2003 PLP 46 (CLD)

ABDUL SHAKOOR PARACHA, J.‑‑‑This appeal impugns the judgment and decree dated 25‑1‑2002, passed by learned Judge, Banking Court No. II, Lahore whereby a decree for recovery of Rs.53,40,007, has been awarded in favour of respondent No. 1 /plaintiff (Muslim Commercial Bank Limited). The appellant was defendant No.4 in the suit.

2. Brief facts of the case are that respondent No.1 Muslim Commercial Bank Limited, Main Market, Gulberg Zone, Lahore, filed a suit for recovery of Rs.53,40,007, against the appellant and respondents Nos.2 to

4. It was asserted by the respondent No.1 the Bank that respondents Nos.2 to 4 had obtained finance facility from the Bank and the appellant stood guarantor. Initially the suit was decreed ex parte but subsequently on an application filed by the appellant for setting aside of the ex parte decree, the decree was set aside. Thereafter, the appellant filed an application for leave to appear and defend the suit within time and subsequently filed the amended application for leave to defend as per requirement of the Financial Institutions (Recovery of Finance) Ordinance, 2001. The appellant denied the execution of mortgage‑deed and documents regarding furnishing of security. The appellant maintained that the documents have been forged and fabricated by the, respondent‑Bank in collusion with other respondents.

3. The learned Banking Court No. II, Lahore proceeded to dismiss the application of the appellant for leave to defend the suit and passed the judgment and decree dated 25‑1‑2002 against the appellant and respondents Nos.2 to 4, and it was observed that the decretal amount is payable by all the defendants jointly and severally.

4. Before us, the learned counsel for the appellant has contended that neither any mortgage was created through deposit of title deed nor the appellant stood guarantor for any finance facility. It was further contended that signatures of the appellant Mst. Irshad Bibi on the documents are forged and the learned Judge, Banking Court No‑II had no jurisdiction to compare the disputed signatures of the appellant on the documents with her admitted signatures available on the record. He has relied on the case reported as Mst. Rabia Bai v. National Bank of Pakistan and another (NLR 1981 CLJ 371) to substantiate his argument that second copy of the title .deed creates no equitable mortgage.

5. Conversely, the learned counsel for the respondent -Bank has drawn our attention towards para. 6 of the plaint and contends that as an acknowledgement of and to secure repayment of the said finance, the defendants including the appellant executed the following documents in favour of the Bank:‑‑ (1) Certified sale‑deed regarding Property/Plot No.104 B‑1, Gulberg‑III, Lahore. (2) PT I regarding said property. (3) LDA letter regarding the share of Mst. Irshad Begum. (4) Transfer letter of LDA in favour of Irshad Begum. (5) Clearance Certificate. (6) Attested copy of decision of Arbitration. (7) NEC dated 7‑1‑1997. (8) Irrevocable General Power of Attorney. (9) Photo copy of NIC of Mst. Irshad Begum. (10) Registered Mortgage‑deed. (11) Agreement to create registered mortgage. (12) Approved plan by LDA. (13) Lien got recorded with LDA. Further contends that Mst. Irshad Begum appellant was ordered to appear before the Court so that her thumb -impressions may be compared with her thumb‑impressions on the documents. The Bank brought the original record but the appellant did not appear before the Court. He argued that under Article 84 of the Qanun‑e‑Shahadat Order, 1984 the Court had the jurisdiction to compare the signatures of the appellant on the documents with her admitted signatures available on the record. The Court has itself compared her signatures and found no difference.

6. There is force in the contention of the appellant that deposit of duplicate or second copy of the title deed creates no equitable mortgage, but in the present case the mortgage has been created through a registered mortgage deed signed by the appellant. She also signed an irrevocable general power of attorney, memo of deposit of title deed, the original allotment order issued by the L.D.A. have also been handed over to the Bank. In this view of the matter, the finance facility was availed by the respondents Nos. 2 to

4. In order to secure the said finance facility the appellant mortgaged her Property No. 104‑B‑1, Gulberg‑III, Lahore, and executed mortgage‑deed as described in para.6 of the plaint.

7. The appellant has denied the execution of any finance document including the mortgage deed. She was summoned by the Court to appear before it so that her thumb‑impressions may be compared with the thumb -impressions on the documents. The Bank brought the original record but the appellant did not appear before the Court. In this view of the matter, the Banking Court rightly resumed that she is not interested to get her thumb- impressions compared with her thumb‑impressions on the finance documents.

8. By virtue of proviso in Order III, rule 1, C.P.C. the Court can direct any person to appear in person. Personal appearance can be ordered under Order X, rule 4, C.P.C. and on his failure to do so the Court can proceed under Order IX, rule 12; C.P.C. which also includes passing of decree. See the case reported as Ayya Nadan v. Thanammal (AIR 1920 Mad. 213) and Sri Prabhu v. Dwarka Prasad (AIR 1919 Patna 36). In the present case the Court made comparison of signatures itself despite that the appellant did not appear in compliance of the Court order.

9. There is no force in the contention of the learned counsel for the appellant that the Judge, Banking Court had no jurisdiction to compare the signatures of the appellant on the financing documents with her admitted signatures on the documents on the record. In case reported as Waqas Enterprises v. Allied Bank of Pakistan (1999 SCMR 85) the Honourable Supreme Court itself compared the disputed signatures with the admitted signatures on the documents available on the record by observing:‑‑ "Court, in certain eventualities was enjoined with powers to itself compare signatures alongwith other relevant material to effectively resolve main controversy." The appellant has not raised any substantial question of law and facts needing trial of the case and therefore, the learned Banking Judge rightly rejected the application for leave to defend the suit and proceeded to decree the suit against the appellant and respondents Nos.2 to 4 vide the impugned judgment and decree dated 25‑1‑2002. No exception can be taken to the judgment and decree of the trial Court. Consequently, this appeal fails and the same is dismissed with costs. S.A.K./I‑143/L Appeal dismissed.