2004 PLP 1396 (CLD)

Mr. Anwar Muhammad, learned counsel for the plaintiff heavily relied upon the financial statement for the year ended on 30‑9‑1996 of the defendant (Exh.5/24). In the said statement following amounts have been shown as outstanding:‑‑ 1996 1995 6 Redeemable Capital Rupees Rupees 6.1 Principal 6.2 Long term TFCs 1,345,550 1,345,550 6.3 Short term TFCs 26,848,220 26,848,220 28,193,770 28,193,770 6.4 Accrued mark‑up 16,986,071 ‑‑ 6.5 Frozen mark‑up 4,500,000 ‑‑‑ 49,679,841 28,193,770 Less: Current portion 4,181,856 748,153 shown under current liabilities 45,497,985 27,445,617 The learned Advocate argued that defendants had admitted the amount in their audit report.

12. The learned Advocate argued that as defendants had admitted the amount in their audit report, the plaintiff‑Bank is entitled for the decree of the said amount.

13. It is by now settled that Bank can claim only purchase price from its customer alongwith other. Charges in terms of agreements between the parties, which customers agree to pay to banks.

14. The plaintiff's witness in his cross‑examination produced letters‑ dated 27‑2‑1990 (Exh. 5/28) ‑ and 31‑7‑1989 (Exh.5/29), by which plaintiff has revised purchase price and payment schedule in respect of long term finance facility of Rs.2,100 million. From the perusal of Exh.5/28 it appears that first instalment of finance was disbursed by the plaintiff‑Bank on 19‑2‑1990 and second instalment on 21‑2‑1990, as against on 1‑6‑1986, the original expected date of disbursement under Schedule "B" of Exh.5/

1. Likewise first instalment became due and payable under Exh.5/ 1 was 31‑3‑1990, whereas under revised schedule first instalment was payable on 30‑9‑1990. It is interesting to note that under original agreement (Exh.5/ 1) first instalment was payable after one year and nine months of the disbursement of finance, whereas under revised schedule first instalment became due and payable after seven months of the disbursement of finance.

15. In terms of rescheduled /revised repurchase price, the defendants were liable to pay purchase price in sixteen instalments of Rs.231,876.40, totalling to Rs.3,710,022.40 at the rate of 15 paisa from 31‑3‑1990 till 31‑3‑1998. The revised schedule 31‑3‑1990 till 31‑3‑1998. By letter dated 31‑7‑1998 (Exh.5/29), the plaintiff‑Bank revised repayment schedule in respect of short‑term finance. In terms of said letter, plaintiff agreed to disburse finance Rs.23,000,000 in four instalments commencing from 11‑1‑1989 to 13‑5‑1989 as against the original agreement (Exh.5/ 12), whereby plaintiff undertook to disburse finance on 15‑5‑1988. In terms of Exh.5/29, the defendants were liable to pay purchase price by 30‑6‑1992 in six quarterly instalments. In the last, instalment, defendant had to pay purchase price also. (The price of Rs.34,544,657.53 was calculated at the rate of 15% and Rs.39,932,164.38 was calculated at the rate of 22%. The defendants were entitled for the rebate of 7% in mark‑up in case instalment was deposited on due date).

16. The repurchase prices of the long term and short term finance agreed by the plaintiff in terms of ‑revised schedule were as under:‑‑ Long term Exh.5/28 (i) @ 15% Rs.3,710,022.40 (ii) @ 22% Rs.4,603,932.80 Short term Exh.5/29 (i) @ 15% Rs.34,544,657.53 (ii) @ 22% Rs.39,932,164.34 The total amount payable as per revised schedule at the rate of 15 paisa was Rs.38,254,679.93 and 22 paisa was Rs.44,536,097.14. The plaintiff has disbursed amount under Exh.5/28 and Exh.5/29 and also granted rebate in terms of revised price.

