Recovery of bank loan

Plea raised by defendants was that charge of mortgage could not have been created upon properties by Bank as same were in name of minors

Validity

Permission/sanction was obtained from Guardian Court and restraint incorporated in Guardianship Certificate was not applied to mortgage under reference in wake of sanction/permission in writing by Guardian Court

No objection was ever raised by defendants to order issued by Guardian Court and mortgage deed regarding property in question was executed after order issued by Guardian Court

Creation of mortgage charge was legal and was enforceable against defendants in terms of judgment and decree passed by Banking Court

High Court declined to interfere as no illegality or defect was pointed out in judgment passed by Banking Court

Appeal was dismissed in circumstances.

Any lacuna left at time of filing of plaint could not be cured and/or rectified at time of filing of replication in answer to the leave to defend application, as in such situation, the defendants would not have the opportunity to rebut the newly built-up case and/or challenge other documents suitably if the same were brought on record through replication

Mandatory requirement of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, in no way, could be postponed or otherwise cured subsequently by way of replication

Opportunity provided to a financial institution, in terms of S. 10(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 was a limited opportunity to the extent of reply only in answer to the leave to defend application.

Defendants took the plea that the plaintiff-Bank had obtained the finance documents in question in blank and filled-up the same while filing present suit

Validity

All finance agreement were coupled with Promissory Notes, and all the other documents annexed with the plaint had been duly filled-up with dates and figures, which belied the defendants' plea that said documents had been obtained in blank.

Liability of the defendant-guarantor was co-extensive with that of the defendant-principal debtor, unless, the letter of guarantee provided otherwise

Anything done, or promise made for benefit of the principal debtor was sufficient consideration to constitute so far as the surety was concerned

Letter of guarantee was a contract to perform a promise or discharge liability of a third person, as and when default occurred

Defendant, however, in the present case, was principal customer; therefore, he himself could not stand as guarantor.

Defendants took the plea that no cause of action had been shown to have accrued in favour of the plaintiff-Bank to file present suit

Validity

Contents of the plaint showed that cause of action had arisen in favour of the plaintiff-Bank and against the defendants on various dates

Objection was, therefore, repelled.

Defendants took the plea that plaintiff-Bank had concealed material fact, as the execution of the Restructuring Agreement had not been pointed out while filing the suit

Validity

Plaintiff-Bank had specifically stated in its reply that the defendant had failed to fulfil the terms and conditions of the Restructuring Agreement satisfactorily

Under the Restructuring Agreement, in case of any contradiction between the terms and conditions of said Agreement, and Offer Letter, the terms and conditions of the Offer Letter were to prevail

Defendants having failed and/or avoided to fulfil the terms and conditions of the Restructuring Agreement, as such, the suit filed by the plaintiff-Bank on basis of documents executed earlier to said Agreement was not only proper but also enforceable.

Defendants raised the objection as to maintainability of the suit on the ground that the same had not been filed by competent/authorized person

Validity

Word 'otherwise' used in S. 9(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001 was not to be given restrictive meanings

Word 'otherwise' not only enlarged the authority of an officer of financial institution but the same also embraced within its ambit, apart from the power of attorney, any other documents that were Special Power of Attorney, Letter of Authority and/or Board's Resolution of company, on strength whereof, a person/officer including Manager of the Financial Institutions became competent not only to verify the plaint on oath, but also to institute a suit in Banking Court for recovery of outstanding amounts

Plaint in the present suit, had been verified by the duly constituted attorney of the plaintiff-Bank

General Attorney of the plaintiff-Bank had duly signed and executed the Special Power of Attorney and thereby had duly authorized the Special Attorney to initiate present recovery proceedings

In terms of Ss. 196 & 197 of Contract Act, 1872, even otherwise, the principal, at later stage could validly ratify the defect, if any

Plaint of the suit, therefore, had been properly and validly verified, and the suit had been competently filed by the Special Attorney.

