2004 PLP 1640 (CLD)

Waqar Mushtaq Ahmed for Appellants. Sh. Asif Feroz for Respondents. Dates of hearing: 18th December, 2002 and 2nd April, 2003. MIAN SAQIB NISAR, J.‑‑‑The respondent‑Bank brought a suit for recovery against the appellants for an amount of Rs.11,25,381; the appellant applied for leave to appear and defend, which application has been dismissed and the suit has been decreed vide judgment and decree dated 30‑11‑2000.

2. Learned counsel for the appellants states, that neither any loan was sanctioned in favour of the appellants, nor any disbursement was made to them; the entire transaction is fake and fraudulent; the then Manager of the bank, played fraud upon the appellants by procuring their signatures on blank documents such as loan agreement, promissory note, undertaking, guarantees, memo. of deposit of title document and also obtained blank signed cheques and had withdrawn the amount himself. No disbursement as mentioned earlier was made to the appellants. It is also stated that the disbursement of the amount shown in the statement of account as Rs.9,30,000 is absolutely incorrect and illegal, because this loan was never sanctioned, as there is no sanction letter on the record.

3. We have heard the learned counsel for the parties and perused the record. As regards the signatures on the documents are concerned, suffice it to say that those have been admitted by the appellants and there is no supporting material on the record, if such documents were got signed in blank and were handed over to the then Manager of the bank, who had fabricated the same: Even otherwise, if the appellants had given blank cheques to the Manager, as admitted by the learned counsel, and the amounts have been withdrawn on the basis of those cheques, the Bank Manager, was acting as an agent for the appellants and if, he has played any fraud upon the appellants, the Bank cannot be held responsible for the action, and cannot be prevented from the recovery of amount, which has been disbursed on the basis of these cheques.

4. As regards the submission that, according to the contents of the plaint, the appellant No. 1 had pledged certain goods with the Bank for the purpose of securing loan and that the bank is bound to return these pledged goods, suffice it to say that, on the basis of the record, and in the light of the defence, set up by the appellants, in their leave application, this plea is inconsistent. On the one hand, it is stated by the appellants' counsel that the entire transaction is fake and no loan was procured, but on the other hand, it is claimed that certain goods have been pledged, which the Bank is bound to return, while seeking recovery of said amount. It is not believable it, without getting any loan, as pleaded by the counsel for the appellants, any goods would be pledged by the appellant.

5. As regards the submission of the appellants' counsel, that exorbitant mark up has been charged by the lank, which is beyond the scope of the loan agreement; learned counsel for the respondent, when confronted, has placed on the record, the statement of accounts. We have considered the same and find that actually an amount of Rs.9,30,000 was disbursed to the appellants and the rate of mark up was 54 paisas per thousand, per day. Thus, on this account, the mark‑up for 120 days comes up to Rs.60,921, whereas for the cushion period of 120 days, as per the Circular of the Bank, the mark‑up is Rs.1,04,

200. Therefore, the total mark‑up along with the principal amount comes to Rs.10,95,131, out of which, it is established that the appellants have paid Rs.30,000, therefore the balance comes to Rs.10,65.131. Thus, the decree in excess of this amount, passed by the learned Banking Court, is not sustainable. Resultantly, the impugned decree is modified, and the suit of the respondent‑Bank is decreed to the tune of Rs.10,65,131 along with costs of funds from the date of institution, till its realization. Disposed of. M.H./G‑266/L Order accordingly.