MUHAMMAD RAZA KHAN, J.---This judgment will dispose of instant appeal and the connected F.A.B. Nos.3 to 11 of 2005 as identical question is involved in all these appeals.
2. This appeal under section 22 of the Financial Institution (Recovery of Finances) Ordinance, 2001 is directed against the judgment and decree dated 22-9-2004 of the learned Judge Banking Court-I, Peshawar, whereby he dismissed the application for leave to defend and decreed the suit of the Bank against the appellant. This order was challenged through the present appeal and along with the memorandum of appeal, an application for condonation of delay was also moved wherein it was stated that the petitioner/appellant had filed the application for certified copy on 22-9-2004 just after the announcement of judgment but had received certified copy on 9-12-1994 and the stamp indicates that the application for certified copy was submitted on 27-9-2004. Hence, it was requested that the delay of five days may be condoned.
3. The facts leading to the present appeal are that certain loan was advanced by the respondent- Bank to the petitioner on mark-up basis which was secured by undertaking and guarantee executed by the guarantors/sureties but the loan was not repaid and therefore, the Bank had to file a suit for recovery of the balance of loan amount along with liquidated damages, mark-up and other charges. The Banking Court issued the summons to the loanee and the guarantors. The loanee i.e. the petitioner appeared with an application for leave to defend but the guarantors did not contest. The appellant blankly refused to have received any loan amount and requested for leave to defend. The application for leave to defend being without proof and mere denial was rejected and the suit of the Bank was decreed. However, the prayer with regard to the grant of liquidated damages was declined. This judgment and decree has been challenged through the present appeal wherein the appellant has contended that since disputed finance was totally denied by the appellant, therefore, he should have been granted leave to defend the suit. It is also alleged in the memorandum of appeal that neither the loan was availed nor any sureties were provided and all the documents attached to the plaint were bogus and fictitious, therefore, the Court should have granted leave to defend particularly when in the agricultural finance, the loan has to be disbursed to the agriculturists against the agricultural land but the documents annexed to the plaint relating to the agricultural property were fake and bogus and not available on the record of the Bank. Finally it has been urged that since the documents did not bear the signatures of the loanee, therefore, evidence was needed to be recorded instead of passing a decree without the opportunity of defence.
4. Since there was a flat denial of the request for the grant of loan and the receipt thereof, therefore, we desired the representative of the Bank to produce the original record which was produced in the Court whereafter the learned counsel for the appellant was provided an opportunity to inspect the record. The learned counsel for the respondent assisted by the representative of the Bank stated that the loan was properly secured and fully documented. The appellant (in all the cases) had applied for the agricultural loan which was accepted and proper documents were executed. He disclosed that the same persons had acted as loanees as well as guarantors for others, so, with a collective effort, these appellants presenting themselves in dual capacity as loanee as well as surety/ guarantor on reciprocal basis, got the advance which was disbursed through the Bank account. The learned counsel for the appellants, after examining the record, was satisfied that it was a fully documented case but he argued that since as a result of the impugned judgment and decree, warrants of arrest have been issued against the appellants through the execution proceedings, therefore, the appellants were not present and he requested that the case be remanded to the learned Banking Court for providing opportunity of defence and for the decision of the case after recording evidence of the parties.
5. We are of the view that the Recovery of Finance Ordinance, 2001 is a special statute and the Banking Courts are bound to follow summary procedure which is otherwise supported by the time tested. Order XXXVII of the C.P.C. The leave to defend cannot be granted mechanically in each case and even if the leave to defend is granted, it has to be restricted to, the specific issue raised by the defendant in his application for leave to defend. Negotiable Instruments Act, 1881 specifies certain special rules of evidence comprising of certain presumptions in favour of the plaintiffs and, estoppels against the defendants. The concept of leave to defend requires that the defendant should come up with a positive defence of a particular fact which has to be supported by certain documentary evidence to convince the Court that there was sufficient ground for granting leave to defend. The mere denial of the execution of a deed will not be sufficient for the exercise of such discretion by the Court. Had there been, any positive fact alleged in the application for leave to defend, the Court would have required the defendant to prove such fact but the mere denial required negative evidence and the negative proof of fact is difficult. The verbal denial of the agreement was disproved by the documentary evidence produced by the Bank and thus, the documentary evidence negated and nullified the oral negative assertion. The Courts have the authority in such cases to compare, prima facie, the signatures of the persons appearing on the loan documents and therefore, we are of the view that the Court had exercised the said discretion effectively. And the learned counsel for the appellants was also convinced after the inspection of the loan documents presented by the respondent-Bank.
6. The impugned judgment was passed on 22-9-2004 and the certified copies were issued on 9- 12-2004 whereas the appeal was filed on 8-1-2005 which means that the appeal was filed on 31st day after the receipt of certified copies. The allegation that the application for copies was submitted on 22-9-2004 and not on 27-9-2004 is not supported by any documentary evidence except an affidavit and that too, by the learned counsel for the appellant, that the contents of the application are correct and nothing has been concealed from the Court. Any documentary proof or the copy of the application containing the date of application should have been produced or, at least, the receipt issued by the Copying Branch should have been produced which indicated the date of receipt of application and the probable date on which the copy is likely to be ready. No such documentary evidence was furnished. The appellant has to prove the delay of each single day to be entitled for condonation but here in this case, there are mere statements or denials, without any proof which cannot be relied upon. The petition is ,consequently rejected.
7. For the above reasons, we hold that there 'is no force in this appeal (as well as connected appeals) which is dismissed with costs.