2007 PLP 521 (CLD)

This appeal is directed against the judgment and decree dated 22-6-2006 passed by the Banking Court No.1, Faisalabad, whereby the suit filed by the respondent against the appellant was decreed.

2. Brief facts leading to the filing of this appeal are that the respondent-Bank filed a suit for the recovery of Rs.8, 52,103 along with return and the liquidated damages. Pursuant to a notice the appellant entered appearance and filed his application for leave to defend the suit. The Banking Court seized of the matter dismissed the said application and vide the impugned judgment decreed the suit for a sum of Rs.5,12,225 along with cost of funds.

3. The learned counsel for the parties have been heard and the record of the Banking Court has been perused.

4. It is contended by the learned counsel for the appellant that in fact the appellant had obtained a loan from the respondent-Bank in 1992 which had been repaid and the documents pertaining to the said loan have been utilized to initiate the present suit which is allegedly based on a loan advanced in 1995. It is contended that the appellant had denied the execution of the documents sued upon which were even otherwise blank and ineffective in law. Adds that no disbursement whatsoever was effected in favour of the appellant, hence, in the instant case leave should have been granted.

5. The contentions raised on behalf of the appellant have been controverted by the learned counsel for the respondent-Bank. It is further contended that the case of the respondent-Bank is duly supported by the documents executed by the appellant which are on the record and no defence tenable in law has been pleaded which would entitle the appellant to leave to defend the suit.

6. The suit in the instant case was for recovery of amounts due allegedly under five different loans granted by the respondent-Bank to the appellant in the year 1995. It is the case of the respondent that the said loans were, inter alia, secured by a mortgage of agricultural land and variously payable in instalments in accordance with the details mentioned in the plaint. A perusal of the record reveals that the certificate of mortgage pertains to the year 1992 and obviously pertains to a different loan which is not the subject matter of the instant suit. It is not the case of the respondent-Bank in the plaint that the mortgage in the instant case was created in 1992 and was to continue for future loans including the loans in issue. There can also be no escape from the fact that the appellant has denied the execution of the loan agreement and other charge documents. It is the case of the respondent-Bank that the loans in question were payable in instalments as mentioned in the plaint. However, the learned counsel for the respondent has been unable to support the same on the basis of the documents on record with any clarity. It has also been noticed that the learned Banking Court has relied, inter alia, upon an application for loan which is stated to be at Page 19 of the record. We have examined the record requisitioned from the Banking Court. No such application is at Page

19. The learned counsel for the respondent has been unable to point out the said application from the record.

7. In the above circumstances it is clear and obvious that the defence of the appellant has not been considered in its true perspective so as to whether the appellant was entitled to leave to defend the suit whether conditional or otherwise. In this view of the matter the impugned judgment and decree cannot be sustained and hereby set aside. The case is remanded back to the Banking Court where the application for leave to defend filed by the appellant shall be deemed to be pending and shall be adjudicated upon afresh after hearing both the parties and in the light of the above observations. The appeal is accepted and case remanded in the above terms. M.H./H-1/L Case remanded.