (iv) Misappropriation by the Bank and/or its employees and/or muqaddam of the goods pledged and handed over to the physical control, custody and possession of the Bank. (v) It may be clarified that the above incorrect/illegal/unjustified entries by the Bank as evidenced by the documents filed by it, are in excess of the amount claimed in suit. Hence nothing is due and owed by the Bank".

3. The leave application was dismissed by the learned Judge in chambers of the High Court and Bank's suit was decreed for a sum of Rs.527,920,448 by judgment and decree dated 4-1-2010.

4. Special High Court Appeal No. 40 of 2010 was filed by the petitioners/judgment debtors against the above judgment and decree. The Appeal was heard and dismissed by an Hon'ble Division Bench of the High Court of Sindh at Karachi as per judgment and decree dated 20-6-2011.

5. Leave to appeal has been sought by the petitioners through the present Civil Petition No.1183 of 2011 against above referred judgment dated 20-6-2011 passed by the Hon'ble Division Bench of the High Court dismissing appeal of the petitioners.

6. Admitting the factors incorporated in para 11 hereunder, the learned Advocate Supreme Court for the petitioners argued that the petitioner defendants were entitled to the grant of unconditional leave to defend the suit because the plaint was not supported by a complete Statement of Account as the Statement of Account commenced from January, 2007 while the financial relationship had started in 2002 and thus cannot start from zero. And that plaint and statement therewith did not reflect the true picture of Accounts. And that the Court was obliged as its duty to attend to the issues and Accounts etc. before passing a decree even after denying of leave. Reference was made to the cases of "Messrs Naeem Associates, through Proprietor and 6 others v. Allied Bank of Pakistan Limited through Branch Manager" (2004 CLD 1672), "Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad" (PLD 1995 SC 362), "Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others" (1999 SCMR 2353), and "Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others" (2003 CLD 931) approved by a Division Bench on dismissal of appeal thereagainst in "Bankers Equity Limited and 5 others v. Messrs Bentonite Pakistan Limited through Chief Executive and 7 others" (2010 CLD 651), and relied upon in the cases of "Messrs Taxila Cotton Mills Ltd. and 10 others v. Allied Bank of Pakistan Ltd. and 4 others" (2005 CLD 244), "S.M. Yaqoob v. Pak. Suzuki Motor Co. Ltd. through Managing Director/Chief Executive, Karachi" (2005 CLD 565) and "Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited and 3 others" (2011 CLD 408). Also that excess mark up on mark up on wrong rates was charged and Statements of Accounts were vitiated by incorrect enteries. Further that the Court misdirected itself in passing decree against petitioner No.4 for the inflated amount of Rs.150 million than Rs.50 million guaranteed by her. The respondent/plaintiff had misappropriated and removed the pledged raw cotton bales and yarn as per Nazir's report and that the petitioners had claimed a sum of Rs.3,145,128,891 in their pending suit for compensation/damages against the bank and the petitioners were entitled to the leave of this Court to determine adjustments as set off in the suit. And that the High Court appeal was wrongly held to be un maintainable and beyond limitation Though the petitioners filed the copy of the decree after the appeal at later stage, yet the appeal was properly filed and the provisions of Order XLI, Rule 1, C.P.C. or filing of decree with the appeal were directory and not mandatory. And that filing of decree subsequently was sufficient compliance of the law and the rules. No other ground was raised or pressed.

