JUDGMENT FAZAL-E-MIRAN CHAUHAN, J.- The petitioners, who are legal heirs of Late Muhammad Majid, who was loanee, of United Bank Ltd. Respondent bank had challenged the impugned order dated 17.3.2003 of the Judge Banking Court No. 3, Multan vide which objection petition filed by the petitioners was dismissed.
2. The brief facts of the writ petition are that the petitioners, legal heirs, of the original loanee Muhammad Majid, were impleaded as defendants in the suit filed by the respondent bank for recovery of Rs. 9,35,991/-. The petitioners did not contest the suit and requested to pay the suit amount in three instalments. The Judge Banking Court No. 3 Multan decreed the suit on 30.9.1998 for a sum of Rs. 8,0, 000/- with the cost of Court-fee to be paid in three instalments, as prayed by the petitioners. The first instalment of Rs. 4,Q0,000/- was to be paid till 28.12.1998; 1/4 of the remaining balance till 28.6.1999 and the remaining balance till 28.12.1999. it was further observed by the Banking Court, that if judgment-debtor failed to pay the amount according to the above- mentioned schedule and defaulted in payment of in any one of the instalments the entire remaining amount shall be recoverable forthwith through process, of execution i.e. (by sale mortgaged property, detention etc. Etc.) and in that event, the amount shall be recoverable with mark-up till the date of its realization. This judgment and decree, passed on 30.9.1998 was not challenged by the respondent bank. The petitioners paid Rs. 4,00,000/- on 23.12.1998, the first instalment within time i.e. Before 28.12.1998. The second instalment, which was due on 28.6.1999, was not paid in time, and Rs. 1,50,000/-was paid on 16.11.1999, then again paid Rs. 25,000/- on 26.1.2000. Again on 30.10.2000 paid Rs. 1,40,000/- and finally on 29.11.2000 paid Rs. 90,991/-. Having received the above-said amount of Rs. 8,05,991/-, the respondent bank issued a statement of accounts dated 29.11.2000 showing a balance of nil to the petitioners.
The decree-holder bank on 16.8.2001 filed execution for recovery of Rs. 2,05,191/-. in the said execution application admitted receipt of Rs. 8,05,991/-. As per execution application a total sum of Rs. 10,11,142/- was calculated, as outstanding amount from which amount received as Rs. 8,05,991/-, was deducted and demanded Rs. 2,05,151/- due from the judgment-debtors as mark-up due on the amount paid.
3. The petitioners judgment-debtors filed objections before the Banking Court No. 3, Multan to the effect that they had paid the entire suit amount of Rs. 8,0, 000/- with cost by 29.11.2000 and a statement of accounts showing nil as balance was issued by the bank. Nothing is due as per statement of accounts against the petitioners, and it was only op the demand of title documents of the mortgaged property by the petitioners, the bank on 16.8.2001 almost after nine months of receiving the total amount. Filed the execution application by calculating markup of Rs. 2,05,404/- from the date of decree till filing of the execution application. The decree-holder bank at the most could charge mark-up from 29.6.1999 on the remaining balance amount and not beyond that.
4. The learned Judge Banking Court No. 3, Multan, dismissed the objections filed by the petitioners without framing issues, recording evidence and holding inquiry on the objections. Hence, this writ petition.
5. It is argued by learned counsel for the petitioners that the learned Judge Banking Court No. 3, Multan passed the impugned order in sheer violation of law, equity and principle of natural justice.
The respondent, decree-holder bank, having received the entire suit amount and cost of the suit i.e. Rs. 8,05,991/- from the petitioners, without raising and objection to the late payment are estopped by their conduct for raising objections and claiming mark-up from the date of decree, till realization of the decretal amount. The respondent bank also issued a statement of accounts showing balance as .Nil. it is further argued that at the most the decree hold bank could claim mark-up on the balance remaining amount from 28.6.1999 to 29.11.2000 at the stipulated rate which comes to Rs. 54,628.77.
6. Learned counsel appearing on behalf of the respondent bank argued that the judgment-debtors petitioners failed to live upto their commitment and failed to deposit 25% of the remaining amount by 28.6.1999, resultantly the entire remaining amount became due and the decree-holder bank is entitled to recover the same with mark-up from the date of decree till its realization. He further argued that word amount used in the judgment means the decretal amount and the bank has rightly calculated mark-up from the date of decree till realization on the decretal amount. He also challenged the genuineness of the statement of accounts attached with the writ petition as Annexure-F.
