MIAN HAMID FAROOQ, J.---Appellants, through the filing of the present first appeal, have called in question judgment and decree dated 22-10-2001, whereby the learned Judge Banking Court, after dismissing appellants' application for leave to defend the suit, proceeded to decree the suit for recovery of Rs.17,95,176 along with costs and mark-up against the appellants, however, declining to award the amount of liquidated damages.
2. Precisely stated the facts of the case are that the respondent-Bank filed the suit for recovery of Rs.17,95,176 together with liquidated damages, against the appellants, inter alia pleading that the appellants obtained financial facility to the tune of Rs.13,12,000; the appellant No.2 mortgaged his property; both the appellants executed all the relevant documents; subsequently facility was converted into instalment facility by restructuring/renewing the original finance facility; the appellants acknowledged the new facility and executed agreement dated 26-6-1999; the appellants committed default and their failure to liquidate the outstanding liabilities, necessitated the filing of the suit. The appellants filed the application for leave to defend the suit, which was succeeded by another application, submitted after the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001. The said application was resisted by the respondent-Bank and ultimately the learned Judge Banking Court dismissed the said application and thereupon passed the decree for the recovery of Rs.17,95,176 together with costs and mark-up, however, declined to award the amount of liquidated damages, vide impugned judgment and decree dated 22-10-2001, hence the present appeal.
3. Learned counsel for the appellants states that although originally the finance facility of Rs.13,12,000 was availed by the appellants and they did execute the relevant documents, yet the same was liquidated. He has vehemently contended that no restructuring/renewal was made to the original financial facility and no disbursement was made inasmuch as no documents were executed at the time of the alleged renewal/restructuring of the financial facility. He has added that during the currency of original financial facility, certain blank documents were got signed by the functionaries of the respondent-Bank from the appellants and those may have been fabricated, so as to make the documents particularly agreement dated 26-6-1999. He has relied upon Mushtaq Ahmad Vohra v. Crescent Investment Bank Limited 2005 CLD 444 and Habib Bank Ltd. v. A.B.M. Graner (Pvt.) Ltd. PLD 2001 Karachi 264. Conversely learned counsel for the respondent-Bank has submitted that blank documents, as alleged were not obtained by the respondent-Bank at the time of the renewal/restructuring of the amount, and the appellants executed the agreement dated 26-6-1999. He, while referring to Schedule-B, attached to the agreement dated 26-6-1999 (at page 67 and page 87 of the Banking Court's record) has further submitted that the said agreement was not only executed but the same was also implemented inasmuch as the appellants deposited ten instalments.
3-A. In view of the arguments of the learned counsel, we have examined the available record, particularly the "Agreement for long term finance on mark-up basis" dated 26-6-1999, which in fact has been disputed by the appellants and appears to be sole bone of contention between the parties. The parties are at one that the appellants availed the financial facility of Rs.13,12,000, executed the documents and they mortgaged the property. The agreement dated 26-6-1999 bears the signatures as well as thumb-impressions of both the appellants. Even otherwise, the appellants did not dispute their signatures on the said agreement and their case is that this agreement was signed by them but at the relevant time, the same was blank. It has duly been recorded in the questioned restructuring/renewal agreement of 1999 that the customer had already entered into mark-up agreement dated 21-6-1995, which agreement stands admitted by the appellants. Mark-up price, mentioned in this latest agreement, is Rs.21,05,280. This agreement has also been signed by the parties and witnessed by two witnesses as required under the law.
Thus we are of the view that the appellants did execute the agreement dated 26-6-1999 and denied its execution only to wriggle out from the contractual obligations.
4. We have also perused Schedule-B, attached to the questioned agreement, wherein repayment schedule has been given. According to this schedule the appellants were to pay total outstanding liabilities in 60 instalments, each instalment of Rs.34,363. We find from the statement of accounts that the appellants paid instalment of Rs.34,363 each starting from 3rd of August, 1999 and have in fact paid 10 instalments, thereby reducing the balance amount from Rs.21,05,280 (marked up price) to Rs.17,95,176, for the recovery of which the respondent-Bank filed the suit. This fact is sufficient to indicate that the said agreement was not only executed and signed by the appellants, but the same was also implemented by depositing the agreed instalments in the account of the appellants. In view whereof, it can neither be argued nor held that the appellants did not execute the agreement dated 26-6-1999.
5. Now coming to the plea of the learned counsel regarding the signing of blank documents.
Section 20 of Negotiable Instruments Act, 1881 provides that where one person signs and delivers to another a paper stamped in accordance with law, either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the person, who receives that paper to make or complete it. Section 118 of Negotiable Instruments Act, inter alia, provides that presumption is that every negotiable instrument was made or drawn for consideration. Even if it be taken that the documents were signed, when those were blank (as alleged by the appellants in para. (C) of the grounds of their B leave application), the appellants, in view of the aforenoted provisions of the law are estopped to challenge the legality, genuineness and enforceability of these documents. If any case-law is needed, judgment reported as Bank of Khyber v. Messrs Spencer Distribution Ltd. and 14 others 2003 CLD 1406, (wherein cases reported as Muhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Karachi 76; S.K. Abdul Aziz v. Mahmoodul Hassan and 3 others 1988 CLC 337; Haji Karim and another v. Zikar Abdullah 1973 SCMR 100; Allied Bank of Pakistan Ltd. v. Messrs Gujrat Friends Traders and others PLD 1988 Lahore 166; Messrs United Bank Limited v. President Bazm-e-Salat and another PLD 1986 Karachi 464; Bazm-e-Salat and others v. Messrs United Bank Limited PLD 1989 Karachi 150; Prudential Commercial Bank Ltd. v. Hydari. Ghee Industries Ltd. and 9 others 1999 MLD 1964 and Messrs Bank of Oman Limited v. Messrs East Asia Trading Co. Ltd. 4 others 1987 CLC 288 were relied upon ) can be referred. As regards the judgments relied upon by the learned counsel for the appellants, suffice it to say that those are not applicable in view of the facts and circumstances of the present case, more so when it has been held that the appellants did execute restructuring/renewal agreement dated 26-6-1999 and it was duly implemented by the appellants by depositing the instalments.
6. In the above perspective, we have examined the impugned judgment and find that the same does not suffer from any legal error. We see no cogent reasons to unsettle the impugned judgment, which is hereby maintained.
7. Upshot of the above discussion is that the present appeal is devoid of merits, hence dismissed leaving the parties to bear their own costs.