7. Learned Advocate Supreme Court for the respondent bank supported the impugned judgments and decrees by submitting that in para.47(a) of the Leave to Defend application, petitioners/defendants had expressly admitted the amount of finance availed by them, the dates and the repayments thereof. And that the petitioners/defendants had not pleaded in the leave petition the details of availed facilities, the repayments made and the amounts outstanding or disputed as was essentially required under subsections (3), (4) and (5) of section 10 of the Ordinance, 2001; That neither the mark up nor the debit or credit entries were specifically disputed. Wherefor, no case for the grant of leave to defend was made out. On the claim of damages setup on account of alleged/loss removal etc. of the pledged goods, learned counsel referred to various Stock Reports to contend that the pledged goods were admittedly stored in the factory of the petitioner No.1 and were forcibly removed by the petitioners themselves as per the Stock Reports, and that petitioners/defendants' claim for damages or set off or counterclaim, though not herein raised as per the law, was a disputed matter in issue in the said suit and needed to be proved in that suit wherefor no un-admitted adjustments could be claimed against the admitted finances. Reference was made to the cases of; Messrs Ansari Cotton Ginning and Pressing Factory (Pvt.) Ltd. through Directors and 5 others v. Habib Bank Limited (2006 CLD 1220), Siddique Woollen Mills etc. v. Allied Bank of Pakistan 2003 SCMR 1156=2003 CLD 1033 American Express Bank Ltd. v. Adamjee Industries Limited. (1995 CLC 880), Messrs Razzaq and Company v. Messrs Riazeda (Pvt.) Ltd. and International Finance Corporation v. Sarah Textiles Ltd. and 3 others (2009 CLD 761).

8. The learned Judge in chambers, declined the leave to defend application filed by the petitioners/defendants by its rejection under section 10(6) of the Ordinance and also on merits by observing that:-- "The examination of plaint and documents annexed therewith clearly spell out the liability duly guaranteed by the defendants Nos.2 and 3 and secured by creation of mortgage in respect of their properties as detailed in paras 6 and 12 of the plaint with restricted liability of defendant No.4 up to the extent of Rs.150 million. The plaintiff has given up its right to claim markup and after deleting all entries of markup, the suit is decreed in the sum of Rs.527,920,448 as prayed, however, the liability of defendant No.4 would be restricted up to Rs.150 million as undertaken by her in deposit of title deed with cost of funds as certified by the State Bank of Pakistan from the date of default till realization".

9. Special High Court Appeal filed by the petitioners was dismissed by the Hon'ble Division Bench of Sindh High Court at Karachi through the impugned judgment by mainly holding that:-- "The requirements of section 10 of the Ordinance, 2001 were not met by the appellants while filing leave to defend application and no substantial questions of law and facts were raised by the petitioners. Neither finance facilities availed by the appellants were disputed nor any objections regarding Statements of Accounts were filed by the appellants. The principal amount and repayments were also admitted by the petitioners. The petitioners Suit No. 58 of 2008 for damages against the loss of pledged goods was pending for disposal in the High Court. The High Court Appeal was not maintainable as the appellants had not filed the decree along with the appeal as per Order XLI, Rule 1, C.P.C. And that the decree filed after the prescribed period of limitation for appeal without seeking condonation, did not bring the appeal within the period of limitation.

10. We have heard the learned counsel for the parties and have examined/perused the record as well as the impugned judgments and the decrees.

11. Before us, learned Advocate Supreme Court for the petitioners, on our queries or otherwise, clearly, categorically and expressly admitted that:-- (i) the petitioners do not dispute or deny any of the finances, the dates and the amounts thereof as well the amounts of repayments shown as per the pleadings in the plaint by the plaintiff bank; (ii) the petitioners/defendants do not dispute and in fact concede the availment of all the finances as per the plaint; (iii) In the petition for leave to defend the suit, the petitioners as defendants had not complied with the provisions of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and had not pleaded, particularized and specified the amounts of Bank finances availed by the petitioners, repayments made by them, the amounts if any disputed by them and the sums outstanding against them as the customers for repayment to the plaintiff-bank. (iv) Leave to defend the suit was not in the form of a written statement. (though to us it appears to be in such form and the learned counsel seems to have overlooked the same). (v) The petitioners/defendants had filed suit for the recovery of damages/compensation and other proceedings against the plaintiff/bank on account of misappropriation or loss or non-release of the pledged/hypothecated goods, yet petitioners/defendants had failed:-- (a) to set up a counter claim or set off, as required under law, in the leave to defend which was to be in the form of the written statement; (b) to file the copies of the plaint or the proceedings of the litigation as to the claims made by them in the suit, though they had referred to their claim for a sum of Rs.3,145,128,891 against the plaintiff bank and (c) make any application for consolidation of the present suit and the suit for damages etc which was also in the same High Court. (vi) the petitioners had not particularized or specified the amounts of mark up claimed by them to have been excessively charged by the plaintiff-bank as mark up on mark up or beyond the agreed rate. The learned Advocate Supreme Court for the petitioners however importantly conceded that during the suit proceedings, the plaintiff bank had expressly waived off and abandoned its claim on the mark up; the amounts of which were deleted from the suit amount. And that the Court on such concession had decreed the suit only for the principal amounts of the finances as claimed by the plaintiff bank in the suit. (vii) the petitioners conceded not to have particularized or detailed out or shown unauthorized, unjustified or illegal debit entries or errors made by the plaintiff bank in the Statements of Accounts.

