MIAN HAMID FAROOQ, J.---Through this single judgment, we propose to decide the present appeal (R.F.A. No.299 of 1999) and the connected appeal (R.F.A. No.300 of 1999), as common questions of law and fact are involved in both the appeals and they have arisen out of identical judgments and decrees of even date.
2. Both the appeals, filed by the appellants, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act 1997 (since repealed), (hereinafter referred to as Act 97), proceed against the judgments and decrees dated 4-5-1999, whereby the learned Banking Court, after dismissing appellants' applications for leave to defend the suits, passed separate decrees for the recovery of Rs.53,88,620, against Messrs. Polymer International etc, and for Rs.76,39,144, against Plastic Crystals etc.
3. Briefly stated the facts relevant for the decision of the appeals are that the respondent-Bank filed separate suits for recovery of Rs.53,88,620 against Messrs. Polymer International etc. And of Rs.76,39,144 against Messrs Plastic Crystal etc., before the learned Banking Court, asserting therein, that the appellants established different letters of credit with the respondent-Bank; that in order to secure the facility amount, the appellants executed certain documents and that the appellants were required to pay the amount equivalent to the value of Ley's along with other charges. It was further the case of the respondent-Bank that the appellants did not retire the L/C documents, that on their failure, the respondent 3ank was constrained to transmit the requisite amounts to the beneficiary abroad and created forced payment against documents (PAD) against the appellants.
Failure of the appellants to liquidate their liabilities necessitated the filing of the suits. In response to the summons, the appellants/defendants filed applications for leave to defend the suits, inter alia, pleading that the suits have not been filed by the duly authorized person, that no statement of accounts has been appended with the plaint, that forced payment against documents is illegal and that no documents were executed by the appellants. It was further submitted that although certain amounts were paid by the appellants, as price of the imported bags of the compound, and they also paid the customs duty and delivery order for the delivery of certain bags was issued, yet the said bags were not released by the owner of the bonded wherehouse. According to the appellants the entire consignment is in the custody of the Bank. The learned Judge Banking Court, after hearing the parties, dismissed the applications for leave to defend the suits and consequently passed separate decrees for the recovery of Rs.53,88,620 in the case of Messrs Polymer International etc. and Rs.76,39,144 in the case of Messrs Plastic Crystals etc., vide judgments and decrees both dated 4-5-1999, hence the present two appeals.
4. Learned counsel for the appellants has contended that the goods were pledged with the respondent-Bank and that despite the payment of the customs duty and the price of the portion of the goods, those were not delivered to the appellants. Precise submission of the learned counsel is that unless the respondent-Bank, being a Pawnee, is in a position to return the pledged goods, it is not entitled to recover the suit amount. In this regard he has relied upon A.M. Burq and another v.
Central Exchange Bank Ltd. and others PLD 1966 (W.P.) Lahore 1; Prudential Commercial Bank Ltd. v.
Hydari Ghee Industries Ltd. and 9 others 1999 M LD 1694 and Muslim Commercial Bank Ltd. v. Tayab Sharif 1975 SCM R 393. He has next contended that the letter dated 22-12-1997, which has been made basis for passing the decrees, is disputed and was never written by the appellants, as such, the said document cannot be relied upon. He has further contended that the charge documents are not attested by two witnesses as required under section 17 of Qanun-eShahadat Order, therefore, they have no legal value. Learned counsel for the appellants has additionally contended in R.F.A. No.300 of 1999 that although certain payments were made by the appellants, yet there is no credit entry in the statement of accounts and that the entries in the statement of accounts are unexplained inasmuch as a sum of Rs.18,32,664 has unauthorizedly been debited in the account of the appellants on 5-5-1997. Conversely, the learned counsel for the respondent-Bank, while supporting the impugned judgments and decrees, has submitted that goods were never pledged with the bank and the appellants have failed to show that the respondent-Bank ever possessed the goods.
5. In view of the arguments raised by the learned counsel for the parties, we have examined the available record and do not find any document on record, which would go to show that at any stage the imported goods were pledged with the respondent-Bank. The respondent- Bank neither pleaded in the suit that the goods were pledged with it nor filed any documents along with the A plaint to show that the imported goods were taken over by it or the same were pledged either by the appellants or per force by the respondent-Bank. The entire case of the respondent- Bank was based on applications and agreements for irrevocable documentary credit, letter of credit, invoices and bill of lading coupled with the statement of accounts. Learned counsel for the appellants although vehemently asserted that the goods were pledged yet when asked to show from the available record any document, which could support his contention, the learned counsel, despite his best efforts, could not point out any such document either from the record of the case or from his own record. In view of the available record, we are of the view that the appellants could not establish, even prima facie, that the goods were either taken over by the respondent-Bank or the same were pledged with it either with the consent of the appellants or without their consent.
The appellants could neither establish before the learned Banking Court nor before this Court that the imported goods were, in fact, pledged with the respondent-Bank. The said plea was not sufficient so as to entitle the appellants for the grant of leave to defend the suits. The appellants failed to raise a serious and bona fide dispute, thus, the learned Banking Court was justified in refusing the appellants leave to defend the suits and dismissing their applications. As it has been held above that the goods were not pledged with the Bank, therefore; the judgments relied upon by the learned counsel of the appellants are of no avail to the appellants.
