Instant first appeal, filed by the appellants, proceeds against judgment and decree dated 29-10- 2001, whereby the learned Banking Court, after dismissing appellant's application for leave to defend the suit, passed a decree for recovery of Rs.33,62,116, with costs and mark-up, against the appellants.
2. Precisely stated the facts of the case are that the respondent-Bank filed the suit for recovery of Rs.33,62,116, against the appellants and one Muhammad Afzal, before the learned Judge Banking Court, inter alia, pleading that a cash finance (hypothecation) limit of Rs.2 Million was sanctioned in favour of defendant No.1; the defendants furnished the securities, they executed the relevant documents and availed the financial facility, however, their failure to liquidate the outstanding liability necessitated the filing of the suit. The appellants filed the applications for leave to defend the suit, averring therein that the agreement dated 14-7-1997 is prior to the date of sanction advice, demand promissory note amounting to Rs.26,21,000 and acknowledgement dated 16-5-2001 are fake documents and that the statement of accounts is not certified. The learned Judge Banking Court, after hearing the parties, found that no substantial questions of law and fact have been raised by the appellants and dismissed their application and consequently proceeded to pass the decree for recovery of Rs.33,62,116 along with costs and mark-up, vide impugned judgment and decree dated 29-10-2001, hence the present appeal.
3. Record of the learned Banking Court was summoned and has been examined by us.
4. Learned counsel for the appellants has contended that the suit was filed on 24-5-2001, when Act XV of 1997 was applicable, therefore, the respondent-Bank is not entitled to recover an amount of Rs.2,26,000 for the cushion period of 210 days. On Court's query, the learned counsel acknowledged that the appellants are satisfied with the rest of the terms of the decree and the only grievance of the appellants is regarding the award of the amount of cushion period.
5. In view of the solitary contention raised by the learned counsel, we have examined the record, perused the impugned judgment and decree and are constrained to observe that the contention raised by the learned counsel is completely misdirected and shows complete ignorance qua the available record, inasmuch as the learned counsel has not examined the contents of the impugned judgment and decree. It is evident from the available record that although the respondent-Bank claimed a sum of Rs.2,26,000, as the amount for the cushion period, yet examination of the impugned judgment and decree shows that the said amount was not awarded to the respondent-Bank. The learned Banking Court has specifically observed that the plaintiff is not entitled to claim mark -up for cushion period. It would be appropriate to reproduce certain portions of the judgment and decree, which reads as follow:.
The plaintiff has claimed the mark-up or the cushion period of 210 days and it is not entitled for an amount of Rs.2,26,000 as is claimed in the plaint." (Underlining is ours.) accordingly the suit is decreed in favour of the plaintiff and against the defendants for the recovery of Rs.33,62,116 jointly and severally along with costs and mark-up till realization of the decretal amount.
Liquidated damages are disallowed......
Decree Sheet.
"The suit is decreed in favour of the plaintiff, and against the defendants jointly and severally for the recovery of Rs.33,62,116 along with costs and mark-up till realizations of decretal amount.
Liquidated damages are disallowed."
It flows from the above that the learned Judge Banking Court did not award the amount of cushion period, therefore, the only plea raised by the learned counsel is without any substance.
6. We have also perused the statement of accounts, filed by the respondent-Bank, along with the plaint, before the learned Banking Court and are unable to find that the respondent-Bank has added the amount of cushion period in the statement of accounts. Learned counsel, when confronted with the said aspect of the case has nothing to say much, however, halfheartedly tried to argue that the mark-up cannot be granted till the realization of the suit amount. Even the said argument of the learned counsel is devoid of merits. Additionally, after having admitted before us that the only grievance of the appellants is regarding charging of amount of cushion period, now it does not lie in the mouth of the appellants to raise the said plea. Even otherwise, the impugned judgment is in accordance with law.
7. In the above perspective, we have examined the impugned judgment and find that the learned Banking Court did not commit any illegality while passing the impugned judgment and the same does not suffer from any legal defect. The same is hereby maintained.
8. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed.