2012 PLP 447 (CLD)

KHALID MEHMOOD KHAN J.

Through this judgment we propose to decide F.A.B No.8 of 2010, filed by Imam Din against the judgment / decree dated 27-3-2010 passed by Judge Banking Court-11, Peshawar Camp at D.I. Khan.

2. Shorts facts of the instant appeal are that the present respondent/bank (plaintiff) on 20-3-2009 against the appellant/defendant, filed a suit for recovery of Rs.29,74,530 with accrued and future markup and cost from 29-2-2009 till the final payment, Rs.5,94,906 as liquidated damages @ 20% on suit, future cost of funds at the rate of specified by the State Bank of Pakistan from the date of decree till recovery and Rs.25,000 as legal and other charges as agreed by the defendant.

3. The appellant/defendant appeared in the trial Court and contested the suit by submitting his application for leave to defend the suit / written statement under section 10 of Financial Institutions (Recovery of Finances) Ordinance 2001. The learned Judge Banking Court-II, Peshawar Camp at D.I. Khan, after obtaining replication from the respondent/bank, heard the arguments of learned counsel of the parties, decreed the suit of the respondent/plaintiff to the extent of Rs.29,74,530 along with cost of Rs.8058, hence the instant F.A.B.

4. Learned counsel for the appellant argued that the learned Banking Court has failed to appreciate that respondent/bank was not entitled to recover mark up till 18-3-2009 i.e. date of filing of recovery suit. He further argued that the respondent/bank was not competent to recover the mark up beyond agreed period i.e. 30-1-2008, which is at the rate of 19 % per annum. He submitted that the mark up rate at different rate for different period is illegal and appellant has not executed any such document with respondent/bank, hence he is not obliged to pay the same. He also contended that the suit was for the recovery of Rs.35,000 which is totally against the record and that the application for leave to defend was wrongly and illegally dismissed by learned Judge Banking Court and decree passed is nullity in the eyes of law. He relied upon 2007 CLD 435 and 2005 CLD 373.

5. On the other hand, learned counsel for the respondent referred to the application of the appellant moved for leave to defend the suit wherein the appellant has taken contradictory pleas specially he referred to Paras 3 to

7. In Paras 3 and 4 he has totally denied regarding the execution of any document in favour of respondent/bank, whereas in Para 5 of the same application he admitted that he is regularly paying the outstanding amount to the respondent/bank. Learned counsel for the respondent also referred to section l0 of Financial Institutions (Recovery of Finances) Ordinance, 2001. As per section 10 (3 and 4) of the said Ordinance the defendant is duty bound to state the exact amount paid by the defendant to the financial instituting and also annexed the necessary documents along with application for leave to defend. He urged that in the present case the appellant did not mention the specific amount which he has received from the respondent/bank or the amount which he has paid to the respondent. He also argued that the appellant has not come to the Court with clean hand and had suppressed real facts before the trial Court.

6. Arguments heard and record on file perused with valuable assistance of the learned counsel of the parties in the light of which our discussion is as under.

7. We have perused the application for leave to defend filed by the appellant, wherein in Paras 3 and 4 he categorically denied regarding the execution of any document in favour of respondent/bank, whereas in Paras 4 and 6, the appellant clearly admitted that he is regularly paying the amount to the respondent/bank. It is pertinent to note that the appellant in his application for leave to defend nowhere stated that how much finance facility he availed and how much amount he had paid. Moreover, did not annex any receipt or document regarding the same finance facility, which is mandatory provision of law provided in section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001. Furthermore, the pleas taken in the application by the appellant is self contradictory. The appellant blowing hot and cold in the same breathe. In one hand he is denying the document in favour of the respondent/bank whereas on the other hand he is admitting, the same that he is paying the outstanding loan amount regularly according to law. The facts and figure mentioned in the memorandum of appeal nowhere find place in the application for leave to defend. In the appeal the appellant had altogether taken different stance with certain amount and figure which is missing in the application for leave to defend. Appellant in Para I of appeal admitted that he has been availing running finance facility upto Rs. 3.00 million from 2003 and are renewed upto 9-2-2007. This divergent plea in the memorandum of appeal also debars the appellant to raise new plea which was not raised before the trial Court.

8. From the very application of leave to defend and that of appeal shows that he has not come to the Court with clean hands and it is only a futile exercise debaring the respondent/bank from the recovery of outstanding loan. There is no issue which requires determination or recording evidence. Appellant himself has admitted that he is paying the outstanding amount according to law to the respondent/bank. When he himself has admitted that he is paying the outstanding amount according to law then the appeal of the appellant is meritless and decree passed by learned Judge Bank Court is in accordance with law and does not want interfere by this Court. The authorities produced by learned counsel for the appellant has no nexus with the present appeal.

9. Keeping in view the above discussion, we are of the view that since the appellant/defendant has failed to prove his case, therefore, the impugned judgment/decree is based on solid footings which needs no interference and consequently the instant appeal is dismissed being without force. H.B.T./347/P Appeal dismissed.