SYED SAKHI HUSSAIN BOKHARI, J.---The respondent-Bank filed a suit against the appellants/defendants for recovery of a sum of Rs. 12,30,024.92. It was alleged in the plaint that a running finance facility had been provided to appellant No.1, namely, Amtul Rehman Industries (Pvt.) Limited, which had been availed by the said appellant, but had not been repaid in full. The appellants Nos.2 and 3 were impleaded as defendants in their capacity as guarantors for repayment of the debts of the appellant-Company. The appellants filed an application seeking leave to appear and defend but the same was dismissed and as a consequence, the impugned judgment and decree was passed against the appellants. However, while passing the decree, the learned Banking Court held that an amount of Rs.2,65,000, charged by way of cushion period mark-up, was not recoverable by the respondent-Bank and suit of the Bank was decreed for a sum of Rs.9,44,469.92. Hence this appeal.
2. It is contended on behalf of appellants that excessive mark-up has been charged by the respondent-Bank which is beyond the amount agreed by the appellant-Company in the financing agreement dated 13-12-1992. It is also the case of the appellants that the Bank has claimed a sum of Rs.4,92,066 as other charges although there was no legal or contract u, basis for making such claim.
3. We have considered the arguments of learned counsel for the parties and have also gone through the record of the case. It is not disputed by the appellants that they had executed the financing agreement dated 13-12-1992, whereby a running finance facility of Rs.26,00,000 was provided by the respondent-Bank to the appellant-Company. It was, however, contended by learned counsel for the appellants that the facility was not availed by the appellant-Company to the full extent of the limit. In this behalf, he has drawn the attention of the Court to the statement of account (page 46) which does show that on 16-12-1992 the amount utilized by the appellant- Company was shown as Rs.2,351,114. Thereafter, the appellant-Company made payments towards the repayment of the finance. However, according to the appellants, the respondent-Bank made unauthorized debits in the account of the appellant-Company in order to inflate its claim.
4. The financing agreement (page 84) between the appellant-Company and the respondent-Bank shows that finance of Rs.2,600,000 was agreed to be provided by the respondent-Bank to the appellant-Company which amount, together with mark-up, was to be repaid by 31-10-1993. The marked up amount specified in the aforesaid agreement was Rs.3,317,600. It is the case of the appellants that the respondent-Bank was, at the most, entitled to receive I he said sum of Rs.3,317,600 from the appellant-Company. From the statement of account placed on record by appellants, learned counsel for the appellants has demonstrated that now a sum of Rs.4,39,628, is actually due.
5. On the aforesaid basis, it is contended that an amount of Rs.4,39,628 only would be outstanding and payable by the appellants.
6. Learned counsel for the appellants has expressly contended that the mark-up claimable by the respondent-Bank was reflected in the buy-back price of Rs.3,317,600. The markup amount was fixed in the agreement which can be determined by calculating the difference between the finance provided and the marked up price.
7. Learned counsel for the appellants argued that as only Rs.2.351,114 had been availed by the appellants, the mark-up amount would also stand reduced. This contention is well founded because the mark-up would stand reduced proportionately. According to the calculations made by learned counsel for the appellants, the respondent-Bank had charged a sum of Rs.1,577,044 as mark-up. This amount is more than twice the mark-up of Rs.7,17,044 deducible from the finance agreement dated 13-12-1992. Learned counsel for the appellants has submitted that according to their calculation only Rs.4,39,628 were outstanding against the appellants, therefore, impugned judgment and decree is liable to be set aside. However, learned counsel for the respondent-Bank has submitted that amount claimed by respondent-Bank is in accordance with statement of account. We have noticed that there are discrepancies in the statement of account brought on record. As such for ascertainment of account it was necessary for the learned trial Court to grant leave to defend to the appellants as it was not possible for the Court to determine the actual amount due without recording evidence. So keeping in view the contents of plaint, the application for leave to defend and reply thereto, we are of the view that substantial question of law and facts have been raised in respect of which evidence need to be recorded.
8. For what has been discussed above we are of the considered opinion that it is a fit case for grant of leave to the appellants. So this appeal is accepted, impugned judgment is set aside and application for leave to defend the case is allowed and the case is remanded to the learned trial Court for decision afresh. As stated earlier according to the case of appellants Rs.4,39,628 are due against them, therefore, their application for leave to defend is allowed to the extent of 7,90,396.92.
However, as regards remaining amount (Rs.4,39,628) interim decree is passed in favour of respondent-Bank in respect of said amount (Rs.4,39,628). No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.