12. In view of the above admissions made before us, or the High Court and in the leave petition by the petitioners, the amounts of finances availed, repayments made, the outstandings thereof ceased to be in dispute. Similarly allegations of the excessive charging of the mark up on mark up at exorbitant rates became irrelevant particularly on abandonment by the Bank of its claim on the mark up; the amounts for which were deleted from the bank's suit amount and the ultimate decree. Further that neither the petitioners nor their learned Advocate Supreme Court, despite repeated demands by us, were able to show or specify any wrong/illegal debit entry of mark up or otherwise in the Statements of Accounts filed by the Bank to support its claim for each finance; the detailed break up for which was also pleaded in the plaint.

13. The provisions of sections 9 and 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 oblige the parties to the suit to identically plead/state the same nature of accounts or the heads of Accounts. Subsection (3) of section 9 obliges the plaintiff financial institution as under:-- "9(3).

The plaint in the case of a suit for recovery instituted by a financial institution, shall specifically state: (a) the amount of finance availed by the defendant from the financial institution; (b) the amounts paid by the defendant to the financial institution and the dates of payment; and (c) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of the suit". Subsections (3), (4) and (5) of section 10 ibid, require of the defendant(s) as under:-- "10(3).

The application for leave to defend shall be in the form of a written statement, and shall contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded. 10(4).

In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:- (a) the amount of finance availed by the defendant from the financial institution, the amounts paid by the defendant to the financial institution and the dates of payment; (b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit; (c) ................................................ (d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereof. Explanation: ...................................... 10(5).

The application for leave to defend shall be accompanied by all the documents which, in the opinion of the defendant, support the substantial questions of law or fact raised by him.

14. The plaintiff institution and the defending 'customer' have identical statutory responsibility respectively under sections 9(3) and 10(4) to plead and state clearly and particularly the finances availed by a defendant, repayments made by him, the dates thereof and the amounts of finance repayable by such defendant who has also been saddled with the additional responsibility to also specify the amounts disputed by him. A defending customer is thus obliged to put in a definite response to the banks' accounting and has under sections 10(3) and (4) to compulsorily plead in answer in the leave petition his accounts as well as the facts and amounts disputed by him as repayable to the plaintiff.

15. The rationale of the schematic discipline of Ordinance of 2001 is evident. A banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsorily in the books of Accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices. As such instead of leaving it to the option of the parties to make general assertions on Accounts, the Ordinance binds both the sides to be absolutely specific on accounts. The parties to a suit have been obligated equally to definitively plead and to specifically state their respective accounts.

16. To scope of the suit thus becomes well defined. The controversies are confined to the claimed and/or the disputed numbers, facts and reasons thereof. Unnecessary controversial details, the evidence thereto and the time of the trial, are curtailed. The trial would remain within the laid out parametrical scope of the claimed and the disputed accounts.

17. Non impleadment under subsections (3) and (4) of section 10 and section 9(3) ibid of accounts in terms of the said provisions, entails legal consequences under subsections (1), (6) and (11) of section 10 of the Ordinance, 2001. These provisions read as under:-- "

10. Leave to defend

(1) In any case in which the summons has been served on the defendant as provided for in subsection (5) of section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and, in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interest of justice. 10(6).

An application for leave to defend which does not comply with the requirements of subsections (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement. 10(11).

Where the application for leave to defend is rejected or where a defendant fails to fulfil the conditions attached to the grant of leave to defend, the Banking Court shall forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant."

