IJAZ AHMAD CHAUDHRY, J.---This regular first appeal has been filed by the appellants under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 against the judgment and decree dated 17-10-2000 passed by the learned Judge, Banking Court, Multan, whereby while rejecting the application for leave to defend the suit filed by the appellants along with respondents Nos.8 to 10 the suit was decreed in favour of respondent No.1/plaintiff for the recovery of Rs.4,200,242. However, respondents Nos.2 to 7 were proceeded against ex parte by the learned trial Court.
2. The brief facts of the case are that respondent No. 1 /plaintiff filed a suit before the learned Judge Banking Court No.1, Multan, for the recovery of Rs.4,200,242 alleging that the appellant No.1 had approached the plaintiff-Corporation through appellant No.2 with the request for lease of machinery duly described in the plaint. The offer was accepted by the plaintiff-Corporation and Equipment Lease Agreements were executed on 24-3-1994 and 24-4-1994 between the parties.
The price of the machinery was Rs.20,00,000 in view of Seller's Invoices dated 24-3-1994 and 24-4- 1994. The schedule for repayment was settled. The appellants along with other respondents executed Demand Promissory Notes dated 24-3-1994 and 24-4-1994 for the amounts of Rs.1,377,748 and Rs.1,356,756 respectively. Personal guarantees were executed by appellants Nos.2 , 3 and respondent No.8 along with trust receipts dated 24-3-1994 and 24-4-1994. Respondents Nos.2 to 7 executed collateral mortgage deeds dated 24-3-1994 and 18-5-1994 and memorandum of deposit of title deed was also executed by the said respondents in order to create equitable mortgage. The appellants along with other respondents allegedly failed to liquidate the liability as per agreements and as such an amount of Rs.4,200,242 was outstanding, hence the suit was instituted.
3. The appellants along with respondents Nos.8 to 10 contested the suit while the remaining respondents were proceeded against ex parte. They also moved an application for leave to defend the suit on 30-3-1998, which was contested by respondent No.1, plaintiff. The said application has been rejected and the suit filed by respondent No.1 decreed by the learned trial Court vide judgment and decree dated 17-10-2000. Hence this appeal.
4. Learned counsel for the appellants contends that the actual beneficiaries were respondents Nos.2 to 7 and they were responsible for the payment of the amount, but without deciding this crucial issue the learned trial Court has passed the decree in a hasty manner. It is further contended that the customer has been defined in section 2(d) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 according to which respondents Nos.2 to 7 were the actual beneficiaries of the finance provided by respondent No.1 and the decree should be modified to be recoverable from respondents Nos.2 to 7. It is lastly contended that sufficient documentary evidence was not produced to prove the liability of the appellants and the impugned judgment and decree is a nullity in the eye of law which is liable to be set aside.
5. On the other hand learned counsel for the respondent No. 1 /plaintiff has resisted the appeal and supported the impugned judgment and decree.
6. We have heard the learned counsel for the parties and also gone through the impugned judgment and decree as well as the documents attached with the appeal. The appellants along with respondents Nos.8 to 10 admittedly filed an application for leave to defend the suit before the learned trial Court in which they have not taken any plea, which has been raised through this appeal and today during the arguments. Rather in Para. No.1 of the said application it has been admitted that the appellants Nos.1 and 2 obtained lease finance facility in respect of machinery through lease agreements detailed in para.5 of the plaint dated 24-3-1994 and 24-4-1994 against the securities detailed in the plaint while appellants Nos.3 and 4 along with respondents Nos,8 to 10 were impleaded in the capacity of Directors of Messrs Sunrise Industries (Pvt.) Limited whereas respondents Nos.2 to 7 had rendered their properties in the shape of mortgage etc. as security to the facility extended by the respondent No. 1.
7. It has been admitted by the appellants themselves in their application for leave to defend that they had obtained lease finance facility from respondent No.1 along with the execution of lease agreements dated 24-3-1994 and 24-4- 1994. Also admitted the paragraph regarding securities detailed in the plaint and also that respondents Nos.3 to 8 had rendered their properties in the shape of mortgage etc. as security. It was also admitted that the above said suit had been filed for the recovery of Rs.4,200,242 against the appellants along with the other respondents. However, in Para.3 of the application the appellants alleged that the controversy between the parties was likely to be resolved through some agreement to be executed in the last week of March, 1998. Para. 3 is reproduced here for ready reference:-- "3. That apart from controversy, assertions and averments of the plaint on legal as well as factual score, the issue has since been settled between the answering defendants/applicants, other defendants and the plaintiff through an agreement to be executed between the parties in the last week of this month and in the light of that executed agreement, the controversy between the parties seems to be resolved, hence the application for the grant of leave to defend the suit for the time being is presented merely in compliance to the direction of the Court and law within the stipulated period of 21 days as the notices were issued from the office of this Court and received by the answering defendants/appellants on 13th of March, 1998 and proclamation of service through daily "Nawa-e-Waqt dated 19-3-1998."
8. None of the arguments advanced today and the grounds taken in the appeal has been mentioned in the application for leave to defend the suit. This question has been raised for the first time in this Court that only respondents Nos.2 to 7 being the actual beneficiaries were liable to pay the decretal amount. The learned trial Court has rightly refused leave to defend the suit on valid reasons while discarding the agreement dated 14-6-1998 which was executed between the appellants and other respondents but respondent No.1/plaintiff No.1 being not party to the same was not bound by it to accept the liabilities determined by the appellants and respondents Nos.2 to
10. After the admission of the claim of respondent No.1 by the appellants we are not convinced with the arguments advanced by the learned counsel for the appellants for setting aside of the impugned judgment and decree or for modifying the same to the extent of respondents Nos.2 to 7 alone as no such claim was raised in the application for leave to defend the suit. The arguments of the learned counsel for the appellants are misplaced and cannot be considered at this stage.
9. For the foregoing reasons we find no merit in this appeal which is dismissed, however, with no order as to costs.