17. Apart from repurchase price the plaintiff claimed following amounts.

18. Rs.28,042 as monitoring fee, Rs.35,053 trusteeship commission, totalling to Rs.63,034.

19. The defendant had paid a sum of Rs.16,939,037.47 up to the date of filing of suit and after filing of the suit defendant had paid under short term finance a totai sum of Rs.45,403,

782. If the amount paid by the defendant is adjusted towards the purchase price calculated at the rate of 15 paisa, viz. Rs.3,710,022.40 + Rs.34,544,657.53 = Rs.38,254,679.93, the defendant had paid an excess amount of Rs.7,149,102.07 and if payment is adjusted from the repurchase price calculated at the rate of 22 paisa, viz. Rs.4,603,932.80 + 39,932,164.34 = 44,536,097.14. The defendants had paid a sum of Rs.867,686 more than the purchase price. After adjusting Rs.63,094, being balance debited amount towards monitoring fee and trusteeship commission, the defendant had paid an excess amount of Rs.7,086,009, if calculated at the rate of 15 paisa and Rs.804,592, if calculated at the rate of 22 paisa per rupee per thousand per day.

20. Now I will take into consideration whether plaintiff has sanctioned and granted finance of Rs.3,850,000 or not. By letter dated 9‑12‑1990 (Exh.6/2), the chartered accountant of the defendants requested for sanction of additional finance of Rs.30,304 million to utilize the same towards the repayments of plaintiff's dues. The plaintiff vide his letter dated 20‑12‑1990 (Exh.5/23) sanctioned the finance so requested. The amount of Rs.3,850,000 was directly credited in the account of the defendants on 30‑6‑1991 and further plaintiff gave rebate of Rs.1,784,054.30 on it, being payment of instalment within due date.

21. The defendant No.1 by his letter dated 21‑12‑1991 (Exh.6/3) again admitted and acknowledged , that additional finance of Rs.3,848,219.18 has been used for the adjustment of due instalments.

22. The defendant's witness in his examination‑in‑chief admitted that amount of additional finance was adjusted towards two instalments of mark‑up on short term TFC facility. In cross‑examination defendant's witness further admitted that additional finance of Rs.3,850 million was sanctioned through Exh. 5/23, and that defendants did not request for said additional finance.

23. In view, of the above, the defendants are liable to pay apart from purchase price agreed under short term and long term agreements of finance a further sum of Rs.3,850,000.

24. As no agreement of finance has been executed between the parties in respect of additional finance, the plaintiff is not entitled to claim mark‑up of Rs.2,543,321 debited in the account of the plaintiff.

25. The defendants are, therefore, liable to pay following amounts:‑‑ Revised purchase price Rs.4,604,932.80 Exh.5/28 @ 22 paisa Revised purchase price Rs.39,932,164.38 Exh.5 / 29 @ 22 paisa Monitoring fee and trusteeship Rs.63,094.00 commission . Additional finance Exh.6/3 and Rs.3,850,000.00 5/23 Less paid: Paid by defendant Exh.7/4 Rs.45,403,782.00 Adjusted from Additional Finance as admitted in cross examination and not reflected in Exh.7/4 Apart from above payment, defendant also claimed adjustment, of rebate which was not granted on the instalments paid within due date and admitted by the plaintiff's witness in his cross‑examination, but I am not dealing with the same as issue, how much excess amount has been paid by the defendant, is not before me.

26. In the case of Ehsan Ali Alibhoy and 2 others v. Industrial Development Bank of Pakistan and 5 others 2003 CLD 440, the Honourable Supreme Court has held as under:‑‑ " ..As regards the damages, learned trial Court refused the same on the ground that nothing was brought on record to show that the plaintiff had 'sustained damages on the ground of default.

11. We asked learned counsel for the plaintiff as to what evidence was brought on record to substantiate the claim of damages, he frankly conceded that no such evidence was available. Liquidated damages, as a rule, require the positive evidence to show the actual loss was suffered by the party claiming the damages. Even fixed amount stipulated for liquidated damages cannot be recovered if the quantum of actual loss is not proved. Under the circumstances, the plaintiff is neither entitled to any interest nor to any amount as liquidated damages."

27. By now it is well‑settled that liquidated damages can be recovered only if party claiming the same, can prove the same.

28. The plaintiff failed to discharge the burden in this regard and in fact has not stated‑ a single word in his evidence about the liquidated damages. I, therefore, held that plaintiff is not entitled for the liquidated damages.

29. For the foregoing reasons since the defendants had paid more than the amount due to plaintiff before the enactment of Financial Institutions (Recovery of Loans) Ordinance, 2001, the plaintiff is not entitled to any decree as the plaintiff's suit has become infructuous and is accordingly disposed of with no order as to cost. M.H./I‑14/K Order accordingly.