MIAN HAMID FAROOQ, J.---Appellants/defendants Nos.1 to 3, through the filing of the present appeal, have called in question judgment and decree dated 2-3-1999, whereby the learned Judge Banking Court, after dismissing their application for leave to defend the suit, proceeded to decree respondent No. l's suit against all the defendants, with costs etc., however, declined to award the amount of liquidated damages.
2. Precisely stated the facts of the case are that the respondent No.1/plaintiff filed the suit for recovery of Rs.20,30,740 along with costs and 20% liquidated damages, against the appellants and respondents Nos.2 and 3/ defendants Nos.4 and 5, before the then Banking Court, inter alia pleading that a finance facility of Rs.13,31,100, for the purchase of 4 vehicles (Mazda Vans) under Prime Minister's Transport Scheme, was availed by the defendant No.1 on the application of defendants Nos. 1 to 3 and the respondents Nos.2 and 3 stood as guarantors. According to the plaintiff all the appellants executed relevant documents, however, their failure to liquidate the outstanding liabilities necessitated the filing of the suit. Appellants and respondents Nos.2 and 3 filed separate applications seeking leave to defend the suit, however, the learned Banking Court after finding. that the defendants failed to establish plausible defence, dismissed their leave applications and proceeded to decree respondent-Bank's suit together with costs, mark-up and incidental charges, however, declined to award the amount of liquidated damages, vide impugned judgment and decree dated 2-3-1999, hence the present appeal.
3. Respondent-Bank was intimated by the Deputy Registrar (Judicial) of this Court about the fixation of the case today (Report to this effect is on record), but none has entered appearance to defend this appeal, hence the respondent-Bank is proceeded ex parte. Similarly none has entered appearance to represent respondent No.3, who he is also proceeded ex part.
4. Learned counsel for the appellants while referring to certain documents, (which have been placed on record of the appeal) has submitted that the possession of two vehicles was not delivered to the appellants and upon the complaint filed by them, it was admitted by Shaheen Motors (dealers/ distributors), that the balance amount was not paid, they have diverted the vehicles towards another customer and the possession of the said two vehicles was not delivered to the appellants. The reamed counsel for respondent No.2 has submitted that he has purchased one vehicle in auction, held by the bank, and has made total payment.
5. In view of the arguments of the learned counsel for the parties, we have examined the available record and find that the appellants pleaded in their leave application that two Mazda Vans were handed over to them by the dealers, but the possession of other two vans was not delivered to the appellants. However, the appellants failed to place on record relevant documents, before the learned Banking Court, together with their leave application. which they have now annexed with the appeal in support of their principal contention. The appellants should have submitted all the documents along with their leave application and brought to the notice of the learned Banking Judge, at the time of deciding the lis. that the possession of two vehicles was not delivered/handed over to them. Although the appellants were slack and negligent by not producing the relevant documents at the appropriate stage yet only on that count they could not be penalized and saddled with the liability, more importantly when non-delivery of two vehicles is prima facie proved.
6. The learned Banking Court has dealt with the plea of the appellants qua non-delivery of two vehicles and held as under- The defendants/applicants have laid stress on the argument that 4 vehicles were not delivered to them which is clear non-performance of part of contract by the plaintiff bank. But argument is a mere farce, for the reason that as per facility letter, dated 18-5-1993, the plaintiff bank was required to disburse the amount of finance by crediting it to D.O. in the name of dealer and he had to supply the vehicles to defendants/applicants. It is not the case of defendants that the amount was not supplied. Mere non-mention of number of fourth vehicle does not prove non-supply of vehicles."
We are of the view that the learned Banking Court was not justified in law in rendering those findings. On the one hand it has been held that the amount of finance was credited in the name of the dealer and he had to supply the vehicles to the appellants and on the other hand dealer/distributor was not impleaded in the suit. It may be noted that the appellants specifically took the objection that the dealer has not been impleaded in the suit. The appellants have been non-suited and the suit was decreed against them without impleading the dealer in the suit. It is true that the documents now placed on record by the appellants, were not produced before the learned Banking Court at the time of the passing of the impugned judgment, however, it is equally true that the learned Banking Court passed the impugned decree without even dealing with objection of the appellants qua the non-impleading of the dealer, upon whom the total responsibility has been plan the learned Banking Court itself for the supply of the vehicles. The appellants should have placed these documents before the learned Banking Court, however, due to said lapse on the of the appellants, it is not in the interest of justice that should be burdened with the liability of the cost of vehicles, possession whereof was not prima fade delivered to them.
In the above perspective, we have examined the impugned judgment and find that the appellant's leave application was decided by the learned Banking Court in complete oblivion of the real aspect of the case, thus we feel C that it would be in the interest of justice. if the learned Banking Court is required to re-decide appellant's application for leave to defend the suit and consequently the suit. In view whereof, we are inclined to set aside the impugned judgment and decree.
7. In the above perspective. the appeal stands decided In the following terms:--
(i) Instant appeal is allowed and the impugned judgment and decree is set aside qua the appellants.
(ii) Appellant's application for leave to defend the suit and Bank's suit shall be deemed to be pending before the learned Banking Court.
(iii) Appellants shall file all the relevant documents, including the one placed on record of this case, before the learned Banking Court.
(iv) Banking Court shall decide appellant's leave application and the suit after hearing the parties and of course in accordance with law.
(v) No order as to costs.
(vi) Parties shall appear on 5-4-2005 before the Administrative Judge Banking Court, who may hear the case himself or entrust the same to another Banking Court according to its own administrative arrangements.