2005 PLP 389 (CLD)

3. Learned counsel of the respondent‑Bank submits that respondent‑Bank has mentioned this fact in para.4 of the plaint and also denied in reply of para. 14 of the application for leave to defend the suit. He further submits that respondent "has conducted the auction in which the vehicle in question was sold for Rs.270,000 and said .amount was shown in statement of accounts vide two entries qua principal amount and interest vide entries in both the statement of accounts dated 24‑6‑1998. He further submits that statement of accounts was certified and signed by the two officers of the Bank who are duly authorized to sign the statement of accounts. He further submits that appellant has given undertaking before the respondent‑Bank that he would accept the price of the vehicle in question which was sold by the respondent‑Bank in auction.

4. Learned counsel of the appellant in rebuttal submits that respondent‑Bank did not mention in the aforesaid entries that the respondent‑Bank has credited the amount mentioned in the entries dated 24‑6‑1998. He further submits that this is only mentioned in the statement of account "repayment by the appellant" which is not borne out from the record.

5. We have given our anxious consideration to the contentions of the learned counsel of the parties arid perused the record.

6. It is better and appropriate to reproduce operative parts of the plaint, application for leave to defend, reply of the respondent‑Bank to the said application, impugned judgment and statement of account to resolve the controversy between the parties:‑‑ "Because the defendant did not pay the instalments within its due dates, therefore the plaintiff/ Bank impounded the said vehicle and sold the same in an open auction and sums received have been deducted from the statement of account, and the present suit is being filed after deduction of the auction price." "That the vehicle was taken over by the officials of the plaintiffs Bank on 22‑4‑1997 and it was sold out illegally by them for Rs.375,000 without notice to the defendant on 26‑5‑1997 and that amount has not been shown to be credited in the statement of account. The statement of account has illegally been prepared with mala fide intention to misappropriate the sale amount of the vehicle. Thus the plaintiff is not entitled for decree as prayed for." "24‑6‑1998 By repayment 98658 24‑6‑1998 By repayment 171,342" "Statement of account does not show any compound mark‑up. The documents appended with the plaint fully support the case of the plaintiff while the defendants have failed to prove their contentions so raised in the application for leave to defend the suit. The defendants have raised some objections which are of casual and routine type. Consequently, I do not feel myself .in agreement with the learned counsel for the defendants and dismiss the application for leave to defend the suit." In case the aforesaid pleadings of the parties and the operative part of the impugned judgment is put in a juxta position then it is crystal clear that the Banking Court has decided the case without application of judicial mind which is condition precedent as the law laid down by the Honourable Supreme Court in Mollah Ejahar Ali's case PLD 1970 SC

173. After addition of section 24‑A in the General Clauses Act even the public functionaries are duty bound to decide the controversy between the parties with reasons and section 24‑A of the General Clauses Act is procedural in nature which has retrospective effect as per principle laid down by the Honourable Supreme Court in the following judgments: Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268; Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419. In view of what has been discussed above, this appeal is accepted and the impugned judgment and decree are set aside. Meaning thereby, the application filed by the appellant for leave to defend the suit shall be deemed to be pending adjudication before the Banking Court. The parties are directed to appear before Banking Court No.2, Lahore on 12‑5‑2004. S.A. K./N‑42/L Appeal accepted.