' Appellants/judgment-debtors, through the filing of the present appeal, under section 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act of 1997, have called in question judgment and decree dated 23-5-2001, whereby the learned Judge Banking Court, after the dismissal of appellants' application for leave to defend the suit, passed a decree for the recovery of Rs.5,524,355.94 in favour of the respondent-Bank and against the defendants jointly and severally.
2. Facts leading to the filing of the present appeal are that the respondent-Bank filed a suit for the recovery of Rs. 5,524,355.94, against the appellants, respondents Nos.2 and 3, alleging therein that certain financial facilities were granted in favour of the appellant No,1, which was sued as a principal debtor, while the appellants Nos. 2 to 5 and respondents Nos.2 and 3 were arrayed as defendants in the capacity of guarantors. According to the respondent-Bank, all the defendants executed, signed and delivered certain documents annexed with the plaint, thereby unequivocally acknowledging the factum of the availing of the financial facilities and their liability to repay the outstanding amounts. It is the case of the respondent-Bank that the defendant's failure to liquidate their liabilities necessitated the filing of the suit for recovery against them. Pursuant to the presentation of the plaint, learned Judge Banking Court issued summons to all the defendants, as provided under the law, and consequent thereto the appellants filed an application under section 10 of Ordinance XV of 1997 for the grant of leave to defend the suit, while respondents Nos.2 and 3 abstained from the proceedings and thus, they were proceeded ex parte. It was admitted by the appellants, in their leave application, that the appellant No,1 paid a sum of Rs.10 Million in lumpsum to the respondent-Bank and thereupon certain settlement was arrived at between the parties inasmuch as certain cheques were issued by the appellants' Company, but respondent-Bank did not adhere to its commitment, therefore, the compromise fizzled out and thus the defendants are not liable to pay any amount. Learned Banking Court, after hearing the parties, found that no crucial and plausible ground has been raised in the application for leave to defend the suit, filed by the appellants, therefore, the said application was dismissed and consequent therein suit for recovery of Rs.5,524,355.94 was decreed in favour of the respondent-Bank against all the defendants, jointly and severally, with costs and mark-up vide judgment and decree, dated 23-5- 2001, hence the present appeal.
3. Learned counsel for the appellants has contended that the learned Banking Court has passed the decree without taking into consideration the contents of the leave application, filed by the appellants, and therefore, the impugned judgment and decree deserve to be set aside.
4. We have examined the impugned judgment, the record of the case and find that the principal stance taken by the appellants, in their leave application, has duly been taken care of by the learned Banking Court while deciding their leave application. Upon the perusal of the appellant's leave application, we find that in para.3 of the said application the appellants have stated that the suit is not maintainable, as the defendant-Company paid a sum of Rs.10 Million in lumpsum and thereupon certain agreement was arrived at. It would be advantageous to reproduce para.3 of the application, which reads as follows:-- "That the suit is not maintainable in its present form and on the basis of averments made in the plaint no decree can be passed against the applicant/defendants. The defendant-company paid a sum of Rs.10 million in lumpsum to the plaintiff-Banking Company. It was agreed upon between the parties that the defendants will pay only Rs.3,000,000 (three million only) in total to liquidate the total liabilities due against the defendants for which six cheques each of Rs.5,00,000 (Rs. Five hundred thousand only) commencing from September, 2000 to February, 2001 were given to the plaintiff-Banking Company but the Banking Company did not adhere to its commitments made thereto hence the payment of two cheques for the months of September and October, 2000 were stopped and the remaining four cheques for the months of November and December, 2000 and January and February 2001 are still with the plaintiff-Banking Company. This suit is premature and is liable to be dismissed."
4. It flows from the above that the appellants, as a matter of fact, have admitted the availing of the loan facilities, execution of documents and their signatures on all the documents, on the basis of which respondent-Bank filed the suit for recovery against all the defendants. Their only defence is that after the alleged payment of Rs.10 million, only 3 million rupees were payable by the appellants and thus three cheques, each amounting to Rs.5 lacs, were delivered to the respondent-Bank, but as the Bank did not adhere to its commitments therefore, the payment of two cheques was stopped, while four cheques are still in possession of the respondent-Bank. Admittedly, the appellants, alongwith the leave application, did not produce the alleged settlement arrived at between the parties inasmuch even no letter from the respondent-Bank has been attached, which could be the prima facie proof of the fact that certain arrangement was arrived at. Even if it be presumed that the parties agreed to some settlement, as alleged, it has been admitted by the appellants that they did not allow these cheques to be encashed and the payment was got stopped. It is sufficient to show that the appellants themselves committed default and even did not pay the alleged agreed amount, therefore, to our mind they cannot complain that the terms of the compromise and the agreement were not adhered to by the respondent-Bank.
5. Additionally, although routine types of objections, having no substance, were taken by the appellants in their leave application, yet the fact remains that the appellants did not deny the execution of all the documents annexed with the plaint. Even during arguments learned counsel admitted the execution of all the documents including agreement for financing, demand promissory note, letter of continuity and letter of guarantee etc. Even the entries in the statement of account have not been disputed. Appellant's counsel could not point out any legal infirmity in the impugned judgment.
6. We have examined the impugned judgment and find that the same is not only in accordance with the record of the case, but also in consonance with the law on the subject, apt to the facts and circumstances of the case and do not call for any interference by this Court, thus, the same is maintained.
7. In view of the above, the present appeal is devoid of any merits, thus, the same is dismissed in limine.