2003 PLP 606 (CLD)

Naseem Mehmood for Respondents. Date of hearing: 3rd October, 2002. MIAN HAMID FAROOS, J.‑‑‑This single judgment shall decide the present appeal (R.F.A. No. 184 of 2000) and the connected appeal (R.F.A. No. 295 of 2000) as common questions of law and facts are involved in both the appeals and they have arisen out of a single judgment.

2. Through the filing of the present appeals, the appellants, who all were arrayed as defendants in a suit for recovery of Rs.197,43,042, filed by the respondent‑Bank, have called in question judgment and decree, dated 11‑4‑2000, whereby the learned Judge, Banking Court, dismissed the separate applications for leave to defend the suit, filed on behalf of the appellants, and proceeded to decree the suit for the recovery of Rs. 1,97,43,042 with costs against them.

3. Precisely stated, the facts leading to the filing of both the appeals are that the respondent‑Bank filed a suit for recovery of Rs.1,97,43,042, against the appellants, wherein appellant No.1 in R.F.A. No. 295 of 2000, was arrayed as the principal debtor, while the other appellants in both the appeals were sued as guarantors. It was the case of the respondent‑Bank that certain financial facilities were granted in favour of Messrs Star Rug, the other appellants, being the defendants in the suit, who executed certain documents as detailed in para. 6 of the plaint; the appellants other than the principal debtor, also executed guarantees in order to secure the financial facilities; some of the appellants executed registered mortgage‑deed which find mention in para. 9 of the plaint and a general power of attorney was also executed in favour of the respondent‑Bank. It was submitted in the plaint that as the appellants, in both the appeals, committed default in fulfilling their legal and contractual obligations resulting into accumulation of the suit amount, thus, necessitating the filing of the suit. Under the above circumstances, the respondent‑Bank prayed for a decree for the suit amount alongwith costs. Pursuant to the receipt of summons, the appellants in the present appeal (R.F.A. No. 184 of 2000), filed application seeking leave to defend the suit, while the appellants, in R.F.A. No‑295 of 2000, filed a separate application praying for almost identical relief. In both the applications, the appellants raised certain legal and factual controversies However, during the pendency of these applications the respondent‑Bank filed an application seeking amendment in the plaint. Separates replies to the aforenoted application were filed by the appellants and the learned Judge, Banking Court, dismissed the application for the amendment of the plaint and both the applications, filed by the appellants, seeking leave to defend the suit vide separate order of even dates and consequent to that decreed the suit' for the recovery of ERs. 1,97,43,042, with costs, against the appellants vide judgment and decree, dated 11‑4‑2000, hence, the present appeals.

4. Learned counsel for the appellants, in R.F; A. No‑184 of 2000, has contended that although the learned counsel of the parties addressed arguments only on the application for the amendment of the plaint, yet the learned Banking Court proceeded to decide even the applications for leave to defend the suit without providing any opportunity, to, the appellants, of hearing on those applications, thus, the appellants have been condemned unheard. He has further contended that though the appellants created mortgage favouring Bank but the same was restricted to the amount of Rs. 8.8 million and as the said amount has been paid by the principal debtor, therefore, the mortgage created by the appellants stood automatically redeemed. He has added that the statement of accounts was not prepared in accordance with law and, in any case, the suit could not have been decreed on the basis of such a statement of accounts. Learned counsel for the appellants, in the other appeal (R.F.A. No. 295 of 2000) has contended that although a considerable amount, as is evident from the vouchers annexed with their leave application, was paid, yet the same has not been accounted for in the statement of accounts, filed by the respondent‑Bank, and this aspect of the case has not at all been considered by the learned Judge, Banking Court. He has further contended that the financial facilities were sanctioned on 29‑11‑1992, but the statement of accounts shows a debit entry of Rs. 89,30,727 even prior to the sanctioning of the amount and that too, without any explanation. He has added that the functionaries of the respondent‑Bank obtained the signatures of the appellants on blank‑papers, which was subsequently filled in and that this aspect of the case has been ignored by the learned Banking Court. Conversely; the learned counsel for the respondent Bank has submitted that all the grounds taken by the appellants in their leave applications have properly been attended to by the learned Banking Court and that no case for the interference in the impugned judgment and decree is made out, thus, he prayed for the dismissal of the appeals.

5. Upon the examination of the record we find that upon the presentation of the plaint, the learned Judge, Banking Court issued summons to the appellants, being the defendants in the suit and pursuant thereto defendants Nos. 1 to 3 and 8 and defendants Nos. 4 to 7, filed two different leave to defend applications on 27‑10‑1999, the replies of which were not filed by the respondent‑Bank on 23‑11‑1999 and instead thereof an application under Order VI, rule 17, C.P.C. for the amendment of plaint, was filed by the respondent‑Bank, which was also fixed for filing of the reply on behalf of the appellants. However, some of the defendants filed reply to the said application on 23‑12‑1999 and the others on 3‑2‑2000 and thereafter the case was fixed for addressing arguments. However, order, dated 3‑2‑2000 is not clear as to whether the case was fixed for hearing the arguments on. all the applications or only the application for the amendment of the plaint was to be heard. The tenor of the order, if read in juxtaposition with the preceding order, shows that the case was fixed for arguments only on the application for the amendment of the plaint. However, on the next date of hearing i.e. on 17‑2‑2000. the case was posted for addressing arguments on the applications for leave to appear and defend the suit. Although order, dated 2‑3‑2000 shows that the arguments were addressed on the application, yet, it is not clear that on which application, the arguments were addressed. Thereupon, the case was postponed for the announcement of orders, which could not be announced for a considerable period necessitating the re‑hearing of the case. Even after re hearing of the case, the learned Judge, did not announce the order for three dates and ultimately on 11‑4‑2000 dismissed all the applications and also decreed the suit through a composite judgment.

