' CH. IJAZ AHMAD, J.---This R.F.A. Is directed against the judgment and decree dated 13-8-1999 passed by the learned judge Banking Court, Lahore, whereby the suit of the respondent- Bank/plaintiff has been decreed.
2. Brief facts out of which the present R.F.A. Arises,are that the appellants secured financial facility from the respondent-Bank and an agreement was also executed between the appellants and the respondent-Bank. The appellants failed to repay the outstanding of the respondent-Bank. The respondent-Bank being aggrieved after completing the legal formalities, filed a suit for the recovery of Rs.31,266,661 being the principal amount and mark-up up to 31-3-1995 and Rs.6,25,332 being the amount of liquidated damages at the rate of 20% till the realization of liability in full. The said amount to be recovered by the sale-auction of the property mortgaged with the respondent- Bank/plaintiff before the learned Banking Court on 30-4-1995 under the provisions of Banking Tribunal Ordinance, 1984. The learned Banking Tribunal sent notice to the appellants under section 6(2) of the aforesaid Ordinance on 3-5-1995. The appellants submitted reply to the notice. The learned Banking Tribunal decreed the suit vide judgment and decree dated 31-3-1996 for the recovery of Rs.17,16,261.58 with cost which would be executed by the sale of mortgaged property and by any other mode if the decree would remain unsatisfied beyond the stipulated period. The petitioners being aggrieved filed Writ Petition No,9997 of 1998 before this Court against the aforesaid judgment and decree. The writ petition was accepted vide order dated 25-11-1998 and the impugned judgment of the learned Banking Tribunal was set aside in view of the law laid down by the Full Bench of this Court reported as Messrs Chenab Limited Product (Pvt.) Ltd. And others v.
Banking Tribunal Lahore and others PLD 1996 Lahore 672. The learned Banking Tribunal decreed the suit after remand vide judgment and decree 13-8-1999. The appellants being aggrieved filed this appeal.
3. Learned counsel for the appellants submits that the learned Banking Court decided the case on surmises and conjectures without adverting to the contents of the reply of the appellants filed before the learned Banking Tribunal in response to the notice. He further submits that the impugned judgment itself reveals that the same was passed by the learned Banking Tribunal without applying its independent mind and without adverting to the objections raised by the appellants in the reply of the show-cause notice. He further submits that the respondent Bank/plaintiff attached following documents with the documents with the plaints:--
(1) Agreement for financing for short/ medium/ long term on mark-up basis executed between the parties on 2-1-1993;
(2) Memorandum of deposit of title deed dated 23-12-1992;
(3) Affidavit of Mst. Nighat Javed appellant No,2;
(4) Sale-deed of Bungalow No,15;
(5) Guarantee of Mst. Nighat Javed appellant No,2 dated 2-1-1993; and
(6) Letter of Hypothecation dated 2-1-1993.
' Therefore, the impugned judgment and decree to award the mark-up beyond one year prior to the execution of the agreement is not sustainable in the eye of law. The respondent-Bank did not attach any agreement alongwith the plaint to show that the appellants had availed any financial facility from the respondent-Bank before the agreement dated 2-1-1993 executed between the appellants and the respondent-Bank. He further submits that the respondent-Bank initially filed the uncertified copy of the statement of account alongwith plaint. The certified copy of the statement of account was filed by the respondent-Bank after the objection raised by the appellants but this fact was not considered by the learned Banking Court in its true perspective. He further urged that the suit was filed by incompetent person, therefore, the impugned judgment and decree is not sustainable in the eye of law. He further submits that the learned Banking Court erred in law to award mark-up over mark-up. He further submits that it is the duty and obligation of the respondent-Bank to prove the contents of the plaintiff but the respondent-Bank failed to discharge its onus, therefore, the learned Banking Tribunal erred in law to decree the suit in violation of the law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments: --
(1) Agreement for financing for short/medium/long term on mark-up basis executed between the parties on 2-1-1992;
(2) Muhammad Iqbal Fasih v. National Bank of Pakistan, Lahore PLD 1980 Lahore 38.
(3) Agricultural Development Bank of Pakistan v. Jasarat Husain 2002 CLD 93.
(4) Haji Muhammad Mirza v. Muslim Commercial Bank Limited through attorney Manager 2002 CLD 426; and
(5) Friendship Textile Mills (Pvt.) Ltd. And others v. Government of Balochistan through Secretary, Local Government and Rural Development Quetta and others 1998 CLC 1767.
4. Learned counsel for the respondent-Bank submits that the appellants availed financial facility and executed documents which were attached by the respondent-Bank with the plaint. The appellants did not controvert the liabilities in the reply of the show-cause notice issued by the learned Banking Court. He further submits that the learned Banking Tribunal after proper appreciation of evidence on record, decreed the suit against the appellants. Learned counsel for the appellants failed to point out any illegality or irregularity committed by the learned Banking Court at the time of deciding the suit of the respondent-Bank against the appellants. He further urges that the respondent during the pendency of the suit filed an application alongwith the documents which was also considered by the Court below and found that the documents did not support the cause of the appellants and in fact supported the contents of the plaint.
