2005 PLP 292 (CLD)
HABIB BANK LIMITED‑‑‑Appellant Versus Messrs THE ENGLISH ENGINEERING COMPANY and 2 others‑‑‑Respondents
| Citation | 2005 PLP 292 (CLD) |
| Forum / Court | Lahore |
| Bench Members | Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ |
| Parties | HABIB BANK LIMITED‑‑‑Appellant Versus Messrs THE ENGLISH ENGINEERING COMPANY and 2 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2005 PLP 292 (CLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 292 (CLD)?
The case was heard and decided by the Lahore bench comprising: Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 292 (CLD) (HABIB BANK LIMITED‑‑‑Appellant Versus Messrs THE ENGLISH ENGINEERING COMPANY and 2 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Ahsan Rasool Chattha for Appellant
- Mian Asif Mumtaz for Respondents
- Date of hearing: 14th June, 2004
Headnotes / Summary
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑ ‑‑‑‑Ss.9 & 21‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Plaint rejection of‑‑‑No cause of action‑‑‑Absence of written finance agreement between the parties‑‑‑Without deciding the application for leave to defend the suit, Banking Court rejected the plaint for the reason that the plaintiff did not produce written finance agreement with plaint‑‑‑Plea raised by the plaintiff was that the absence of agreement was not a proof of absence of cause of action‑‑ Validity ‑‑‑Averments of plaint which should be deemed correct while considering, if disclosed cause of action or otherwise, and only for the reason that there was no written agreement of finance between the parties, the plaint could not have been rejected‑‑‑In the application for leave to defend the suit, it was not disputed by the defendants that the finance facility was not granted to them‑‑‑Defendants had raised question of written agreement only with regard to mark‑up and not about availing the finance‑‑ Banking Court had erroneously applied the provisions of O. VII, R.11, C.P.C. thus the order of rejecting the plaint was set aside and the case was remanded to Banking Court, for deciding matter afresh‑‑‑Appeal was allowed accordingly.
Judgment & Decree
MIAN SAQIB NISAR, J.‑‑‑The appellant brought a suit for the recovery against the respondents on the basis of IDA Credit Loan Facility, to the tune of Rs.3,00,000 granted to the respondents by the bank. The respondents filed the leave application, but without deciding the same, the learned Banking Court has rejected the plaint of the appellant under the provisions of Order VII, rule 11, C.P.C., through the impugned order dated 30‑7‑1999 holding that:‑‑ "Since the plaint is not supported by an agreement it is silent on the factum of repayment by the defendant although orally admitted by the learned counsel for the plaintiff, the plaint does not disclose a cause of action and the suit is not maintainable.. The plaint is therefore, rejected under Order VII, rule 11." Hence this appeal
2. The learned counsel for the appellant by referring to various paragraphs of the plaint, particularly paragraphs Nos.5 to 7 states that, the plaintiff/ appellant therein has specifically averred about the grant of the financial facility to the respondents on their request, which was duly approved and in consideration, certain documents were also executed by the defendants; therefore, even if no written agreement, envisaging the loan was executed by the parties or even not filed by the appellant, such omission could not have been considered as a ground for the non‑disclosure of the cause of action in the plaint.
3. We have heard the learned counsel for the parties and find that, the averments of the plaint, which should be deemed correct while considering, if it discloses cause of action or otherwise, disclosed the cause of action and only for the reason that, there is no written agreement o: finance between the parties, the plaint could not have been rejected. Even otherwise, from the perusal of the leave application, it is not disputed by the respondents that the finance facility was not granted to the respondent, rather the only ground taken is "That there is no written agreement between the plaintiff‑Bank and the defendants regarding the rate of mark‑up." It is only with regard to mark‑up, that the question of written agreement was raised and not about the availing of the finance. In such situation, the Court below. has erroneously applied the provisions of Order VII, rule 11, C.P.C., which order cannot be sustained. Resultantly, the same is set aside and the matter is remanded to the Banking Court, where the application of the respondents for leave to appear and defend shall be deemed pending and the matter shall be decided afresh in accordance with law. This appeal is accordingly allowed: M. H. / H‑35/ I Case remanded