Defendants raised that objection that plaintiff-Bank, while filing present suit, had not complied with the mandatory requirements of S. 9(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and that mark-up over mark-up had been charged

Validity

Statement of Accounts only contained the dates but also the debit, credit and balance entries

Certified Statement of Accounts also bore the requisite certificates duly signed by Branch Manager of the plaintiff-Bank

Stamp of the plaintiff-Bank was also affixed on the Statements of Accounts

Defendants had not pointed out any specific entry in the Statement of Accounts as being wrong and/or pertained to mark-up over mark-up

Under S. 2(e)(ii) of Financial Institutions (Recovery of Finances) Ordinance, 2001, customer was under obligation to fulfil his commitment made with financial institution regarding repayment of finance and/or any other amounts relating to finance, fulfilment of an undertaking and performance of a promise

Rescheduling, restructuring and renewal of finance facility was facility or accommodation which under the prevailing practice was usually extended to customer on his request

In rescheduling etc., the balance outstanding amounts in the Certified Statements of Accounts was not required to be disbursed; outstanding amount, however, was brought forward in the statement of account

Statement of account, much prior to the last Finance Agreement that was rescheduled/restructured and renewed also was not to be filed, as in restructuring/rescheduling etc., the balance outstanding amount was always acknowledged through execution of a fresh finance agreement

Defendants failed both to fulfill the mandatory requirements of S. 10(3)(4)(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and to raise substantial question of law and fact which might require recording of evidence

High Court, dismissing the application for leave to defend, decreed the suit with cost of funds.

Suit filed by bank against defendant was decreed ex parte on the ground that process was issued according to all prescribed modes and he failed to appear before Banking Court

Validity

Summonses sent to defendant through courier service were returned with the remarks that defendant had shifted from address at which summonses were sent

Summonses to defendant were sent through ordinary registered post instead of sending the same through registered post acknowledgement due, due to which there was nothing on record to show that summonses were duly served upon him or he had refused to receive the same

Bailiff did not submit his report nor was there any report by him available on record to show that summonses had received by defendant or he refused to receive the same

No evidence was available on record to show refusal on the part of defendant, or non-service or proper service of summonses upon him

By not sending summonses through registered post acknowledgement due as specifically provided in S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, mandatory compliance was not made

By passing ex parte order against defendant, despite such non-compliance, Banking Court committed a grave illegality

Summonses were not issued in accordance with S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, defendant was not served and service upon him was never held good

Without first holding service good upon defendant, no further proceedings could be taken in suit nor any adverse order could be passed against him

Ex parte order passed against defendant was not sustainable and was liable to be struck down/set aside and application for leave to defend was within time

High Court converted appeals into Constitutional petitions, ex parte order passed by Banking Court against defendant was declared illegal and without jurisdiction and was set aside

High Court directed the Banking Court to decide application for leave to defend in accordance with law

Petition was allowed accordingly.

Contention of defendant was that suit for recovery was not maintainable since the defendants had availed and complied with Incentive Scheme issued by the State Bank of Pakistan via Circular No.19 dated 5-7-1997

Held, that a Banking Company could not deviate from Circulars issued by the State Bank of Pakistan due to their binding nature

Directions issued in the shape of Circulars were as consequence of promulgation of a statute or an Act of Parliament and banks were obliged to follow the same

In the present case, since Invective Scheme was duly complied with by the defendants, therefore suit for recovery of plaintiff Bank was not maintainable

Suit was dismissed, in circumstances.

Suit filed by bank against defendant was decreed ex parte on the ground that process was issued according to all prescribed modes and he failed to appear before Banking Court

Validity

Summons sent to defendant through courier service was returned with the remarks that defendant had shifted from address at which summons was sent

Summons to defendant was sent through ordinary registered post instead of sending the same through registered post acknowledgement due, due to which there was nothing on record to show that summons was duly served upon him or he had refused to receive the same

Bailiff did not submit his report nor was there any report by him available on record to show that summons had received by defendant or he refused to receive the same

No evidence was available on record to show refusal on the part of defendant, or non-service or proper service of summons upon him

By not sending summons through registered post acknowledgement due as specifically provided in S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, mandatory compliance was not made

By passing ex parte order against defendant, despite such non-compliance, Banking Court committed a grave illegality

Summons was not issued in accordance with S.9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, defendant was not served and service upon him was never held good

Without first holding service good upon defendant, no further proceedings could be taken in suit nor any adverse order could be passed against him

Ex parte order passed against defendant was not sustainable and was liable to be struck down/set aside and application for leave to defend was within time

High Court converted appeals into Constitutional petitions, ex parte order passed by Banking Court against defendant was declared illegal and without jurisdiction and was set aside

High Court directed the Banking Court to decide application for leave to defend in accordance with law

Petition was allowed accordingly.

