2004 PLP 1334 (CLD)

Syed Fazal Mahmood for Respondent. Date of hearing: 26th January, 2004. SYED JAMSHED ALI, J.‑‑‑The judgment and decree dated 28‑8‑1998 of the learned Banking Court has been assailed in this appeal which arises out of the following circumstances.

2. The appellant herein approached the respondent‑Bank for the facility of loan for purchase of a vehicle under the Prime Minister's Transport Scheme which was sanctioned in his favour on 7‑12‑1992 in the sum of Rs.14,36,

721. This was followed by a written agreement between the parties and execution of security documents such as the Demand Promissory Note, Letter of Undertaking and Letter of Hypothecation by the appellant. According to the averments of the plaint, a sum of Rs.22,76,604 was outstanding against the appellant and despite notices dated 22‑12‑1994, 18‑9‑1995 and 13‑6‑1997 the appellant failed to liquidate the liability.

3. The appellant filed an application for leave to appear and defend on the grounds that the suit had been filed by an unauthorized person, no finance facility was given to him, the amount of loan was directly paid to supplier of the bus i.e., which was imported by the plaintiff‑Bank through its approved dealer i.e. Messrs Atlantic Motor Traders and the registration of the bus was in the name of appellant and the respondent. It was further averred that after taking the delivery of the bus, the appellant found that the bus was not in proper running condition and the appellant had to spend huge amount to bring it in road worthy condition. It was further averred that a fraud was committed by the plaintiff in collusion with the aforesaid importer, a number of complaints were made by the Transport Association to the Bank, in view of the aforesaid complaints the appellant was instructed by the respondent‑Bank to hand aver the above‑said bus to the importer. Accordingly, the said bus was handed over to the importer after a period of two and half months and since then it was in the custody of Naeem Ullah Sheikh of Atlantic Motors. The plea of misjoincler and non joinder of the necessary party was also taken with a further averment that the claim of the plaintiff‑Bank in the suit was ultra vires of the, provisions of the constitution. The application of the appellant for the grant of leave to appear and defend was dismissed and the suit filed by the respondent‑Bank was decreed.

4. The learned counsel for the appellant contends that the basis of decreeing the suit against the appellant was that availing of loan facility by him and execution of security documents was not denied. However, the most vital objection i.e. that the bus supplied by the Atlantic Motors Traders was defective and was returned to the supplier on the direction of the respondent‑Bank was not even adverted to and the documents filed alongwith the application were not even considered. And, the grounds taken in the application for leave to appear and defend were not determined by the learned trial Court.

5. On the other hand the learned counsel for the respondent‑Bank has defended the impugned judgment and decree and stated that the bus has been in use of the appellant, was impounded in the year 2000 and sold in 2001 for Rs.75,

000. Further, since availing of the loan facility the appellant did not pay a single penny to the respondent‑Bank. He further stated that it is utterly false that any Bank functionary had directed the appellant to return the bus to the supplier i.e. the Atlantic Motors Traders. He also contended that notices were addressed to the appellant in the years 1994, 1995 and 1997, the receipt of which was not disputed by the appellant and it was not even stated therein that he had already returned the bus to the Atlantic Motors Traders.

6. We have considered the submissions made by the learned counsel for the parties and have perused the record, including the documents filed by the appellant alongwith the application for leave to appear and defend. It may be observed at the outset that not only execution of the security documents was not disputed by the appellant even the quantum of outstanding liability was not disputed in the application for leave to appear and defend and the only averment regarding the statement of accounts made in ground (m) of the application was that it was contradictory and without consideration. Having neither disputed execution of the security documents nor even the quantum of the outstanding liability as per the statement of accounts, the only material plea on the basis of which leave to appear and defend was sought and which was pressed before this Court was that the vehicle supplied by the Atlantic Motors Traders to the appellant was defective and two and half months, thereafter, it was returned to the supplier under direction of the respondent‑Bank. In support of this plea, he relied on the fax message dated 16‑8‑1993 addressed to the Managing Director of Atlantic Motor Traders. It is, inter alia, signed by the appellant. It was a complaint that the buses were defective, the air‑conditioning system was totally useless and despite best efforts the conditions of the buses did not improve. In the end of this fax message it was stated that if no response was received within three days, the Sino pak Buses will be lined up at the Atlantic Show Room at Jail Road, Lahore. Irrespective of the evidentiary value of this fax message, the fact remains that till the issuance of the fax message the bus in question had not been returned to the Atlantic Motors. In any case if the appellant had to surrender the bus in question, it should have been handed over against a proper receipt to the Bank authorities or to the Atlantic Motor under a written authority of the Bank. A bare assertion was not sufficient to accept the contention that the bus had been returned under direction of the respondent‑Bank to the supplier. The other document appended with the leave application was a press clipping from daily "fang" dated 4‑11‑1996, according to which, the Chinese buses were not road worthy. This press clipping does not show that the bus supplied to the appellant was part of the consignment to which this news item related. However, perusal of this news item shows that according to the report of the Secretary Transport the buses imported from China had been given to the Educational Institutions. The case of the appellant was that he had incurred heavy expenditure to bring the bus in question in road worthy condition but not even a single document was placed on record to substantiate the plea, although this contention could be supported by documentary evidence, such as the repair bills of the workshop concerned.

7. We have also noticed that prior to the filing of the suit, notices were addressed to the appellant on 22‑12‑1994, 18‑9‑1995 and 13‑9‑1997 which were not even responded to by the appellant and by then, if the bus had been returned to the Atlantic Motor Traders, the appellant should have at least informed the Bank authorities in response to the aforesaid notices.

8. We have gone through the documents filed by the respondent‑Bank. The finance agreement clearly contemplates that "the Bank will not be liable under law or otherwise in respect of the goods purchased by the customer under and in terms with regard to quality, quantity, value or otherwise fitness for use". Therefore, if at all the bus had any defect, the remedy of the appellant was against the supplier. In the written undertaking, it was specifically covenanted by the appellant that the vehicle shall be run and managed by him at his risk and he will not part with or sublet or rent out the said vehicle and that it shall be maintained at the cost and expense of the A appellant. In view of this undertaking, the appellant could not be heard to say that he had returned the vehicle to the supplier.

9. As far the objection of the appellant that the suit was not filed by an authorized person is concerned, it has no merit. The suit was filed through Messrs Mohammad Aslam Khan and Shamim Ilyas, who were the duly constituted attorneys of the plaintiff‑Bank and the copies of the powers of attorney had been placed on the record.

10. After having examined the record we do not find that any case has been made out for interference. This appeal is, accordingly, dismissed. M.A.W./S‑30/L Appeal dismissed.