2013 PLP 600 (CLD)

NAIMATULLAH PHULPOTO, J.

Granted.

2. Granted for the time being subject to all just exceptions. 3, 4 &

5. Through this appeal, appellant has called in question judgment dated 17-10-2011 and Decree dated 2-11-2011 passed by learned Judge Banking Court No.1, Karachi, in Suit No.448 of 2010, whereby suit filed by the respondent/Standard Chartered Bank (Pakistan) Limited for the recovery of an amount of Rs.20,265,160-32 under Section 9 of the F.I.O. 2001, was decreed in the sum of Rs.15,875,134 with cost of funds from November 2009 till realization of the decretal amount. The facts in nutshell, as disclosed in plaint, are that respondent/Bank filed suit against the appellant for the recovery of an amount of Rs.20,265,160-32, alleging therein that on 13-9-2006, at the request of appellant/defendant, the Respondent/Bank sanctioned a finance of Rs.15,000,000 (Fifteen Million only) to the appellant, who executed required securities to secure the finance granted by the respondent/Bank. The appellant used financial facility sanctioned by the respondent/Bank, but ignored to pay back the finance in prescribed manner and thus committed default in his obligation resulting in an outstanding amount of Rs.20,265,160.32 due and payable by appellant to the respondent/Bank. Cause of action arose to the respondent/Bank and the respondent/Bank filed suit for recovery and prayed as follows:-- (a) Payment of sum of Rs.20,265,160.32 (Rupees Twenty million two hundred sixty thousand one hundred sixty and paisa thirty two only) through the sale the following mortgaged with the plaintiff. Bungalow No.30-B, measuring 1283 Sq. Yds. Survey No.26 situated at Khayaban-e-Shamsheer, Phase-V, DHA, Karachi. (b) Cost of funds in terms of section 3 of the Financial Institutions (Recovery of Finances) Ordinance 2001 on the decretal amount. (c) Cost of the suit. (d) Such other or further relief(s) that this Hon'ble Court may consider just and proper in the circumstances. Appellant/defendant filed an application for leave to defend within the statutory period. Application for leave to defend was dismissed by learned Banking Court No.I on 23-10-2010 for the following reasons:-- "This is an application for leave to defend moved on behalf of the defendant on the ground that though the financial facility for the amount of Rs.15,000,000 was availed but the defendant has paid Rs.3,57,68,088.32 in excess of Rs.2,07,68,088.32, learned counsel for the defendant has argued that no proper statement of account has been filed and the markup being charged was never agreed upon between the parties as the agreement Annexure-F to the plaint does not show any rate of markup. The learned counsel has also argued that counter suit has been filed claiming the excess amount paid by the defendant and that plaint has not filed by the proper person duly authorized on behalf of the Plaintiff As there are substantial question of law or facts that would require evidence, hence defendant's be granted leave to defend. The learned counsel for the plaintiff has filed replication to this application for leave to defend and during the course of arguments has pointed out that at request made by the plaintiff for the amount of Rs.15,000,000 and in the acceptance letter markup at the rate of 13.50 per annum was to be charged and defendant could not deny that the loan was extended without any markup to the defendant. The learned counsel has relied upon 2010 CLD 828 in support of his arguments. I have heard the learned counsel for the defendant and learned counsel for the plaintiff as the financial facility for the Rs.15,000,000 has not been denied and acceptance letter was signed by the defendant, the only dispute appear only apparently over excess markup charged by the plaintiff Under the circumstances I find no substantial question of law or facts raised by the defendants, hence I dismiss the application for leave to defend. The parties to file their respective breakup along with supporting documents." Thereafter, Respondent/Bank filed breakup in Court, detailed as under:-- Principle amount outstanding Rs.14,999,916.93 Markup as Nov. 2010 Rs.9,385,432.38 Payment made Rs.5,368,616.40 Total outstanding Rs.19,016,732.91 Appellant failed to file any evidence in rebuttal. After hearing the learned counsel for the parties, the suit was decreed as stated above. Mr. Abdul Jabbar Qureshi Advocate for the appellant argued that Respondent/Bank has failed to establish the case and learned Judge Banking Court did not provide fair opportunity to the appellant to lead evidence in rebuttal. When the learned Advocate for the appellant failed in his attempt to substantiate his contentions, he raised objection to the executing proceedings. Under the law, such objection could only be raised before Executing Court. At this stage appellant cannot turn around. From perusal of the impugned judgment it transpires that Respondent/Bank has produced documentary evidence to prove appellant's failure to repay the loan amount. Appellant did not produce evidence in rebuttal to disprove documentary evidence of Bank. We have come to the conclusion that un-rebutted documentary evidence of the Bank successfully established appellant's default in the payment of loan amount. Learned Judge of the Banking Court has properly appreciated the evidence in accordance with settled principles of law, not a single anomaly either legal or factual has been pointed by learned Advocate for the appellant. No substantial objection and/or prima facie defence was raised by the appellant before the Banking Court. Thus in view of the unrebutted documents filed by the Bank, fully substantiating their claim, finding recorded by Banking Court requires no interference by this Court. In consequence, we do not find any merit in this appeal and the same is hereby dismissed along with pending applications. MH/W-15/K Appeal dismissed.