MIAN HAMID FAROOQ, J.---Instant single judgment shall decide the present appeal (R.F.A. No.36 of 1998) and the connected appeal (R.F.A. No.163 of 1998/cross-objection I. as common questions of law and facts are involved in both appeals and they have arisen out of one and the same judgment.
2. Both the appeals proceed against consolidated judgment dated 3-1-1998, whereby the then Judge Banking Court party decreed the suit for mandatory injunction, instituted by Mehr Ashiq Hussain, and dismissed the recovery suit, filed by United Bank Limited/respondent No.1, against Mehr Ashiq Hussain.
3. Precisely stated facts, as discernible from the available record, are that United Bank Limited, on 4-11-1996, filed the suit for recovery of Rs.42,66,446 (Suit No.215 of 1996), against Mehr Ashiq Hussain/respondent No.2, before the Banking Tribunal (since defunct), alleging therein that respondent No.2 availed a credit facility under Prime Minister's Public Transport Scheme; he executed relevant documents including the agreement of financing favouring the Bank; he neglected to repay the outstanding liability as per the terms of the agreement and his failure to liquidate the suit amount necessitated the filing of the suit for recovery. Pursuant to the receipt of show-cause notice, from the then Banking Tribunal, respondent No.2 filed the reply to the same, inter alia, pleading that Buses/vehicles were imported by the Bank itself through its approved dealer, namely Messrs Atlantic Motor Traders (whose sole proprietor has been arrayed as respondent No.3), that buses were not in a proper running condition; that the Bank transferred the liability to Muhammad Mushtaq (the appellant) and delivered the Buses to him, who was recommendee of respondent No.3, and that Muhammad Mushtaq executed certain documents favouring the Bank.
During the pendency of the aforenoted suit, respondent No.2, on 21-7-1997, upon the facts as narrated in his leave application, filed the suit for mandatory injunction, against the Bank (respondent No.1), Muhammad Mushtaq (appellant) and Naeem Ullah Sheikh (respondent No.3), seeking a decree directing the respondent-Bank to transfer the liabilities to the appellant and respondent No.3. Confronted with the suit, all the three defendants filed separate applications for leave to defend the suit. The case of the respondent-Bank was that it did not grant any permission to Mehr Ashiq Hussain/respondent No.2 for the sale/transfer of Buses to Muhammad Mushtaq and the delivery of vehicles was illegal and that the subsequent suit cannot proceed under section 10, C.P.C. The stance of the appellant, in his leave application, was that the bank was not empowered to transfer financial facility or outstanding liability of a customer to any other person, as per notification dated 14-10-1991, that no transaction of transfer of liability was undertaking between the appellant and respondent No.2 and that he neither availed any financial facility nor executed any documents. It was pleaded by the respondent No.3 in his defence that he exerted his influence over the appellant and asked him to sign certain papers blank documents with the assurance that respondent No.3 will incur the responsibility to repay the finance.
4. Aforenoted two suits were consolidated and the learned Judge Banking Court partly decreed the suit, filed by Ashiq Hussain, directing the respondent-Bank to process the case of transfer of liability and delivery of Buses in the name of the appellant to the competent Authorities for decision in accordance with the Scheme, while suit for recovery, filed by the respondent-Bank against Mehr Ashiq Hussain, was dismissed as premature, vide consolidated judgment dated 3-1-1998. Against the said judgment, respondent-Bank filed two appeals (R.F.As. Nos.59 and 60 of 1998) and the appellant instituted the present appeal (R.F.A. No.36 of 1998), while respondent No.2 filed the cross- objection, which was treated and registered as appeal (R.F.A. No.163 of 1998). However, Bank subsequently withdrew its two appeals on 1-10-1998, resultantly, two appeals are left to be decided.
5. Respondent No.3 was proceeded ex parte by this Court, vide order dated 6-12-2004.
6. Learned counsel for the appellant has contended that the appellant signed and executed certain blank and semi blank papers/documents under undue influence and blackmailing of respondent No.3; that buses were recovered from respondent No.3; that no prior approval from Federal Government for the transfer of buses was obtained, which was necessary under Notification S.R.O. C-No.29(9)/TAR-2/91-8-91, dated 14-10-1991, and that the suit for mandatory injunction was not maintainable, hence the impugned judgment and decree may be set aside.
