Leave to defend suit

Markup was to be paid as per agreement, whereas if finance facility was availed in respect of running finance even beyond date of agreement, borrower was liable to pay markup at least on such running finance availed

Customers kept on availing facility and never objected to any of payments and/or markup

No substantial question of law or fact was raised and all contentions were stereotype and without any substantial material to support the same

Finance facility was availed for which various agreements were signed and properties were mortgaged and hypothecated

High Court declined to grant leave to defend suit

Suit was decreed in circumstances.

Mere denial of availing of amount by borrower is not sufficient to entitle him to grant leave to defend.

Court had the discretion to grant leave to defend suit either unconditionally or conditionally and that discretion had to be exercised judiciously

Purpose behind such scheme appeared to be empowering court to strike balance between two situations i.e. where triable issues were raised by defendant, unconditional leave to defend might be granted or where defence was presented with sole object of gaining time then court might insist on some condition

If stipulations so required were not complied with, leave granting order would not come into force leaving a very limited choice for court to act otherwise than decreeing the suit after considering merits of case.

Suit filed by respondent was decreed against appellant Bank as it did not file application for leave to defend the suit within statutory period

Validity

Appellant Bank despite service through publication did not approach Trial Court to obtain copy of plaint enabling same to file application for leave to defend the suit within stipulated period

Failure of appellant Bank to obtain leave to defend the suit as required under law left no option with Trial Court but to decree the suit based on averments made in plaint, in terms of S. 9(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001

No illegality was committed by Banking Court, which could be taken care of

Appeal was dismissed in circumstances.