MIAN HAMID FAROOQ, J.---Appellants/defendants Nos.1 to 3 and 5, through the filing of the present first appeal, have called in question judgment and decree dated 1-2-2001, whereby the Honourable Banking Judge of this Court, passed the decree, for a sum of Rs.68,441,715 along with costs, markup and other charges, against the appellants and respondent No.2, jointly and severally, however, declined to award the amount of liquidated damages amounting to Rs.13,688,343.
2. Precisely stated, the facts of the case are that Habib Bank Limited, on 22-5-2000, filed a suit (C.O.S. No.35 of 2000) for the recovery of Rs.68,441,715, plus liquidated damages of Rs.13,688,343 (total amounting to Rs.82,130,058), against the appellants and respondent No.2, before the Banking Judge of this Court, inter alia, pleading that three financial facilities, i.e. Export Refinance (Part-II), FAPC facility and FAFB facility, were allowed to defendant No.1; defendants secured repayment of the financial facilities by executing different documents, as mentioned in para.6 of the plaint; properties were also mortgaged; defendant No.1 availed the financial facilities, however, they committed default and their failure to liquidate the total liabilities necessitated the filing of the suit.
Appellants filed the application seeking leave to defend the suit (P.L.A. No.92-B of 2000), but defendant No.4 chose not to file leave application, who according to the findings of the learned Judge was served through courier. The appellants, in their leave application, admitted availing of the financial facilities and principal amount of Rs.62.238 Million, however, it was pleaded that certain amounts were repaid by appellant No.1; in Export Re-finance facility (Part-II) mark-up has not been charged on the principal amount at the rate of 8% in accordance with the agreement; statements of accounts are incorrect, the suit is result of political victimization extended to Aurangzeb Mirza bank is not entitled to liquidated damages; the company is viable concern and has the ability to repay the finances provided to it. The learned Judge, after hearing the parties and dealing with the contentions raised by the learned counsel for the parties, dismissed their leave application and proceeded to decree the suit for a sum of Rs.68,441,715 together with costs, mark- up and other charges, against the appellants and respondent No.2, jointly and severally, however, claim of the respondent-Bank for a sum of Rs.13,688,343, in respect of liquidated damages, was disallowed, vide the impugned judgment and decree dated 1-2-2001, hence the present appeal.
3. At the very out set, the learned counsel for the appellants submitted that the project has been taken over by CIRC, therefore, the respondent-Bank has no authority to defend this appeal and since none represents CIRC, thus, notice be issued to CIRC to defend this appeal. Confronted with this, learned counsel for the respondent-Bank categorically stated that he is also representing CIRC and has the instructions to defend the appeal. The learned counsel for the appellants appears to be satisfied.
4. Learned counsel for the appellants has contended that although three financial facilities were availed by defendant No.1 and the defendants executed the documents, yet they did not commit any wilful default in fulfilling their obligations and the suit amount is not due from the defendants.
He has submitted that the statements of accounts are incorrect and mere filing of the statement of accounts does not absolve a financial institution to prove its entries. He has placed reliance on PLD 1996 SC 684 (no judgment at the relevant page) and Messrs United Dairies Farms (Pvt.) Limited and 4 others v. United Bank Limited 2005 CLD 569. He has added that the documents appended with the plaint are not enforceable, markup has illegally been charged and that one date of sale and purchase, mentioned in the mark-up agreements, makes them doubtful and unenforceable.
Conversely, the learned counsel for the respondents, while supporting the impugned judgment, has submitted that the appellants in their leave application have admitted the principal amount of Rs.62.238 Million and outstanding mark-up and the only dispute is regarding the amount of Rs.15 Lac, which according to the appellants has been charged excessively.
5. In view of the arguments of the learned counsel for the parties, we have examined the available record, including the appellant's application seeking leave to defend the suit, and find that although numerous grounds, as noted above, were taken by them in their leave application, however, they only urged, pressed and agitated following three grounds before the learned Banking Judge at the time of arguments:--
(i) That the amount of mark-up has riot been properly calculated by the bank;
(ii) A sum of Rs.10,000 in respect of finance against packing credit and a sum of Rs.75,907 against foreign bills had also been charged as mark-up in excess of the stipulated rate;
(iii) Respondent-Bank is not entitled to claim the amount of Rs.13,688,343 by way of liquidated damages.