Plaintiff bank filed suit against defendant for recovery of amount and relied upon different documents including statement of accounts and other documents

Defendants did not file any written statement to rebut the documents relied upon by plaintiff

Effect

Plaintiff succeeded in proving assertions made in plaint by filing affidavit in ex parte proof

Both the plaint in suit as well as affidavit in ex parte proof were on oath and there was nothing in rebuttal

Suit was decreed in circumstances.

Decree holder filed execution application against judgment debtors but the same was dismissed by Banking Court being barred by time

Validity

Dispute between the parties was not that principal judgment debtor was not a company

After winding-up order, decree holder approached Company Court for execution of decree

Company Court entertained execution application and accepted decree holder's claim partially and finalized execution of decree against judgment debtor company

Pendency of execution of decree before Company Court established the fact that decree holder filed execution of decree within three years of passing of decree and did not fail to file execution of decree within three years of the decree

High Court set aside the judgment and remanded the matter to Banking Court for proceedings with execution of decree

Appeal was allowed accordingly.

Defendants in their letter admitted that they could not make payment of outstanding dues of plaintiff Bank and then raised objections to statement of account but on scrutiny objections were found to be superficial and having no substance

Defendants could not prove that any of the entries in statement of account produced before Banking Court was wrong

If there was any discrepancy in statement of account, the same should have been brought to the notice of court to reconcile the same

High Court dismissed leave to defend application of defendants on technical ground as well as on merits

Defendants could not show any infirmity in order passed by Single Judge of High Court and such findings were maintained in High Court appeal.

Impression entertained by defendant that ambiguity or apparent inconsistency in material on record might entitle defendants to adopt a speculative plea was wrong

Plea of denial of disbursement taken by defendants before High Court knowing that Rs.25 million was actually paid by plaintiff bank, tantamount to taking a false plea and committing abuse of process of court

High Court imposed cost on defendants

Application was dismissed, in circumstances.

Judgment and decree passed by Banking Court was assailed by bank on the ground that bank was entitled to recover service fee from defendant

Validity

Service which was being rendered by bank to defendant had come to an end on 22-6-2007, when defendant stopped availing facility and credit card in question was cut into two pieces and was dropped by him in drop box of concerned branch of the bank

No justification was available for charging service fee after such date as the same would have been justified only if defendant after committing default was still utilizing the facility and bank was rendering services to him

Rate at which service fee was to be charged by bank was never agreed by parties nor any specific rate was mentioned in plaint and statement of accounts

Mark-up/profit could not be charged without mutual agreement and/or beyond mutually agreed period

Customer could not be penalized twice for the same wrong/default and for the same period, that was, default in fulfilment of his obligation by charging service fee or any other type of penalty from him from the date of default on one hand and on the other hand by claming cost of funds from him with effect from the same date of default

Cost of funds having been granted to bank by Banking Court from the date of default on the amount claimed by bank, therefore, bank was not entitled to service fee for the same period

High Court declined to interfere in judgment and decree passed by Banking Court

Appeal was dismissed, in circumstances.

