' MIAN HAMID FAROOQ, J.---Through the filing of the present appeal, under section 9 of the Banking Tribunals Ordinance, 1984, National Bank of Pakistan, the appellant/plaintiff, has partially called in question judgment and decree dated 26-6-1996, whereby the learned Banking Tribunal, although passed a decree for the recovery of Rs.4,40,319 in favour of the appellant, yet disallowed a sum of Rs.1,96,681, which prompted the appellant-Bank to file the present appeal.
2. Precisely stated, the facts culminating to the filing of the present appeal are that National Bank of Pakistan, on 27-7-1995, filed a suit for the recovery of Rs.6,37,000, under mark-up system, against respondents Nos.1, 3 and Muhammad Zafar Bhatti, the predecessor-in-interest of respondent No,2, before the then Banking Tribunal Lahore. It was alleged in the plaint that the defendants in the suit, being the customers, were granted financial accommodation, under "cash finance system" on mark-up basis, of Rs.15,00,000, which was availed by the defendants in the suit against pledge of stocks, as security of the said finance. It was further averred in the paint that in order to secure the said finance, Muhammad Zafar Bhatti deceased executed certain documents, including a registered mortgage deed, particulars whereof are given in para No,7 of the plaint, and the respondents failed to liquidate their liabilities and thus a sum of Rs.6,37,000, as is evident from the statement of accounts, fell due. It was the case of the appellant-Bank that the defendants defaulted in payment of the outstanding liabilities, which necessitated the filing of the suit.
Pursuant to the issuance of notice, under section 6(2) of the Banking Tribunals Ordinance, 1984 (since repealed), the defendants in the suit, filed reply to the said show-cause notice, thereby raising legal and factual controversies. During the pendency of the suit, Muhammad Zafar Bhatti died, his legal representatives, being respondents Nos.2a to 2f, were impleaded to the suit and consequent thereto an amended plaint was filed. Ultimately, the learned Banking Tribunal, after finding that the appellant-Bank is not entitled to recover a sum of Rs.1,96,681, being the amount paid to SNGPL against the expired guarantee, proceeded to decree the suit regarding the remaining amount of Rs.4,40,319 with costs, jointly and severally against the respondents, vide judgment and decree dated 26-6-1996, hence the present appeal.
3. The learned counsel for the appellant has contended that the learned Banking Tribunal has illegally deducted a sum of Rs.1,96,681, being the amount, allegedly paid to SNGPL, while the amount of bank guarantee was not the subject-matter before the learned trial Court and the same was an independent cause of action, which has no nexus with the transaction highlighted in the suit.
Conversely, the learned counsel for the respondents, while supporting the impugned judgment and decree, has refuted the contention raised by the learned counsel for the appellant and has submitted that the amount of Rs.196,681 has rightly been deducted by the learned Banking Tribunal.
4. Upon the examination of the contents of the plaint, some of which have been reproduced above, we find that the suit for the recovery of Rs.6,37,000 was filed by the appellant-Bank on the basis of a financial accommodation statedly, advanced to respondent No,1 for Rs.15,00,000. The entire transaction, as highlighted in the plaint, revolves around a cash finance facility, which was secured through pledge of stocks and the mortgage of property. It has nowhere been mentioned in the plaint that any amount of bank guarantee was paid by the appellant on behalf of the respondents to any beneficiary or any such sum fell due against the respondents, for the recovery of which the present suit is filed. The learned counsel is right in arguing that the appellant has only confined its claim with regard to the cash finance limit. Even the learned counsel for the respondent could not point out from the plaint or other material on record to show that the claim of the appellant-Bank, as highlighted in the plaint, was also based on the amount of bank guarantee. We have also examined the statement of accounts and find that although a sum of Rs.2,50,000 was debited to the account of respondent No,1 but the said entry was reversed on 21-10-1994. We could not find any entry in the statement of accounts showing that the amount of bank guarantee, allegedly paid to some beneficiary, has been debited to the account of respondent No,
1. Even otherwise, the only statement of account, which is on record, pertains to the cash finance account and the number of account is C.F. N6.1 (Cash Finance 1). The learned counsel for the respondent could not point out either any unauthorized entry in the statement of accounts or any amount of guarantee debited to the account of the respondent. If the contents of the plaint coupled with the documents and the statement of accounts are read together, it leads to an irresistible conclusion that the amount of bank guarantee is not the subject-matter of the suit and it pertains only to the transaction regarding cash finance limit account. It is evident from the record that the claim of the appellant- Bank in the suit was restricted to the cash finance amount of Rs.1.5 million, which was sanctioned in favour of respondent No,1 on mark-up basis and out of the said finance, a sum of Rs.6,37,000 was outstanding against the respondents for the recovery of which the suit, out of which the present appeal has arisen., was filed by the appellant-Bank. The appellant-Bank did not claim any amount of bank guarantee either in the plaint or through any other document and the learned Banking Tribunal, while deducting an amount of Rs.1,96,681, has completely misread the record, which resulted in passing the impugned judgment and decree.
5. In the above perspective, we have examined the impugned judgment and decree and find that the learned Banking Tribunal, while passing the impugned judgment and decree, has illegally and without any legal justification deducted an amount of Rs.1,96,681 from the suit amount, in complete oblivion of the record of the case and law on the subject, inasmuch as the contents of the plaint were not even perused by the learned Banking Tribunal, thus we are of the firm view that the impugned judgment and decree calls for interference by this Court. We are inclined to modify the judgment and decree, so as to include the amount of Rs.1,96,681 in the decree.
6. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 26-6-1996 is modified to the extent that the plaintiff-Bank is now granted a decree for the recovery of Rs.6,37,000, instead of Rs.4,40,319, as passed by the learned Banking Tribunal. There is no order as to costs. It needs no clarification that if out of the decretal amount, some amounts have been paid by the respondents, those amounts shall obviously, be deducted from the modified decretal amount at the time of execution of the decree.