It is evident from the bare perusal of the impugned judgment that, besides, the aforesaid three pleas none was urged by the appellants before the Banking Judge. As the other pleas, now agitated by the learned counsel in appeal, were neither raised nor pleaded before the learned Banking Judge, therefore, the inescapable conclusion, which can be drawn, is that the appellants themselves relinquished the said grounds. If these pleas were not pressed obviously those could not have been dealt with by the Banking Judge, therefore, the appellants are precluded from raising the said pleas in appeal. It is settled law that a litigant cannot be allowed to raise the pleas/grounds before the Appellate or Revisional Court, which were not agitated before the lower forum. Reliance can be placed on Anwar Ali and others v. Manzoor Hussain and another 1996 SCM R 1770 and Amir Shah v. Ziarat Gul 1998 SCM R 593.
6. The appellants in their leave application have admitted the availing of three financial facilities and also acknowledged the principal amount of three facilities, i.e. Rs.62.238 Million. Annex.-A to the appellants' leave application also manifests that certain amounts of mark-up have also been admitted as correct by the appellants. In view of the admission, qua the available of financial facilities, the principal amount, a portion of the markup amount, and the execution of documents, it does not lie in the mouth of the appellants to agitate that the suit amount is not due against the appellants. Additionally, the three pleas raised by the appellants were duly dealt with and decided by the learned Judge, out of which one was decided in favour of the appellants and the claim of the respondent-Bank regarding liquidated damages was disallowed. The principal contention of the appellants regarding the charging of mark-up, has been amply and satisfactorily attended to by the learned Judge and the findings whereof are not open to exception. Even otherwise the learned counsel for the appellants was not able to demonstrate that how the findings of the learned Judge are not sustainable in law. It would be appropriate to reproduce para.2 of the judgment, which clearly clinches the matter and reads as under:-- "In response learned counsel for the plaintiff-Bank drew my attention to the financing agreement, the statement of account and also the details of the disputed mark-up submitted by the plaintiff- Bank with its reply to P.L.A. No.92-B of 2000. It is evident from the aforesaid documents that the defendant-Company was only entitled to the concessional rate of 8% for 180 days in accordance with the State Bank Refinance Scheme. The defendant-Company was given full benefit of the aforesaid refinance scheme for the maximum period of 180 days as per terms of the scheme.
Thereafter the contracted rate of 50 Paisas per thousand per day, was charged on the finance availed by the defendant-Company. The contention of the learned counsel for the plaintiff-Bank is well-founded and is backed up by the contents of the refinancing agreement statement of account and the calculation worked out and filed with plaintiffs reply to the P.L.A."
Similarly other contentions regarding the cha rgi rig of mark-up in other two accounts was properly dealt with in the impugned judgment, to which no objection has been raised by the learned counsel while arguing the case. It may be noted that although the learned counsel for the appellants raised number of objections, as noted above, yet did not say a single word about the pleas/questions raised and decided by the learned Judge in the impugned judgment.
7. As noted above, the appellants failed to take the plea qua inaccuracy of statements of accounts before the learned Judge and, thus, they are precluded from raising the said plea D before this Court. However, in the interest of justice we have examined the statements of accounts and find that they do not suffer from any legal infirmity. Even otherwise the learned counsel could not point out any illegality in the statements of accounts except to submit that it is not discernible from the available statements of accounts that from where the balances were carried/forwarded.
8. In the above perspective, we have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case, does not suffer from any legal error/defect, thus, we see no legal justification to interfere in the impugned judgment. Additionally, the learned counsel could not point out any grave legal infirmity in the impugned judgment. There is no legal justification to reverse the impugned judgment and decree, which is hereby maintained.
Upshot of the above discussion is that the present appeal is devoid of merits, hence, the same stands dismissed, leaving the parties to bear their own costs.