Plea raised by Muccaddam was that Banking Court had no jurisdiction to entertain any such case under Banking jurisdiction

Validity

Mere execution of agreement by Muccaddam did not bring Muccaddam within the definition of "customer" as defined under S.2(c) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and he could not be sued

Bank's legal remedy against Muccaddam, if any, was under original civil jurisdiction, therefore, suit under Financial Institutions (Recovery of Finances) Ordinance, 2001, was not maintainable

Single Judge of High Court had no jurisdiction under Banking jurisdiction to pass judgment and decree against Maccaddam

Plaintiff bank did not comply with mandatory requirements of S.9(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, in respect of Muccaddam and had not stated anywhere in the plaint about finance availed by him, repayments made by him with dates thereof and amount of finance repayable by Muccaddam

Bank did not establish any case against Muccaddam under Financial Institutions (Recovery of Finances) Ordinance, 2001, as suit against Muccaddam was not maintainable

Division Bench of High Court, in exercise of appellate jurisdiction set aside judgment and decree passed by Banking Court against Muccaddam

Appeal was dismissed in circumstances.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Defendant contended that no amount whatsoever was due and payable as facility under Murabaha Finance Agreement was not disbursed and Forced TR was paid off by defendant

Validity

Documents appended with plaint showed that principal amount under Murabaha Finance Agreement was Rs.150,000,000 and its resale price was Rs.154,974,658

Resale price having been settled, therefore, prima facie, plaintiff was not entitled to charge profit of Rs.9,768,164 of which no plausible explanation was available to plaintiff

What amount was actually due and payable under Forced TR, if compared with the figures mentioned in application and agreement for irrevocable documents was to be proved which was the application and agreement for irrevocable documents which showed that Forced TR of US$ 776,026.24 was created

If US$ were calculated at the rate of Rs.62.30 (conversion rate at the relevant time) it had come to Rs. 48,346,435 as against the same, plaintiff had mentioned that defendant had paid the amount towards such Forced TR to the extent of Rs.51,184,543 which also required reconciliation through evidence

All such discrepancies having been raised by defendant had come within the pale of substantial questions of law and fact and required evidence and to prove the case, leave had become inevitable and the same was granted

Application was allowed in circumstances.

Nothing was available on record whereby it could be deduced that amounts claimed by bank were not due and payable by defendants to bank, more particularly when legal notice was sent, despite receipt by defendants, was not responded to and liability mentioned therein was not disputed or denied

Defendants had only mentioned that they would revert back to it in due course of time

Validity

Principal outstanding amount and agreed profit together with cost of funds as calculated by plaintiff was accepted against Murabaha facility and Ijarah facility

Charity against Murabaha and Ijaraha facility was declined inasmuch as the same was nothing but mark up on mark up and could not be allowed in any form

Suit of bank was decreed to the extent of amounts mentioned in statement of summary of accounts minus charity mentioned against Murabaha and Ijarah finance

Suit was decreed accordingly.

Mere filing of suit for accounts by defendant / borrower did not mean and form valid, good or substantial ground for leave

Defendant had to stand on his own legs and to make out a case for leave to defend it

No substantial question of law and facts was raised by defendant

Only by passing amounts claimed by plaintiff had been denied, that too by taking the stand that suit against bank was pending, was not sufficient to claim leave

Application was dismissed in circumstances.

Plea raised by defendants was that statement of accounts provided by bank did not fulfil requirement of S. 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and the suit was not filed by authorized persons

Validity

Bank gave statement of accounts in sufficient detail and break-up, not only therein but also in the body of plaint, and the same had met the requirements of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, as the requisite information was ably communicated to the defendants

Documents attached with plaint showed that the suit was competently filed

No substantial question of law and facts was raised by defendants in their application for leave to defend that required recording of evidence for which leave was necessary

Defendants had also admitted their liability and no case for leave was made out

Application was dismissed in circumstances.

Suit filed by bank was decreed in its favour on the basis of report prepared by Chartered Accountant appointed by Banking Court to examine the accounts of bank

Banking Court, after going through tabulated figures and conclusion arrived at in the Chartered Accountant's report, observed that assessment of accounts had thoroughly been made by Chartered Accountant, as he had dealt in details each and every transaction of three accounts maintained by defendants with bank and such figures were not controverted by bank during cross-examination

Banking Court further held that while dealing with accounts, entries from Books of Accounts and Registers made for the purposes of calculations, were in accordance with Arts.74 and 76 of Qanun-e-Shahadat, 1984

Validity

Conclusion arrived at after affording extensive cross-examination of Chartered Accountant and opinion arrived therein fell within the parameters of Arts. 48 and 65 of Qanun-e-Shahadat, 1984

Bank failed to point out any error either in the observation and conclusion drawn by Chartered Accountant in his report, nor any illegality had been pointed out in the judgment and decree passed by Banking Court, which otherwise was based on proper reading of evidence and sound principles of law

Division Bench of High Court, in High Court appeal, did not find any error in the judgment and decree passed by Banking Court, which was otherwise based upon report of an expert, whereas neither bank nor defendants could refer to any document or evidence which could possibly justify any interference in the judgment

Appeal was dismissed in circumstances.