5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record ourselves.
6. The first objection of learned counsel for the appellants that the suit was filed by the incompetent person has no force in view of the law laid down by this Court in Muhammad Ramzan v. Citibank N. A. 2001 CLC 158 and Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671.
7. It is better and appropriate to reproduce the relevant paragraphs of the plaint, to resolve the controversy between the parties:-- Plaint Para. 3 ' That the plaintiff-Bank at the request of defendant No,1 through defendant No,2 allowed a packing Finance limit of Rs.1 million on mark-up basis on 4-5-1991 to encourage the export per policy of Government of Pakistan. The said limit was subsequently renewed/enhanced to Rs.1.900 million on 12-11-1992 the currency of that limit was to expire on 30-6-1993 and the detail of final adjustment was 30-11-1993. The break-up of the said packing Finance was as follows:--
(i) Pre-shipment Rs.1.00 million) Mark-up of 8% per annum subject to the restriction by State Bank of Pakistan.(ii) Post-shipment Rs.0.900 million)
Para. 5 ' That the security provided by the defendants to the plaintiff Bank for the above mentioned finance is as follows:--
(a) Equitable mortgage of Bungalow No,15 on Plot No,38/A situated at Zahoor Afridi Road, Lahore Cantt. The said bungalow is owned by defendant No,3 and is worth Rs.30 lacs with all present and future construction within the specified area owned by the mortgagor and is bounded as under:-- North by: Mosque side 58'. 8"
South by: Approach Road 30' width side 58'-8".
East by: Zahoor Afridi Road side 89'
West by: Plot No.38/A, side 89'.
(b) Memorandum of deposit title deed of the bungalow mentioned in (a) above was executed by the Bank and defendant No,3.
(c) General Irrevocable Power of Attorney, by the defendant No,3 the owner of the said Bungalow was executed and registered in favour of plaintiff-Bank.
(d) Personal guarantee of defendant No,3 owner of bungalow mentioned in (a) personally guaranteeing the repayment of Finance provided by the plaintiff Bank to the defendant was executed in favour of the plaintiff-Bank.
(e) Demand Promissory Note was executed by the defendant in favour of the plaintiff-Bank.
(f) Hypothecation of stock of appropriate value belonging to defendant and hypothecation letter (IB-25) was executed in favour of the plaintiff-Bank.
(g) Lien of the plaintiff-Bank on export L/C' confirmed order and export bills.
(h) Trust receipt (IB-27) signed by defendant No,2 on behalf of defendant No,1 The aforesaid contents of the plaint were not denied by the appellants in reply to the show-cause notice which is at page 125 of the file of the Court below.
8. The appellants filed an application under section 151, C.P.C. Before the learned Banking Court alongwith documents consisting of Annexures R/ 1 to R/6. The said documents did not support the cause of the appellants. In fact the said documents supported the cause of the respondent-Bank.
9. It is pertinent to mention here that the appellants did not raise aforesaid pleas which was urged before us in the contents of reply to the show-cause notice before the learned Banking Court. It is settled principle of law that a party cannot be permitted to raise new ground of attack or defence by departing from its previous pleas. In arriving to this conclusion, we are fortified by the law laid down by the Honourable Supreme Court in Murad Begum's case PLD 1974 SC 322. As the appellants failed to raise any serious and bona fide dispute before the Court below, therefore, the learned Banking Court was justified to refuse to grant leave to defend the suit to the appellants and therefore, the learned Banking Court was justified to decree the suit against the appellants.
10. Admittedly the account was opened by the appellants and the agreement was also executed between the appellants and the respondent-Bank. The learned Banking Court after appreciation of the documentary evidence, has given finding of fact against the appellants.
11. It has been correctly pointed out by the learned counsel of the respondent-Bank that the loan facility stands proved as due from the appellants to the respondent-Bank and for the execution of all the documents which have been annexed with the plaint or placed on record otherwise has not been denied by the appellants. The appellants had admitted the availing of the loan facility but has only badly -disputed the correctness of statement of account. In the light of the documents filed by the respondent-Bank which have in no manner been controverted by any documentary evidence or even by denial of execution of the said documents by the respondent-Bank or of the affixation of signatures thereon, the bare assertion of incorrectness of the statement of accounts can in no way be given any weight or made the basis for granting leave to defend the suit. There is otherwise also a presumption of correctness attached of course rebuttable to statement of accounts certified under the Bankers' Books Evidence Act, 1891 which presumption has in no manner been rebutted by the appellants. It is also settled principle of law that admitted fact cannot be proved as appellants did not controvert the para No,3 and para No,4 of the plaint in reply of notice, therefore, the appellants are estopped to wriggle out from this position on the well- known principle of estoppel and waiver. It is pertinent to mention here that the learned Banking Court did not award the liquidated damages to the respondent-Bank. The judgment relied upon by the learned counsel of the appellants are distinguished on facts and law.
' In view of what has been discussed above, we do not find any merit in the appeal and the same is dismissed.