2002 PLP 1703 (CLD)

MIAN HAMID FAROOQ, J.‑‑‑The present appeal, instituted by the appellants/ defendants, under section 12 of Banking Companies (Recovery of Loans) Ordinance, 1979, proceeds against judgment and decree dated 1‑12‑1993, whereby the then learned Special Judge Banking, while dismissing the application, filed by the appellants, seeking leave to appear and defend the suit, proceeded to pass a decree for the recovery of Rs.17,85,244, with costs and interest against the appellants.

2. Facts leading to the filing of the present appeal are that the respondent‑Bank, on 14‑4‑1991, filed a suit for recovery of Rs.17,85,244, against the appellants, before this Court, in its original jurisdiction, which was subsequently transferred to the Special Judge Banking, Lahore, on account of increase in the pecuniary jurisdiction of the learned Special Judge Banking. Pursuant to the issuance of summons, the appellants filed an application seeking leave to appear and defend the suit, however, learned Special Judge, after finding that no case for the grant of leave to the appellants is made out, dismissed the said application and consequent thereto passed a decree for the recovery of Rs.17,85,244, together with costs and interest favouring the respondent‑Bank, vide judgment and decree dated 1‑12‑1993, hence the present appeal.

3. The appeal was admitted to regular hearing by this Court on 3‑7‑1994, after the appellants furnished requisite security, as directed by this Court. Subsequently, the appellants, on 6‑7‑1998, filed an application (C.M. No.2‑C of 1998), with the prayer that as the matter has been settled pursuant to the incentive scheme, therefore, the impugned judgment may be set aside. It has been narrated in the said application that after the passing of the impugned decree, the appellants deposited a sum of Rs.5 lacs on 20‑5‑1997; pursuant to the introduction of an incentive scheme by State Bank of Pakistan, through its Circular No. 19, dated 5‑6‑1997, the appellants expressed their willingness to avail the benefits of the said incentive scheme; resultantly, they approached the Bank; the outstanding amount against the appellants was calculated by the Bank arid consequent thereto, an undertaking was given by the appellants, on a prescribed pro forma, that they would make the payment of Rs.7,16,980, in full and final satisfaction of the impugned judgment and decree. Pursuant thereto, down payment of Rs.85,000, was statedly, made by the appellants, which was certified by the respondent‑Bank vide letter dated 3‑11‑1993, and subsequently the remaining amount of Rs.6,31,980, was also deposited on 5‑12‑1997. With the afore-noted narration, it was, thus, prayed in the application under discussion that the impugned decree may be set aside. Although, notice on this application was issued to the respondent‑Bank, yet no order was passed on this application.

4. This is a represented case and the name of the learned counsel for the respondent‑Bank has been published in today's cause list, but none has entered appearance to represent the respondent despite various calls made. We have again taken this case after exhausting today's cause list, thus, we are constrained to proceed ex parte against the respondent.

5. In the above perspective, upon the examination of the record of this case, we do find photocopy of an "undertaking" reportedly rendered to the respondent‑Bank by the appellants, where-under, in view of the Incentive Scheme, vide Circular No.19, dated 5‑6‑1997, the amount of Rs.7, 16,980, has been calculated, which includes: "the principal amount of Rs.6, 51,031, and the 5% of the principal amount, which comes to Rs.65,

950. Through the furnishing of said undertaking, the appellants appeared to have agreed to pay a sum of Rs. 85,000, as down payment, while the rest of the amount of Rs.6,31,980, was to be paid in instalments. We have also found from the record photocopies of pay‑in‑slips, which show that the appellants paid a sum of Rs. 5 lacs on 20‑5‑1997. Rs. 65,000 on 10‑9‑1997 and a further sum of Rs.20,000 on 6‑8‑1997, while an amount of Rs.6,31,980, appears to have been deposited on 5‑12‑1997. When these receipts are placed in juxtaposition to the contents of the application (C.M. No.2‑C of 1998), filed by the appellants, the irresistible conclusion, which can be drawn is that the contents of the application are correct, moreso, when the same have been supported by an affidavit coupled with the receipts, undertaking and other allied documents. It appears from the record that by depositing the aforesaid amounts, the appellants fulfilled the terms of their undertaking.

6. In the above perspective, we are of the view that the appellants have liquidated their liabilities, incurred through the passing of impugned judgment and decree, while availing the incentive scheme, introduced by State Bank of Pakistan vide Circular No. 19, dated 5‑6‑1997, and they have complied with the terms of the undertaking, thus, we find that the impugned judgment and decree stood satisfied and that explains the absence of the representative of the respondent‑Bank as well as their learned counsel

5. Upshot of the above discussion is that the present appeal‑stands allowed having been fructified on account of the satisfaction of the impugned judgment and decree, thus, no executable decree remains in field. No order as to costs. S.A.K./M‑1288/L Appeal allowed.