7. We heard learned counsel for the parties at some length, perused documents annexed with the writ petition. Our findings on the issues raised in the writ petition are as under: "The petitioners/defendants being orphans and widow of the original loanee adopted a responsible and respectful attitude by conceding and agreed to pay the suit amount in three instalments, if liquidated damages and other accessory expenses are set aside. The Judge Banking Court No. 3 Multan decreed the suit allowing the petitioners to pay the suit amount with cost of Court-fee if, they paid 1/2 of the decretal amount i.e. Rs. 8,00,000/- till 28.12.1998 and 1/4 of the remaining amount by 28.6.1999 and the remaining balance till 28.12.1999. it was further observed, that if the judgment-debtors failed to pay any one of the instalment in time, the remaining balance shall become recoverable forthwith through process of execution with mark-up till its realization, it is admitted position that the petitioners paid Rs. 4,0, 000/- i.e. 1/2 of the decretal amount bn 23.9.1998 within the target date. The remaining instalments were not paid in time, as ordered by the Judge Banking Court No. 3, Multan. The petitioners, however, were able to pay the entire decretal amount on 29.11.2000 and a statement of accounts showing a balance of nil was issued by the respondent bank, photo-copy of which is annexed with this writ petition. The petitioners having not lived upto their promise, failed to pay the two remaining instalments in time, rendered themselves liable to pay mark-up on the remaining balance i.e. Rs. 4,05,891/- of the decretal amount. The petitioners' case with the demand of respondent bank to calculate mark-up at the stipulated rate on the entire decretal amount from the date of decree till its realization, is incorrect and is against the terms of judgment and decree dated 30.9.1998. The words used in the judgment and decree dated 30.9.1998 by the Judge Banking Court No. 3, Multan, are that "if the judgment-debtors failed in the above-quoted schedule in any one of the Instalments, the entire remaining amount shall be recoverable forthwith through process of execution i. e. Sale of mortgaged property, detention eto. Etc. And in that event, the amount shall be recoverable with mark-up, to the date of realization". The words 'amount' used in the latter part of order qualifies the word used as "the entire remaining amount" and not the entire decretal amount." .
8. Similarly, the decree which was prepared in the light of the judgment says (if the defendants fail to comply with the above-quoted schedule, the entire remaining balance shall be recoverable Forth with along with mark-up, to the date of real ' on), ere in the decree again it was clarified that, in case of default, the decree-holder bank would be entitled to recover the entire remaining balance with mark-up and not entire decretal amount. The decree- holder bank, wrongly calculated mark-up on the entire decretal amount, from, the date of decree, it was only on 28.6.1999, when petitioners defaulted to pay 1/4 of the remaining balance, the-whole remaining amount became due authorizing the decree-holder bank to recover the same with mark-up. As is obvious from the judgment and decree, the mark-up is to be calculated from the date, when the remaining balance becomes due, and not from the date, when the decree was passed. Here in this case, as per judgment and decree, the remaining balance becomes due on 28.6.1999, when 1/4 of the remaining decretal amount was to be deposited. The mark-up on the remaining balance calculated by the petitioners is Rs. 54,628.77 and not 2,05,404/- as calculated by the decree-holder bank on the entire decretal amount from 30.9.1998 onward. The respondent bank has not placed any document showing the correct position of the judgment-debtors' account. No statement of accounts duly verified has been placed on the record.
9. . The other ground raised by the petitioners to the effect that after receiving the entire decretal amount by 29.11.2000, the respondent bank issued a statement of accounts, showing balance as nil against the petitioners. Hence the respondent bank is estopped by their conduct to claim any mark-up from the petitioners. This argument raised by the petitioners has no force, as the petitioners having failed to deposit the second instalment by 28.6.1999 had rendered themselves liable to pay mark-up on the remaining . Decretal amount till its realization. The statement of accounts allegedly issued by the bank is of no help to the petitioners.
For the. Foregoing reasons, we partly allow this writ petition holding that the petitioners are liable to pay mark-up on the remaining balance of the decretal amount from 28.6.1999 till its realization and not on the entire decretal amount from 30.9.1998 till its realization. The claim of respondent bank to this effect is set aside and it is declared that the respondent bank can claim simple mark- up on the remaining balance i.e. Rs. 4,05,991/- from 28.6.1999 till its realization.