18. The Financial Institutions (Recovery of Finances) Ordinance, 2001 i.e. is a special law. It provides a special procedure for the banking suits. The provisions of the Ordinance, 2001 under section 4 thereof override all other laws. The provisions contained in the said Sections require strict compliance. Non-compliance therewith attract as above referred, consequences of rejection of leave petition along with decree etc. etc. Applying all the settled and well known principles to determine the mandatory construction of a provision of law, the said provisions cannot but be held to be mandatory. This Court in the case of 'Niaz Muhammad v. Fazal Raqib' (PLD 1974 SC 134) held that:-- "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statue is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision".

19. In this case, the application for leave to defend the suit filed by the petitioners did not fulfil the requirements of section 10(3), (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001. It was admittedly not in conformity with the said mandatory provisions. No cause or the reason for inability to comply with said requirements was shown. Instead it was expressly admitted by the learned Senior Advocate Supreme Court for the petitioners before the High Court and also before us that the petitioners failed to fulfil the mandates of the said provisions and did not plead the required Accounts. The petitioners/defendants thus attracted the prescribed legal consequences of:-- (i) Rejection of their leave petition under section 10(6); (ii) Non-entitlement under section 10(1) to defend the suit for not obtaining leave to defend the suit in terms provided for in section 10; (iii) The allegations of fact in the plaint were deemed under section 10(1) to have been admitted by them; and (iv) A judgment and decree against them and in favour of the plaintiff bank under section 10(1) and (11) ibid.

20. Dr. Farogh Naseem, learned Advocate Supreme Court for the petitioners placed heavy reliance on the judgment in the case of "Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others" (2003 CLD 931), composed by one of us (Justice Muhammad Sair Ali) while in the Lahore High Court, Lahore. This judgment was maintained by an Hon'ble Division Bench in the case of "Bankers Equity Limited and 5 others v. Messrs Bentoriite Pakistan Limited through Chief Executive and 7 others" (2010 CLD 651) and was also referred to and relied upon by various Hon'ble Benches in the cases quoted by the learned counsel. In this judgment both the above reproduced Sections i.e. sections 9 and 10 came under discussion. This judgment also bears identity of facts and the law to the case in hand. The defendants in the referred case also failed to particularize their objections and had not pleaded Accounts under section 10 of the Ordinance, 2001 like in the present case. Their petition for leave to defend was rejected under subsection (6) of section 10 ibid as under:-- "5.

Learned counsel for the applicants/defendants candidly admitted that no such account or tabulation was made in the PLA. In absence of such an account and for not being in the form of a written statement, the PLA was rejectable under subsection (6) of section 10 of the Ordinance, 2001, for not complying with the mandatory requirements of subsections (3) and (4) of section 10 ibid". Upon rejection of defendants petition for leave to defendant the suit, the court on its own examination of the plaint of the plaintiff financial Institutions and the documents therewith, rejected the plaint as well by holding that:-- "7. ............ subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory for a Banking institution to support its plaint in a suit against the customer by a Statement of Account duly certified under the Bankers' Books Evidence Act, 1891 and also by all other relevant documents relating to grant of finance. Without such a 'Statement of Account' filed along with the plaint, a customer will obviously remain totally unaware of the amount advanced, mark up charged and the basis, break up, premise, mode of calculation of account, nature of default and the actual amount of Bank's claim against the defendant-customer. He will thus be unable to frame his defence within the limited period prescribed by law, to show reasonable, serious and plausible grounds of contest to be able to seek and obtain leave to defend the suit. Absence of filing the requisite Statements of Account along with the plaint, will essentially amount to absence of providing adequate, proper and reasonable opportunity of defence to the defending customer. Being thus unable to file a proper leave petition within thirty days under section 10(2) of the Ordinance of 2001 or within twenty-one days under section 10(12) ibid, such a customer may or may not later be able to amend his leave petition. His defence shall thus be rendered illusory, hence denied. Upon the compliance a Banking Company with the provisions of section 9(2) of the Ordinance of 2001, depends the right of defence of a defendant in the summary suits as visualized under the Ordinance, wherefor, the filing of duly certified Statements of Account by a Banking company along with its plaint, cannot be taken to be a mere formality or a technicality. This provision can only be held to be mandatory. Without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit under this law".

