CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that the appellant availed facility of credit card from the respondent-Bank. The matter regarding payment of liability was settled between the appellant and respondent-Bank vide settlement dated 16-3-2000 with the condition that appellant had to pay Rs.1,00,000 to the respondent-Bank upto 20-3-2000 and another Rs.1,00,000 to the respondent-Bank upto 19-4-2000. In case the appellant failed to discharge his liability in terms of the settlement dated 16-3-2000 then the settlement would be cancelled automatically. The appellant failed to deposit the said amount within the prescribed period. The respondent-Bank being aggrieved filed suit before Banking Court No.II, Lahore for recovery of Rs.272,575 against the appellant. The appellant filed an application for leave to defend the suit. Learned Banking Court dismissed the application for leave to defen: and consequently decreed the suit in favour of the respondent-Bank amounting to Rs.227,146. The appellant being aggrieved filed this appeal.
2. Learned counsel of the appellant submits that the appellant has deposited the amount in terms of the settlement dated 16-3-2000 after the target date which was accepted by the respondent- Bank, therefore, respondent-Bank was not justified to file a suit against the appellant on the well known principle of estopple and waiver.
3. Learned counsel of the respondent submits that respondent has granted benefit to the appellant in the shape of rescheduling/settlement dated 16-3-2000. The appellant has not deposited the amount in terms of letter dated 16-3-2000 within the prescribed period. Therefore, original liability would revive automatically. The appellant has deposited certain amounts after target date which was accepted by the respondent-Bank on the ground that appellant has deposited the said amount against the original liability. He further submits that appellant has deposited the amount in cash which was in good faith credited by the respondent-Bank in the account of the appellant. The appellant sent cheque amounting to Rs.1120 dated 17-3-2001 which was rightly returned by the respondent-bank to the appellant on 20-3-2001 and thereafter suit was filed before the Banking Court on 13-6-2001. He further submits that Banking Court has passed the order after application of judicial mind.
4. Learned counsel of the appellant in rebuttal submitted that the Banking Court has dismissed the application of the appellant without application of judicial mind.
5. Without adverting to the contentions of the learned counsel of the parties we intend to decide the- appeal on the ground that Banking Court has dismissed the application of the appellant for leave to defend the suit and consequently decreed the suit against the appellant without application of mind. It is better and appropriate to reproduce the relevant observation to resolve the controversy between the parties:-- "The defendant has not denied the availing of Visa card and its use but has objected on the statement of account and -claim made in the plaint. Statement of account shows that Rs.317,665.71 outstanding while claim of the plaint is for Rs.227,146.37. The plaintiff is not entitled more than the amount claimed in the plaint. No excess amount has been paid by the defendant. The documents appended with the plaint fully prove the case of the defendant. The defendant has not raised any substantial ground and where liability is admitted, leave to defend the suit cannot be granted. I, therefore, dismissed the application for leave to defend the suit filed by the defendant. Liquidated damages disallowed."
In case the application for leave to defend, reply of the application by the respondent-Bank and impugned order are put in a juxta position then it is crystal clear that the Banking Court has passed the impugned decree without application of mind which is not in consonance with the law laid down by the Honourable Supreme Court in Mollah Ejahar Ali's case PLD 1970 SC 173. Even the public functionaries are bound after addition of section 24-A in the General Clauses Act to decide the controversy between the parties after application of mind with reasons as per law laid down by the Honourable supreme Court in Messrs Airport Support Services's case 1998 SCM R 2268.
As the impugned judgment and decree is not in consonance with the law laid down by the Honourable Supreme Court, therefore, the same is set aside and the appeal is accepted. Meaning thereby the suit filed by the respondent and application of the appellant for leave to defend the suit shall be deemed to be pending before the Banking Court. The parties are directed to appear before Banking Court No.2, Lahore on 15-6-2004 who is directed to decide the case afresh after application of mind in accordance with law as expeditiously as possible.