Additionally, we feel that the learned Executing Court is competent to determine all questions arising out between the parties and relating to the execution, discharge or satisfaction of the decree in view of section 47 of the Code of Civil Procedure. So, the questions as to whether the goods were pledged or not and what is the status of goods could even now be decided by the learned Executing Court in case the said issue is raised by the appellants. Needless to observe that if the said issue is raised before the learned Executing Court, it shall decide the same in accordance with law, without being impressed by any of the findings given hereinabove.
6. There is yet another aspect of the case. We have examined, the judgment, passed by the Division Bench of this Court in the appeal (E.F.A. No.209 of 2000) filed by the appellants. It appears from the said judgment that during the execution proceedings, the appellants filed an application under section 18 of the Act 97 with the prayer that the Bank may be directed to sell the pledged goods and satisfy its claim, as the value of the goods is much more than the claim of the Bank. This Court, on 3-6-2002, allowed the appellant's appeal and directed the learned Executing Court to decide the said application. It would be appropriate to reproduce the concluding portion of the judgment which reads as follow:-- "Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 14-4-2000 is set aside with no order as to costs. Resultantly the learned Banking Court is directed to, at the first instance, decide appellant's application, filed under section 1'8 of Act XV of 1997, after calling for the reply from the respondent-Bank, (if not already filed) and after hearing the parties and of course in accordance with law. After the decision of the said application, either way, the learned Banking Court shall of course execute the decree in accordance with law."
It flows from the above that the learned Banking Court was directed by this Court to decide appellants' application regarding the status/position of the goods and the learned Banking Court, in obedience to the terms of the said judgment, must have undertaken the proceedings. In view of the judgment rendered by this Court in the aforenoted appeal, the appellants should have felt contended at least with regard to the goods.
7. Now coming to the, next contention raised by the learned counsel about letter dated 2-12-1997, wherein, the appellants in both the cases, have admitted their liabilities and requested the respondent-Bank to create a demand finance for the adjustment of the outstanding amounts. The said document has been disputed by the learned counsel for the appellants on the plea that the same is forged and manipulated document and it was never addressed or signed by the appellants. It has been held in Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCM R 85 that in certain eventualities the Court was enjoined with' the powers to itself compare the signatures along with other relevant material to effectively' resolve main controversy.
Being guided by the principle laid down in the case of Messrs Waqas Enterprises and others (supra) we have ourselves compared the signatures of both the appellants on the admitted signatures on various documents and with the other material available on record and find that prima facie the signatures appearing on this letter dated 2-,12-1993 are those of the appellants. In our view, subsequently the appellants, in order to wriggle out from their contractual obligations, have frivolously disowned the said letter. A bald assertion of the appellant in this regard would be of no avail to the appellants in view of the other documents on record, which have not been denied by them. This contention of the learned counsel has no substance.
8. Now turning to the next contention regarding non-attestation of documents by two witnesses.
The suits were filed before the learned Banking Court, on 10-12-1998, under the provisions of Banking Companies (Recovery of Loans, Advances, Credits, Finances) Act of 1997. We have examined the documents and find that all the documents were executed in the year 1996 i.e. before the promulgation of Act 1997, which came into force on 31-5-1997. Section 17(2) of the said Act envisages that all banking agreements executed by or on behalf of a Bank shall be duly attested in the manner laid down in Article 17 of the Qanun-e-Shahadat Order, 1984. Section 17(3) of the said Act provides that nothing contained in subsections (1) and (2) shall invalidate any document executed prior to the coming into force of this Act. As noted above, as all the documents were executed in the year 1996 and before the promulgation of Act of 1997, therefore, per force of section 17(3), non-attestation of the documents by two witnesses will not invalidate any documents. Contention of the learned counsel is hereby repelled.
In the above perspective, we are of the view that R.F.A. No.299 of 1999 is devoid of merits.
9.. Now coming to the additional ground, taken in R.F.A. No.300 of 1999, regarding the entries in the statement of accounts, as canvassed by the learned counsel for the appellants. We have examined the statements of accounts and find that the amounts allegedly deposited by the appellants do not find mention in the statement of accounts. Additionally, the learned counsel for the respondent-Bank could not explain as to how the amount of Rs.18,32,644 was debited in the account of the appellants on 5-5-1997. His only reply was that the bank has debited the said amount under the advise of the Head Office, however, there are no supporting documents in this regard on the record. The learned counsel could not explain the details of the said entry even from the available record. In view of the sketchy entries in the statement of accounts, we feel that the learned Banking Court did not take the said aspect into consideration and without determining the actual liability has mechanically passed the decree. In view whereof, while partly accepting the second, appeal (R.F.A. No.300 of 1999), only on the ground of deficient statements of accounts, we are inclined to set aside the impugned judgment and decree, passed against Messrs Plastic Crystals etc. with the directions to the learned Banking Court to pass a fresh decree order after finally determining the liability of the appellants after calling upon the respondent-Bank to explain the entries in the statement of accounts and after taking into account any deposits made by the appellants and not accounted for in the statement of accounts.
10. Upshot of the above discussion is that the Ist appeal (R.F.A. No.299 of 1999) is devoid of merits, hence dismissed.
As regards the connected appeal (R.F.A. No.300 of 1999), as noted above, the same is partly allowed, the impugned judgment and decree in the case of Bolan Bank Limited v. Plastic Crystals etc., is set aside and the case is remanded to the learned Banking Court to ascertain and determine the exact amount of decree, after calling upon the parties and in view of the directions as contained in the preceding para.'No order as to costs.