Defendant did not deny availing of finance facility and contended that finance facility extended in year, 2007, was nothing but renewal of running finance facility previously granted and defendant never agreed to the same

Validity

Restructured amount was always an admitted and acknowledged amount by borrower and no disbursement was involved in such restructuring which was distinct and different from fresh finance, where disbursement was pivotal

Restructuring of borrower's liability was an accommodation and latitude extended by financial institution

No case for leave was made out and application for leave to defend the suit by defendant was dismissed

Suit was decreed accordingly.

Plaintiff sought passing of judgment under O.XII, R.6 C.P.C. on the ground that defendant had allegedly made admissions with regard to claim of plaintiff

Validity

Issues were framed with regard to liability to pay under guarantees and circumstances under which guarantees had been executed it could not be said that it was a case of admission and the case could not be decided on the decision of two issues referred by plaintiff

Dispute between the parties could not be decided without first resorting to leading of evidence on all issues including those two which were subject-matter of application under O.XII, R.6, C.P.C.

Application was dismissed in circumstances.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Plaintiff sought passing of judgment under O.XII, R.6 C.P.C. on the ground that defendant had allegedly made admissions with regard to claim of plaintiff

Validity

Issues were framed with regard to liability to pay under guarantees and circumstances under which guarantees had been executed, it could not be said that it was a case of admission and the case could not be decided on the decision of two issues referred by plaintiff

Dispute between the parties could not be decided without first resorting to leading of evidence on all issues including those two which were subject-matter of application under O.XII, R.6, C.P.C.

Application was dismissed in circumstances.

Suit was filed and signed by Branch Manager of the Bank who was fully authorized under S.9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

Contention of the defendant that application under S.144, C.P.C. should not have been decided along with the petition for leave to defend the suit rather the same should have been decided first was a mere technical objection without entailing any serious consequence and of no substance, particularly after rejection of defendant petition for leave to defend the suit and passing of impugned judgment and decree by the Banking Court

Banking Court had rightly rejected the application under S.144, C.P.C.

High Court with the consent of parties appointed a Chartered Accountant's firm as Commissioner to scrutinize accounts of parties

High Court directed the parties to provide entire record pertaining to the finance/loan to the Commissioner who would scrutinize the record to ascertain quantum of finance and payments made by defendant, including mark up calculated on the finance in pursuance to finance agreement

High Court directed the Commissioner/ Chartered Accountants firm to furnish detailed report of accounts

Application was allowed accordingly.

Application for leave to defend the suit was dismissed by Banking Court and suit was decreed in favour of Financial Institution

Plea raised by defendant was that Financial Institution had re-possessed the vehicle, therefore, leave to defend the suit should have been granted to him

Validity

Documents of re-possession filed by defendants together with such statement were scrutinized by Banking Court so also letter of Financial Institution showing that vehicle was not re-possessed by it

Banking Court came to conclusion that documents of re-possession were prepared for wrongful gain and vehicle had not been re-possessed by Financial Institution

Such finding of Banking Court was based upon sound reasons and therefore, the same did not call for interference by High Court

No serious and bona fide dispute of triable issue existed between the parties so as to get it resolved by recording evidence

Leave to defend the suit was rightly refused by Banking Court and suit was rightly decreed in favour of Financial Institution

Appeal was dismissed in circumstances.

