MIAN HAMID FAROOQ, J.---United Bank Limited, through the institution of the present appeal under section 9 of the Banking Tribunals Ordinance, 1984 (hereinafter referred to as Ordinance) has partly called in question judgment and decree dated 1-8-1995, whereby the then Banking Tribunal partially decreed the appellant's suit to the extent of Rs,69,769, whereas the rest of the claim was rejected.
2. Facts, leading to the filing of the present appeal, are that the appellant filed a suit for the recovery of Rs,1,10,662 together with liquidated damages by sale and auction of mortgaged property, against the respondents, before the then Banking Tribunal. It was alleged in the plaint that a demand finance facility of Rs,1,00,000 was allowed in favour of respondent No,1 and apart from the execution of various documents by the respondents property was also mortgaged. It was the case of the appellant that as the respondents failed to adhere to the repayment programme and committed default, therefore, considering the respondents as defaulters, the Bank resorted to the filing of the aforenoted suit. Pursuant to the issuance of show-cause notices, under section 6(2) of the Ordinance, by the then Banking Tribunal, the respondents filed reply to the said show-cause notices thereby taking certain legal objections and also raising the factual controversies. It was, inter alia, pleaded that the appellant-bank has charged the excessive rate of mark-up and is not entitled to the liquidated damages and Excise duty. However, the learned Banking Tribunal, without framing the issues, proceeded to pass a partial decree for the recovery of Rs,69,769, against the respondents and declined to award the amounts of liquidated damages, Excise duty and the amount allegedly deposited by the respondents to the appellant vide judgment and decree dated 1-8-1995, which has partially been challenged by the appellant-Bank against the non-awarding of the aforenoted reliefs.
3. Learned counsel for the appellant has contended that although the appellant-bank was entitled to recover the amounts of liquidated damages and Excise duty. Yet the Banking Tribunal has illegally declined to award the said reliefs to the appellant-bank. He has further contended that the respondents did not deposit the amount of Rs,34,827 which has erroneously been deducted from the suit amount.
Conversely, the learned counsel for the respondents has supported the impugned judgment and decree and has asserted that the learned Banking Tribunal has lawfully deducted the amount, which was not due.
4. From the examination of the record of the case and after hearing the learned counsel for the parties we find that the dispute between the parties is regarding the non-awarding of the three amounts, enumerated below:---
1. Liquidated damages = Rs,19,707
2. Amount of Excise duty = Rs,3,197
3. Amount deposited by the respondents =Rs,34,827
5. So far as the amount of liquidated damages is concerned, it is settled law that the appellant- bank is not entitled to recover the amount of liquidated damages. For the reasons recorded in a judgment reported as Allied Bank of Pakistan Limited, Faisalabad v. Messrs Aisha Garments etc. (2001 M LD 1955), we are constrained to hold that the appellant-bank is not entitled to recover the amount of liquidated damages, thus, the learned Banking Tribunal has tightly deducted the amount of Rs,19,707 from the suit amount. The appellant-bank cannot take exception to this, portion of the Judgment, which is in consonance with law, thus we hereby maintain the said portion of the impugned judgment and decree.
6. As regards the amount of Excise Duty of Rs,3,197 admittedly, the said amount had already been paid by the Bank to the Central Government, as the same was levied by the Central Government under its valid legislative enactment, therefore, the said amount can lawfully he recovered by the appellant-bank. The learned Banking Tribunal has illegally deducted the said amount from the suit amount, thus, we hold that the appellant-bank is entitled to recover the amount of Rs,3,197, as Excise duty, from the respondents.
7. So far as the amount of Rs,34,827, allegedly deposited by the respondents, is concerned, although we have ourselves examined the original statement of accounts, yet we do not find that the respondents have ever deposited the said amount in their account. However, they have deposited various amounts the calculation whereof comes to Rs,40,236 (and not Rs,34,827, as E calculated by the learned Banking Tribunal). We fur' her find from the statement of accounts that the said amount of Rs,40,236 has duly been credited in the account of the respondents, already stood excluded from the balance amount and after deducting the said amount, the suit amount comes to Rs,1,10,662 of course, including the I amount of liquidated damages. In view of the above, we are of the considered view that no benefit could be given to the respondents for the said amount, as the same had already stood accounted for. As noted above, the amount of Rs,40,236 had already been excluded, therefore, the respondents are not entitled to the deduction of the said amount for the second time and the learned Banking Tribunal has wrongly deducted the sum of Rs,34,827 from the suit amount, thus, the impugned judgment and decree calls for interference, as the same do not commensurate with the record of the case and the statement of accounts.
8. After the examination of the impugned judgment we find that the calculation made by the learned Banking Tribunal are contrary to the record of the case. The Banking Tribunal has excluded the three amounts (Rs,19,707 + Rs,3,197 + Rs,34,827), which comes to Rs,57.731 and if the said amount is deducted from the suit amount of Rs,1,10,662 then the remaining amount comes to Rs,52.931 and not Rs,69,769 as erroneously calculated by the learned Banking Tribunal. This shows the non-application of the judicial mind on the part of the learned Banking Tribunal. Actual calculations are as under:-- Suit amount Rs,1,10,662 Amount of liquidated damages Rs,19,707 Balance: Rs,90,955
9. In view of the above discussion, we hold that the appellant-bank is entitled for a decree of Rs,90,955 (as calculated above) and as such the decree of Rs,69,769, passed by the learned Banking Tribunal, calls for interference and modification by this Court and we accordingly modify the decree to this extent.
10. In the above perspective and reasons, the present appeal is partly allowed, the impugned judgment and decree is modified and consequent thereto we hereby pass a decree for the recovery of Rs,90,955 instead of Rs,69,769, favouring the appellant-bank and against the respondents. The parties are left to bear their own costs.
11. Needless to observe that if the respondents had deposited any amounts in liquidation of the decretal amount, after the passing of the aforenoted judgment and decree, those would obviously be deducted from the amount to Rs,90,955.