2004 PLP 1649 (CLD)

Nemo for Respondent. Date of hearing: 6th March, 2003. MIAN HAMID FAROOQ, J.‑‑‑Present appeal, filed by the Agricultural Development Bank of Pakistan, under section 9 of Banking Tribunals Ordinance, 1984, proceeds against judgment and decree dated 6‑6‑1995, whereby the then Banking Tribunal although partly decreed appellant's suit for recovery, yet declined to award a sum of Rs.40,988, being liquidated damages etc.

2. Briefly stated the facts leading to the filing of the present appeal are that the appellant‑bank filed a suit for the recovery of Rs.2,45,899, together with costs, expenses and liquidated damages, against the respondent, before the then Banking Tribunal (since defunct). As despite the service of notice, as provided under section 6(2) of the Banking Tribunals Ordinance, 1984, the respondent did not file the reply to the show‑cause notice, therefore, initially an ex parte decree dated 10‑11‑1993 was passed against the respondent, however, the said decree was later on set aside by the learned Banking Tribunal. Consequent to that, the respondent submitted reply to the show‑cause notice and ultimately, after hearing the parties, the then learned Banking Tribunal, partly decreed appellant's suit and declined to award the amount of Rs.40,988, claimed as liquidated damages etc. and the future, mark‑up, vide judgment and decree dated 6‑6‑1995, hence the present appeal.

3. This is a represented case and the name of the learned counsel has duly been published in the cause‑list, but nobody has entered appearance to represent the respondent, thus, he is proceeded ex parte.

4. The learned counsel for the appellant‑Bank has contended that although the appellant‑Bank was entitled for the awarding of liquidated damages and the future mark‑up, yet the same have illegally been declined by the then learned Banking Tribunal, as such, according to the learned counsel, the impugned judgment and decree needs modification.

5. So far as, liquidated damages are concerned, the appellant‑Bank is not entitled to recover the amount of liquidated damages, as per the principle laid down in the judgment reported as Allied Bank of Pakistan Ltd., Faisalabad v. Messrs Aisha Garments etc. 2001 MLD 1955, wherein it has been held that the Bank is not entitled to recover the amount of liquidated damages. In the above perspective, we are of the view that the impugned judgment and decree is in consonance with the law laid down by this Court, thus, not open to exception.

6. So far as the contention raised by the learned counsel regarding future mark‑up, the same is equally without force. It is settled law and is also discernible from the basic concept of Islamic mode of financing that in the facts and circumstances of present case, bank is riot entitled to claim future mark‑up. Furthermore. Banking Tribunals 'Ordinance, 1984, also, does not empower the Banking Tribunal to award the future mark up, hence, the contention of the learned counsel is repelled.

7. In view of the arguments raised by the learned counsel, we have examined the impugned judgment and find that the same does not suffer from any legal infirmity and is not only in accordance with the record of the case but also in consonance with the law on the subject, thus, the same does not require any interference by this Court, hence the same is maintained.

8. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed with no order as to costs. M. H./A‑777/L Appeal dismissed.