21. The similarity of the provisions legislated in sections 9 and 10 ibid, as discussed above, leads to identical consequences in the absence of the demanded Accounts and the documents. Suit of the plaintiff institution will be rejectable while defendants' leave petition will be exposed to rejection etc. A Plaintiff institution may be rendered unable or deficient in appropriately setting up its answers to the accounts, disputed amounts and facts of the defendant in reply to the leave application as per section 10(8) ibid. And that in the absence of the requisite accounts and the facts etc. in defence filed by a defendant in the leave petition, a plaintiff will remain unaware of the admitted or denied or disputed accounts and facts of the defendants, to adequately, seriously and reasonably pursue the suit and its trial. This will obviously defeat the intent and the object of the provided provisions of The Financial Institutions (Recovery of Finances) Ordinance, 2001)

22. Despite rejection of the leave petition as above, and loss of the right to defend the suit, the learned Advocate Supreme Court for the petitioner/defendants insisted that the Courts should have considered the request of the petitioners for rejection of the plaint as in above referred case of "Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others" (2003 CLD 931), on the purported basis of incomplete Statements of Accounts. The cases referred to by the learned counsel did adjudge that in the absence of the support of Statements of Accounts and finance documents, Bank's plaint was liable to be rejected. The learned counsel does not appear to have examined the reasons upon which the said judgments were founded. Consequent upon the rejection of the leave petition, the defendants were deemed to have admitted the contents of the plaint. The defendants remained bound thereto. The Court of course was not so bound. It was not expected to proceed blindfolded. The court therefor in performance of its duty, itself examine in the said cases (as in this case) the plaint along with documents to decide as to whether the suit complied with the mandatory provisions of section 9 ibid or not and as to the nature of the order, judgment or decree to be passed by the Court.

23. Holding that in this case also, the petitioner defendants invited the above legal consequences because of their default in appropriately seeking leave to defend the suit and they thus lost the right of defence suffering debilitating limitations, we still proceeded to consider the case of the plaintiff bank. We find that in the plaint, respondent seeking recovery of Rs.559,534,188 pleaded in detail all the transactional facts, the amount of each finance availed by the petitioners, the repayments made, the dates thereof, and the outstandings against the petitioners upto the date of the suit. The documents of finance/securities etc. and the Statements of Accounts in respect of each finance facility required under section 9 ibid to support the plaint, were duly filed. On the basis of documents, the plaint also pleaded the details of various rollovers, re-schedulings and the revisions requested and availed by the petitioners during the long customer-banker relationship. None of the pleaded facts or the documents were denied or contested. The petitioners instead expressly admitted in their leave petition, submissions before us and in the High Court, the finances, availments, rollovers/revisions/ reschedulings etc, the dates, the amounts as well as the outstandings. The documents and the debit/credit entries in the Statements of Accounts were also admitted to be undisputed.

24. Despite admitting the claim of the respondent bank, the documents and the Statements of Accounts, the petitioners contended that the Statements of Accounts were incomplete as they started with a brought forward balance than the zero balance. Having so said, the effect of the availed rollovers/reschedulings/rearrangements was not denied or rebutted to prove the invalidity or prejudice thereof. This aspect of the matter was duly responded to by the learned Single Judge in his order by observing that "such objection would have carried weight in case the appellants would have disputed the existing outstanding or the respondent would have been claiming markup. The appellants nowhere have disputed the disbursement of facilities or have brought to the notice any payment not reflected in the Statements of Accounts". The petitioners have not shown the prejudice caused to them purportedly by so called incomplete Statements of Accounts which we find to be complete on considering the effect of rollovers. We also note that separate Statement of Account was filed by the plaintiff Bank in each separate/independent Account which commenced without a debit from its respective date of commencement. The petitioners have failed to distinguish the particulars of one Account from the other, lending non- credibility to their objection as raised. In the absence of denial of availing of the finance facilities, execution of the charge/security documents and admission of the outstanding liability per the Statements of Accounts, we do not find existence of a substantial question of law or fact requiring evidence.

