2005 PLP 865 (CLD)

Date of hearing: 11th January, 2005. MUHAMMAD SAIR ALI, J.‑‑‑The suit filed by Crescent Investment Bank Limited (the respondent) against the appellants was decreed through judgment and decree dated 10‑10‑2001 for recovery of Rs.3,711,991 jointly and severally from the appellants along with mark‑up, costs and other expenses. Through the present appeal, the appellants have challenged the same.

2. The learned counsel for, the parties after fully arguing the case arrived at a consensus and accordingly jointly requested for the modification of the judgment and decree dated 10‑10‑2001 in the following terms:‑‑ (i) That the suit of the respondent‑Bank be dismissed as against respondents Nos.2 to 5 who were admittedly neither the guarantors nor indemnifiers or mortgagors. Wherefore, appellants Nos.2 to 5 do not fall within the definition of a customer to maintain Bank's suit against them. And further that no document of security or guarantee was sued or relied upon or filed by the respondent‑Bank. And that the impugned judgment and decree dated 10‑10‑2001 against appellants Nos.2 to 5 therefore could not have been competently passed by the learned Judge Banking Court No. 5, Lahore; (ii) That the finance was advanced by the respondent -Bank to appellant No.1 i.e. Rainbow Packages Ltd. through document dated 21‑11‑1991 and was renewed uptill 24‑11‑1993 through the accepted letter/document dated 1‑2‑1993. Wherefore, the period of finance admittedly expired on November 24, 1993 and the respondent‑Bank was not competent to charge, debit and receive mark‑up beyond 24‑11‑1993 under the contractual arrangement between the parties and the amount charged/debited and recovered by the respondent -Bank beyond the expiry period of 24‑11‑1993 was illegal and unlawful. And that as such the amount of Rs.4,24,767 recovered/received from appellant No. 1 by the respondent‑Bank as per the statement of Account at page 40 of the suit file was liable to be adjusted from the total liability outstanding against appellant No.

1. And that the amount of Rs.1,233,500 debited in the Statement of Account for the period beyond 24‑11‑1993 on account of profit/mark‑up, not being legally due and payable by appellant No.1, be reduced from the decretal amount; (iii) That the Statement of Account annexed at page 41 of the suit file correctly reflects the repayable amount of principal as Rs.2,478,

491. And that amount of Rs.4,24,767 illegally recovered as profit/mark‑up from appellant No. 1 beyond 24‑11‑1993, when adjusted, reduces the liability of appellant No. 1 i.e. Rainbow Packages Ltd. to Rs.2,053,724; and (iv) That the decree for recovery of Rs.2,053,724 be passed only against appellant No.1 i.e. the company in modification of the decree dated 10‑10‑2001.

3. Having heard the arguments, examined the record and considered the joint request of the learned counsel for the parties, we find the consensus request as reasonable and in accordance with law. The same is therefore accepted. The impugned judgment and decree dated 10‑10‑2001 is thus modified to decree the suit in favour of the respondent‑Bank and against appellant No.1 i.e. Rainbow Packages Ltd. for a sum of Rs.2,053,724 along with mark‑up from the date of the suit till the recovery of the amount by the respondent‑Bank. The costs of the suit are also awarded to the respondent‑Bank. 3‑A. In absence of the relationship of Banker and Customer between appellants Nos.2 to 5 and the respondent‑Bank, the suit against appellants Nos.2 to 5 shall stand dismissed.

4. Appellant No.1 shall pay the decretal amount to the respondent‑Bank within thirty days. This appeal is accepted in above terms with no order as to the costs. S.A.K./R‑110‑/L Order accordingly.