2005 PLP 1685 (CLD)

MIAN HAMID FAROOQ, J.

Appellants, through the filing of the present appeal, have called in question judgment and decree dated 2-10-2002, whereby the learned Judge Banking Court passed a decree for recovery of Rs.3,05,108, together with costs and cost of funds, against the appellants.

2. Precisely stated facts of the case are that the respondent-Bank, on 3-12-2001, filed the suit for recovery of Rs.3,66,129 (suit amount Rs.3,05,108 + liquidated damages Rs.61,021), against the appellants, who filed the application seeking leave to defend the suit. The learned Banking Court dismissed the said application and consequently passed a decree for recovery of Rs.3,05,108, together with costs and cost of funds, against the appellants, however, declined to award the amount of liquidated damages, amounting to Rs.61,021, vide impugned judgment dated 2-10-2002, hence the present appeal.

3. Record of the learned Banking Court has been received, today, under the orders of this Court.

4. The names of both the learned counsel, for the respondent, have been published in today's cause list, but none has entered appearance to represent the respondent-Bank, thus, it is proceeded ex parte.

5. Learned counsel for the appellants has contended that the appellants availed the finance facility to the tune of Rs.3,00,000 and according to terms of the finance agreement dated 31-10-2000 they have repaid the total amount and, thus, nothing is due against the appellants. He has added that the bank cannot go beyond the terms of said agreement of finance.

6. We have heard the learned counsel for the appellants and perused the summoned record. We find from the examination of contents of appellant's application for leave to defend the suit that although they have taken many grounds in it, yet they have not raised the plea, now agitated before this Court. It has been admitted by the appellants that they have availed the finance facility to the tune of Rs.3,00,

000. It is evident from the leave application that the appellants did not raise the plea that they have made the payments according to the finance agreement dated 31-10-2000, that nothing is due against the appellants and that the respondent-Bank cannot go beyond the agreement of finance. It may be noted that the respondent-Bank specifically pleaded in para.3 of the plaint that "as per clause (1) of the agreement at the end of the period the Finance Agreement shall automatically renewed and remained in force until such time till it was terminated by the bank by a notice to the customer"'. Be that as it may, admittedly, the appellants did not urge the plea, which has now been raised before this Court for the first time. It is settled law that a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which has not been raised before the lower forums. Reference can be made to Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 and Amir Shah v. Ziarat Gul 1998 SCMR

593. In view whereof, the appellants are precluded from raising the solitary ground before this Court for the first time.

7. In the above perspective, we have examined the impugned judgment and decree and find that the same is not open to exception and the learned Judge Banking Court did not commit any illegality in passing the same.

8. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs. M.H./M-1124/L Appeal dismissed.