2004 PLP 486 (CLD)

Saif‑ud‑Din Chughtai for the Remaining Respondents. Date of hearing: 18th February, 2003. MAULVI ANWARUL HAQ, J.‑‑‑On 24‑10‑1996, the respondent No. l (Bank) filed a suit against the appellant and remaining respondents for recovery of Rs.19,51,

438. In the plaint it was stated that Mian Taj Din, who died on 13‑1‑1996 was the sole proprietor of the business concern (respondent No.2). On his death he was survived by his legal representatives i.e. the appellant and respondents Nos.3 to

13. The said Taj Din had obtained a cash finance facility which expired on 31‑12‑1994. An application was filed on 11‑1‑1995 for renewal of the said facility. The previous liabilities were duly adjusted and the limits was renewed in the sum of Rs.36,00,

000. On the same date he executed a pronote in the sum of Rs.46,37,340 as also finance agreement. The buy ‑ back price was settled at Rs.46,37,340 against the principal amount of Rs.36,00,

000. The facility was secured by means of documents mentioned in paras.5, 6 and 7 of the plaint. This include the memo. of deposit of title deed and creation of equitable mortgage of property. commonly known as Taj Cinema located at Ghari Shahu, Lahore. The particulars of the mortgage are stated in para.9 of the plaint. It was then stated that as per certified copy of statement of account appended with the plaint the said suit amount was outstanding and due against the defendants in the suit and has not been paid and decree was accordingly sought.

2. This suit was initially filed in a Banking Tribunal at Lahore. A show‑cause notice was issued and, inter alia, the appellant filed a reply on 30‑11‑1996. In the said reply it was stated that appellant is owner of the said Taj Cinema by means of an oral agreement that, according to him, was executed in the year 1975 and was acknowledged on 19‑3‑1990; that the licence for operating Cinema machinery is in the name of appellant and he is in possession as owner. He alleged that the creation of mortgage by Taj Din was thus illegal. A reference was also made to an arbitration award dated 15‑7‑1979. It was further alleged that the said business concern i.e. respondent No.2, is sole proprietorship of Ahsan Taj present respondent No.3. In the same breath it was stated that after the death of Mian Tai Din the assets of the firm were taken over by the said respondent No.3. The constitution of the Banking Tribunal was also challenged.

3. In the course of time the matter came up before the learned Banking Court. Vide order dated 23‑12‑1997 the learned Banking Court refused to grant leave to defend and decreed the suit in the said amount.

4. Learned counsel for the appellants contends that a plausible defence had been made out and since triable issues arise in the case, the parties ought to have been put on trial. Now as against the express contents of the said reply to show‑cause notice, reproduced by us above, learned counsel insists that a gift‑deed was executed by late Taj in favour of his client on 3‑1‑1987 and he acknowledged the same in the power of attorney executed by him in favour of the Bank. He then argues that statement of account does not represent true state of affairs as admittedly the liabilities stood adjusted by late Taj Din on 11‑1‑1995. 'He reiterated the position taken in the learned Banking Court that Ahsan Taj respondent No.3 was the sole proprietor of respondent No.2. He refers to copy of an affidavit dated 17‑10‑1990 sworn by the said respondent No.3. As to where the said affidavit was filed, learned counsel is unable to state: Learned counsel for respondent No.2 on the other hand, /supports the impugned judgment and decree of the learned Banking Court.

5. We have gone through the trial Court records, with the assistance of the learned counsel for the parties. Now as stated by us above, the appellant relied upon an oral gift made somewhere in the year 1975 and acknowledged on 19‑3‑1990, in reply to the show‑cause notice. Learned counsel now states that it was gift‑deed that was executed in favour of his client by late Taj Din. However, learned counsel is neither in a position to show us the said acknowledgment dated 19‑3‑1990 nor the said gift‑deed being referred to him by now i.e. one made on 3‑1‑1987. We have examined the power of attorney that was executed by Taj Din in favour of respondent‑Bank and was registered on 14‑9‑1986. There is no reference to any such document therein and rather it empowers the bank to alienate the said property. Nothing, therefore, turns on the said first contention of the learned counsel.

6. So far as the said second contention is concerned the same is wholly misconceived. It is true that respondent‑Bank stated in its plaint that late Taj Din adjusted all his liabilities on 11‑1‑1995 and thereafter the fresh cash limit was provided. However, nothing turns on the aid admission, as it is case of the Bank that fresh cash limit commenced from the said date. Learned counsel has himself placed a copy of letter written by said Taj Din to the respondent‑Bank on 11‑1‑1995 wherein he has requested for renewal of the limit up to 31‑12‑1995. Now the statement of account starts from the same date i.e. 11‑1‑1995. The withdrawal and deposits are duly stated. We also find no debit entries after 31‑12‑1995 in the said statement of account. On the other hand, we find that as on 31‑12‑1995 debit balance was Rs.20,61,938 whereas on 8‑9‑1996 (which is last entry), debit balance is Rs.19,51,

438. This being so, learned trial Court has not committed any error while accepting the entries in the said statement.

7. So far as the said 3rd contention of the learned counsel is concerned, it is true that copy of the affidavit dated 17‑10‑1990 contains a declaration by Ahsan Taj son of Mian Taj Din that he is sole proprietor of Messrs Asad & Ahsan Brothers. However, we find a copy of plaint at pages 309 to 317 of the trial Court records. This plaint is in a suit filed by the appellant against his co‑heirs including the said Ahsan Taj. This is suit for possession by partition and for rendition of accounts. In para 2 of the plaint it has been stated by the appellant that Mian Taj Din was the owner, inter alia, of Messrs Asad & Ahsan Brothers and he seeks, amongst, reliefs rendition of accounts of the said business. Learned counsel is not in a position to deny the filing of the said suit by his client. As per said copy, the suit was filed on 28‑8‑1996, the contention, therefore, is baseless.

8. Having thus considered the contentions of the learned counsel and upon examination of the trial Court records, we are unable to find any error of law or fact in the impugned judgment of the learned trial Court. This Regular First Appeal is dismissed, leaving the parties to bear their own costs. The trial Court records be immediately remitted back. S.A.K./A‑729/L Appeal dismissed.