25. During the arguments, the petitioners and their learned counsel built their entire defence on the purported incomplete Statement of Account and the alleged loss, destruction, removal and misappropriation by the Bank of the pledged goods. This plea was not shown to having direct bearing on the banks suit under the special law. Neither the facts nor the documents i.e. Nazir reports were admitted by the parties to become uncontestable and credible record deserving consideration without proof. We were informed that the petitioners' suit for damages and compensation was pending against the Bank in the High Court. The plaint in the said civil suit, despite queries from us, was not shown. The learned counsel for the petitioners instead admitted that the plaint or the suit documents were not placed on the record of this CPLA and the counterclaim or the set off had also not been set up in accordance with the law in the leave to defend application which had to be in the form of a written statement. The learned Advocate Supreme Court also admitted that neither suits were consolidated nor any request thereto was made. We would like to abstain from making any further observations or comments on this ground to avoid the possibility of prejudice to the pending suit, to which any comments herein made shall not apply.

26. The learned Judges of the High Court justly relied upon the case of Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd., (PLD 1966 SC 684), decided by this Court that:-- "Even assuming that some goods were pledged with the bank as security for the advance this does not, in our opinion, absolve the defendant from his liability to clear his dues. The banker only acquires a lien over such pledged goods for the recovery of his dues and has a right, after notice to the debtor, to sell those goods to reimburse himself. But it is only where such a sale is actually held that the debtor can claim an adjustment of the sale proceeds of the goods against the amount claimed by the bank. There is no evidence in the present case that any goods were, in fact, sold by the bank or that the bank still retains any goods as such security". The Hon'ble Supreme Court while dismissing the appeal of the borrower further held as under:-- "We cannot, therefore, help observing that after the defendant had admitted that he had an account with the bank and had also borrowed money from the bank on the basis of the arrangement for which he had admittedly executed the promissory notes and the cash agreements there could be no manner of doubt that he had an overdraft account. This has also been corroborated by Inayat Ali, the then Manager of the Delhi Branch. Again, it is clear that the withdrawals had taken place by cheques, the numbers of which have been mentioned in the Statements of Accounts (Exh.P.5). It would have been quite easy for the defendant to challenge the correctness of these entries by a reference to the cheque counterfoils which normally would have been in his possession. The fact that this was not done clearly shows that the defence was not in a position to challenge the correctness of those entries. The evasive answers given by the defendant as to the details of transactions with the bank also confirm as in the view that the defendant had no real answer to the claim".

27. Adverting to the question of the maintainability of the Special High Court appeal filed by the appellants, we note that the learned Appellate Division Bench in the impugned judgment held petitioners' appeal to be incompetent, non-maintainable and beyond limitation. The reasons thereof were that the appeal was filed only with the certified copy of the impugned judgment. The decree was not filed therewith. The copy of the decree was filed after the prescribed period of limitation for the appeal. The learned Judges also remarked that an application under section 5 of the Limitation Act to seek condonation of the delay was also not filed. The learned Division Bench referring to the provisions of Rule 1 of Order XLI, C.P.C. (Act V of 1908) and the judgment of this Court in the case of "Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and other" (2005 SCMR 931), held "the provision regarding production of certified copy of the decree sheet along with the memo of appeal to be mandatory and the appeal unaccompanied with the certified copy of the decree sheet not to be properly constituted and thus incompetent".

28. It needs not be emphasized that right of appeal is fundamental to the laws in all the civilized systems of the administration of justice yet right of appeal is not inherent in a party. Appeal is creature of a statute and cannot be availed of unless expressly granted by the law. The inquiry in this case on appeal issues led us to the comparative analysis of the appeal provisions in the Civil Procedure Code and the Financial Institutions (Recovery of Finances) Ordinance, 2001.

29. From the original decree, appeal is provided in section 96 of the Civil Procedure Code. The procedure thereof is contained in Order XLI, C.P.C. Section 96 (though not referred to in the impugned judgment) reads as under:-- "

96. Appeal from original decree

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties. The first appeal under C.P.C. thus lies against the original decree and not against the findings or decisions contained in the judgment upon which the decree is founded. The first appeal, without a decree, will not therefor be competent under section 96, C.P.C. read with Rule 1 of Order XLI, C.P.C. which mandates filing of the decree along with the appeal. The learned Division Bench was thus justified to hold that under the provisions of C.P.C., an appeal, without filing a certified copy of the decree sheet, was incompetent.