6. Above resume of the order‑sheet amply manifests firstly that the respondent‑Bank did not file replies to the applications for leave to appear and defend the suit and secondly the learned Judge did not provide any opportunity of hearing to the appellants on these applications, thus, undoubtedly they have been condemned unheard. Additionally, the tenor of the order sheet as narrated above, sufficiently supports the contention raised by the learned counsel for the appellant that no arguments were heard on the applications for leave to appear and defend the suit. The learned Judge did not specify in any of the orders as to whether the arguments were to be addressed on the application for amendment of plaint, applications for leave to defend the suit or on all the applications, as we find that the interim orders passed by the learned Judge are vague and unspecific. We are of the view that the appellants were not afforded any opportunity of hearing on these applications and the learned Judge, after hearing the arguments only on the application for amendment of the plaint, proceeded to decide all the applications under the erroneous perception that he has heard the arguments on all the applications. After hearing the arguments on the application for amendment, the case was adjourned on numerous occasions, which, to our mind, must have resulted in misconception in the mind of the learned Judge, Banking Court, who proceeded to decide all the applications, even without taking into consideration the record of the case and without noticing that the respondent‑Bank did not file reply to the leave applications instituted on behalf of the'. appellants. By not affording the‑ opportunity of hearing to the appellants, their interests have gravely been prejudiced, as, at least, they had right to be heard by the learned Banking Court before saddling them with a colossal liability. This ground alone, to our mind, is sufficient to set aside the impugned judgment and decree, so that the appellants may be afforded a sufficient opportunity of hearing, lest they complain again that have been condemned unheard.

7. Another important aspect of the case is that we find from the record, as noted, above, that the respondent‑Bank did not file replies to the applications for leave to defend; thus it, inter alia, flows therefrom that there is no rebuttal on record by the respondent‑Bank to the assertions mane by the appellants in their leave application, inasmuch as no counter‑affidavits were filed in order to contradict the pleas raised by the appellants. Had the learned Judge noticed this aspect of the case, he would, perhaps, have granted leave to‑defend the suit on this score alone. We are, of the view that learned Judge has completely misread the record of the case and proceeded to pass the impugned decree in a mechanical manner without application, of judicial mind.

8. In view of the arguments raised by the learned we have also examined the statement of which is not only sketchy but the necessary of debit entries are also missing. Even the of accounts does not bear the account number, this statement of accounts relates. We have the said statement of accounts and find that the is ambiguous and does not at all explain as to how amounts have been debited in the account of principal debtor. Mark‑up entries are also not Even the learned counsel for the respondent‑Bank could not explain the entries in the statement of accounts and as to how the huge suit amount has been worked out. Confronted with the contents of statement of accounts, the learned counsel, after finding difficult to explain the entries, was constrained to request that he may be allowed some time to file the complete and detailed statement of accounts. We are afraid, we cannot allow this request at this stage as this would amount to putting the cart before the horse. The learned Judge Banking Court has already passed a decree, most probably, without even looking at the statement. of accounts. We find in the impugned judgment that after the dismissal of the applications for leave to appear and defend the suit, the learned Banking Court without discussing the statement of accounts and even the documents on record, only on the basis of dismissal of the applications for leave to defend, proceeded to decree the suit.

9. As regards, the contention raised by the learned counsel of the appellants, in R.F.A. No. 295 of 2000, we have examined the application for leave to defend the suit, filed on behalf of the said appellants, and do find that alongwith the said application, photocopies of certain credit advices have been annexed. Now if the contents of the said leave application coupled with those documents are placed in juxtaposition with the impugned judgment and decree, it would be evident that the same have not at all been taken into consideration by the learned Banking Court before passing a decree for the huge amount. At least, the appellants have this much right that the documents replied upon by them are to be considered by the Courts before piling up the huge liability against them. We are of the view‑ that this is a clear case of non‑reading of documents on record.

10. Upon the examination of the impugned judgment. we find that the approach of the learned Judge is perfunctory and he has without discussing the documents on record and dealing with the respective contentions raised by the learned counsel for the parties jumped to the conclusions viz. "that the documents appended with the plaint fully support the claim of the plaintiff . Even no documents have been referred to in the impugned judgment. We are of the view that the impugned judgment is not a speaking judgment and is devoid of reasons, thus, in our view, the same is not sustainable in law being in contravention of law declared by the Hon'ble Supreme `Court of Pakistan in various cases, like Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (PLD 1959 Supreme Court (Pak.) 272), Gouranga Mohan Sikdar v. The Controller, Import and Export and 2 others (PLD 1970 Supreme Court 158), Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 Supreme Court 173) and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others (1984 SCMR 1014).

11. As we are inclined to remand this case to the learned Judge, Banking Court for the fresh decision of the suit and applications for leave to defend the suit, therefore, we have refrained from rendering our findings on some of the pleas raised by the learned counsel for the parties, touching the merits of the case, lest these findings may prejudice the cause of either of the parties, as after the remand of the case, the entire case .would be opened before the learned Judge Banking Court.

12. Upshot of the above discussion is that both the appeals are allowed and the impugned judgment and decree, dated 11‑4‑2000 is set aside with no order as to D costs. The result would be that the applications for leave to defend the suit, filed by the appellants, and the suit instituted by the respondent‑Bank, shall be deemed to be pending before the learned Judge Banking Court, who on the first date of hearing shall grant an opportunity to the respondent‑Bank to file the replies to the two applications for leave to appear and defend the suit and complete statement of accounts and thereafter decide both the aforenoted applications providing sufficient opportunity of hearing to the parties and of course in accordance with law within a period of two months from the receipt of the order. Q.M.H./M.A.K./M‑1542/L Case remanded.