Defendants contended that suit filed by bank was not maintainable as plaintiff bank should have sold pledged shares available with it

Validity

It was a right of pawnee/pledgee either to bring a suit upon debt or to sell goods pledged upon giving a reasonable notice of sale

Both rights were concurrent and had been provided under section 176 of Contract Act, 1872

Pawnee had a right under section 176 of Contract Act, 1872, to auction the debt, notwithstanding possession of goods, subject to pawnee's right to redeem the goods upon tender of amount due before the sale

Plaintiff bank had rightly filed suit in spite of the fact that pledged shares were not sold and were retained by plaintiff bank-Such action of bank was in line with the provisions of section 176 of Contract Act, 1872.

Plaintiff bank resisted application for leave to defend on the ground that defendants did not comply with mandatory requirements of section 10(3)(4)(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Validity

Application filed by defendants did not comply with the provisions of section 10 (3)(4) and (5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, the same was liable to be dismissed under the provision of section 10(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Defendants failed to show any sufficient cause for their inability to comply with such requirements

Defendants did not discharge their obligations as per agreement and suit was rightly filed by plaintiff bank

Defendants failed to make out any substantial question of law as well as fact in respect of which any evidence was required to be led

Application for leave to defend the suit filed by defendants was dismissed by High Court

Suit was decreed in circumstances.

Plea raised by defendant was that he had raised substantial question of law and facts and the same could not be determined without recording of evidence

Validity

There was only one financial facility, which was admittedly disbursed to defendant, who admitted availing of the same in full and had also admitted execution of documents

Amount paid by defendant on account of principal reflected in statement of accounts and nothing had been paid on account of mark-up by defendant to plaintiff bank, as such the same did not require any inquiry to be made by an expert or recording of evidence

Defendant failed to raise any substantial question of law or facts, therefore, High Court declined to grant leave to defend the suit to defendant

Suit was decreed in circumstances.

According to agreement between parties, Muccaddam was responsible for all losses, theft, damages, pilferage, demand, expenses, charges, rents, actions and suits etc. which the bank would suffer due to shortage or loss and destruct of the goods for any reason

Bank filed suit against borrower as well as Muccaddam for recovery of bank loan

Validity

Pledged goods were delivered to Muccaddam, which were under its exclusive control under lock and key

In confirmation thereof, Muccaddam along with borrower, had executed stock reports of pledged goods which were removed, the same had caused loss to the bank and Muccaddam did not indemnify the bank

No substantial question of law and facts were raised in respect of which any evidence was to be recorded.

Suit was decreed in favour of bank and against Muccaddam to the extent of value of pledged goods along with costs of funds from the date of default till realization

Suit was decreed accordingly.

Defendant availed finance facility and certain payments were made by defendant to bank on account of mark up, therefore, defendant could not challenge relationship of banker and customer between the parties

Defendant admitted availing of financial facility and also admitted that nothing had been paid towards principal amount which was payable by defendant to bank

Defendant failed to make out any substantial question of law or fact which required evidence to be recorded

High Court declined to grant leave to defend the suit to defendants

Suit was decreed in circumstances.

Defendants admitted availing of finance facilities and also admitted that entire liability was not discharged, however certain payments were made by defendants

Defendants also admitted execution of documents and substantial amount was liable to be paid to bank

Validity

No substantial question of law and fact was raised by defendants, which required any evidence to be recorded by Court

Defendants were supposed to show that entire amount was paid by defendants to bank but defendants failed to make out any substantial question of law or fact which required evidence to be recorded

High Court declined to grant leave to defend the suit to defendants

Suit was decreed in circumstances.

Bank sought attachment before judgment of the properties of defendants which were not mortgaged at the time of availing of loan

Validity

Attaching of the properties would adversely affect the business of defendants and their business would come to halt, as such the same could not be justified in any manner, in presence of sufficient security being available to the bank in the form of mortgaged property

Provision of S. 16(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, was applicable to the properties mortgaged/ pledged, whereas bank had sought attachment of properties other than mortgaged/ pledged properties, therefore, application was not sustainable

Order for attachment before judgment could be passed under O.XXXVIII, R.5, C.P.C. on mere apprehensions/ presumptions

High Court declined to attach the properties of defendant before judgment

Application was dismissed in circumstances.