30. Like in section 96, C.P.C., appeal was'prescribedto be against a decree under subsection (1) of section 21 of the repealed Act XV of 1997 i.e. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. This section is reproduced hereunder for comparison:-- "

21. Appeal... (1) Subject to subsection (2), any person aggrieved by a decree, or an order refusing to set aside a decree, or an order permitting or preventing the sale of property, or a sentence passed by a Banking Court established under section 4 may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court." The provisions of appeal against a decree were thus nearly similar to the provisions of section 96 of the C.P.C.

31. In this case, however, appeal was filed by the petitioners under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001; which was the applicable law. The appeal in the present case was not filed by the petitioners under section 96 of the C.P.C. read with Rule 1 of Order XLI, C.P.C. Subsection (1) of section 22 ibid reads as under:- "

22. Appeal.

(1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court."

32. We may say this with profound respect that the Hon'ble Judges of the Division Bench of the High Court, should also have examined the above provisions as well. The linguistic construction, phraseology, terms, words and the schematic design/layout of the above appeal provision is distinguishably different than in section 96 of the C.P.C. and section 21 of the Act of 1997. Under section 22 ibid an appeal has been provided against "any judgment, decree, sentence, or final order passed by a Banking Court, within 30 days of such judgment, decree, ( sentence or final order". Was intention' of the legislature to provide a scheme of appeal(s) under section 22 ibid, to be different from that in section 96, C.P.C. or the Act of 1997. The questions also *arise inter alia as to whether section 22 provided an appeal against a judgment or a decree or a final order, independent and separate of each other. And that was an appeal, in a case like the one in hand, competent against the judgment only when filed without a decree. And also was late filing of the decree sheet in the appeal against the judgment allowed or was a separate appeal against the decree (but within the period of limitation) needed to be preferred. And what would be the effect on the decree of the setting aside of the judgment under appeal if decree, was not attached or appealed against. And that was section 5 of the Limitation Act applicable to appeals under 2001 Ordinance. These questions needed to be considered in the impugned judgment and also in the referred case of 'Abdul Sultan K. Merchant v. Messrs First General, Leasing Modaraaba and others' (2007 CLD 523).

33. We may mention that the words employed in above referred section 22 ibid are nearer to the words used in section 109 of C.P.C. and Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Rule 4 of Order XII of the Supreme Court Rules, 1980, All these provisions relate to appeals to the Supreme Court and have found interpretation in various judgments. Similarity of statutory composition and scheme impel us to reproduce the above provisions as well: Section 109 CPC provides that:-- "

109. When appeals lie to the Supreme Court.

An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court. Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 reads that: "185. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court:-- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or; on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or (d) if the amount or value of the subject-matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fitly thousand rupees or such other sum as may be specified in that behalf by Act of '[Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree of final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal".

34. In the case of `Imtiaz Ali v. Atta Muhammad and another' (PLD 2008 SC 462) read with the case of 'Nakuleswar Sikdar v. Barun Chandra Chakravorty and another' (1971 SCMR 54), it was held that where appeal was allowed against the judgment or decree or a final order, filing of appeal within limitation was mandatory 'from the delivery of judgment and waiting for the grant of certified copy of the decree F .would not enlarge the limitation and in such a case non-filing of the decree would not be fatal to the appeal.

35. The decree in the defendant's suit was passed by a Judge in chambers of the High Court of Sindh, Karachi in the exercise of Banking jurisdiction, on the grounds of default of the petitioners under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as on merits. Special High Court Appeal was also dismissed principally on above grounds. And we have held the said judgments and decrees to have been validly passed. .And we have not found the present petition for leave to appeal sustainable. We therefore, do not need to go into the question of maintainability or competence of the appeal which is left to be decided in an appropriate case. Also because none of the learned counsel have addressed us on this aspect of the case particularly in view of the propositions herein recorded by us.

36. Above are the reasons for our Short Order dated 12-10-2011 dismissing the petition and declining leave to appeal to the petitioners. M.A.K./A-60/S Petition dismisse