2004 PLP 1561 (CLD)

MIAN SAQIB NISAR, J.‑‑‑The appellant applied to the respondent‑Bank for the grant of facility for the purchase of a vehicle, which was allowed and on 18‑5‑1993 an amount of Rs.8,00,000 was disbursed to the appellant; the appellant has contributed 10% equity in this behalf. According to the agreement between the parties, the appellant had to repay the loan amount along with mark‑up till 2002, through quarterly instalments. Perhaps the appellant did not make the payment as agreed. Resultantly, the respondent‑Bank in the year 1995 impounded the vehicle, which was subsequently sold by the bank for an amount of Rs.1,00,000 in 1999. Thereafter, the bank filed a suit for recovery of Rs.9,15,

155. The appellant moved an application for the grant of leave which application has been contested by the bank and refused by the learned Banking Court followed by the impugned decree. Hence, this appeal.

2. Learned counsel for the appellant contends that the appellant had never defaulted in the payment of the instalments, rather substantial amount of Rs.7,91,000 was deposited by the appellant in the relevant account, however, this amount has not been credited to the accounts of the appellant. It is also stated that the value of the vehicle, when it was impounded, was not less than at least seven/eight lacs of rupees, but the bank with ulterior motive took the possession of the vehicle used it for about four years and thereafter privately sold if for a meagre amount of Rs.1,00,

000. Lastly it is submitted that the respondent‑Bank has received an amount of Rs.2,16,000 as insurance claim qua the said vehicle, but this amount has not been credited to the accounts of the appellant.

3. On the basis of the above it is submitted that there was a serious and bona fide question of law and fact, which could not be resolved without enabling the appellant to produce evidence. Therefore, the learned Banking Court has erroneously dismissed the leave application.

4. We have heard the learned counsel for the parties. From the statement of the accounts, available on the record, it is apparent that certain amounts, as has been alleged by the appellant, had not been credited. Moreover, the vehicle was taken over by the bank in the year 1995, and it was not promptly sold, rather after the lapse of four years and that too for a negligible price. Thus in such circumstances whether the bank was entitled to recover the suit amount, is a serious question which could not be resolved without recording of the evidence. Resultantly, by allowing this appeal, the judgment and decree of the learned trial Court is set aside. The leave is granted to the appellant. It is directed that the appellant shall file his written statement within 20 days from today. The Court shall decide the matter as expeditiously as possible. If the written statement is not filed within period mentioned above, the defence of the appellant shall be deemed to have been struck off. Accordingly, the appeal is allowed. M.A.W./M‑1891/L Appeal allowed.