Zaheer Ahmed Saeed, Advocate, representing the respondent-Bank, has submitted that transfer of loan and transfer of vehicles are two different transactions and that charge documents were signed by the appellant, who neither lodged any F.I.R. nor filed suit for cancellation of documents.
He has further submitted that the appellant admitted the execution of the documents and now cannot challenge the validity and legality of the documents, executed by him. Learned counsel for respondent No.2 has stated that although original financial facility was sanctioned in favour of Mehr Ashiq Hussain, yet, subsequently. the liability was transferred in favour of Muhammad Mushtaq, who executed all the relevant documents and took delivery of the buses. He, while referring to the leave application, filed by the appellant, has further submitted that the appellant has made certain admissions. He has added that the suit for mandatory injunction was maintainable under section 9 of Act XV of 1997. Iftikhar Ullah Malik, Advocate, while arguing cross- objections on behalf of Mehr Ashiq Hussain, has submitted that although the learned Banking Court decreed his suit, yet instead of granting the relief, as prayed for in the plaint, for the transfer of liability and buses in the name of the appellant, only direction was issued to process the case for the said purposes. He has added that the impugned judgment and decree be modified according to the prayer made in the plaint.
7. We have heard the learned counsel for the parties at length, perused the summoned record and gone through the impugned judgment. In the memorandum of appeal, the appellant has admitted that he has signed certain blank and semi blank papers, which signifies transfer of loan from respondent No.2 to the appellant. It would be appropriate to reproduce a portion of para.1 of the grounds of the appeal, which reads as under:-- "So under the undue influence and emotional blackmailing of respondent No. 3, the appellant signed certain blank and semi-blank papers which ostensibly signifies transfer of loan from respondent No.2 to appellant but actually the man who is beneficiary for all payments is respondent No.3 besides respondent No.2."
We find from the record that the appellant in his application for leave to defend the suit has, in clear terms, admitted that he signed and executed many documents, which show transfer of loan in his name from the name of Mehr Aashiq Hussain, but that was under the undue influence of respondent No.3. It would be appropriate to reproduce grounds "a" and "b" of his leave application, which read as follow:--
(a) That the defendant No.2 is proprietor/Owner of Messrs Atlantic Motor Traders, Jail Road, Lahore and is Importer of Siono Pak Buses from China, therefore, they cannot enter into any transaction with any Bank for the sale or purchase of the said buses. They have to give delivery of the buses to a person who is eligible under the scheme known as "Prime Minister's Transport Scheme". The plaintiff is one of the beneficiary of the said scheme and he was granted by defendant No.1 the facility of purchase for two Siono Pak Buses, the delivery of which he got from defendant No.2. The buses were defective and after spending lot of money, the plaintiff approached defendant No.2 to transfer the loan and get a new purchaser. The answering defendant is close relation of defendant No.2 and also a very good friend of the brother of defendant No.2, namely, Safi Ullah. There are many other circumstances which will be explained through evidence whereby defendant No.2 exercised his influence on the answering deli idant. Defendant No.2 finding himself in tight corner, asked the answering defendant to sign certain papers whereas defendant No.2 would be the main man in the picture returning the loan, etc., but only using the name of the answering defendant. It was under this undue influence and misrepresentation that defendant No.2 got the signatures of the answering defendant on many papers which ostensibly signifies transfer of loan from the plaintiff to defendant No.3 but actually the man who is responsible for all payments is defendant No.2. A criminal case bearing F.I.R. No.50 of 1996 registered with F.I.A., C.B.C., Lahore at the instance of the plaintiff (complainant) against defendants Nos.2 and 3 and other also proves the fact that during the investigation a comprehensive and detailed enquiry was c onducted which shows that the answering defendant is completely innocent and defendant No.2 has been using his .name. Reports are attached wherewith. The defendant .,No.2 has also been using the names of Safdar and Nasir, real brothers, who are the sons of defendant No.2's sister-in-law whereby he also executed similar documents in favour of Kh. Siddique Pervez and Kh. Khalid Pervez.
(b) That the answering defendant is an employee of an Autonomous Body in Grade-11 and has no means to pay the huge amount for which he has been targeted and made a scapegoat by defendant No.2. As a matter of fact, a sum of Rs.8 lacs (documents attached) through three cheques had been advanced by defendant No.2 in favour of the plaintiff towards the payment of loan after the so-called execution of documents by the answering defendant in favour of the plaintiff. This would show that the man behind the scene is defendant No.2 and the name of the answering defendant is being used."
(Underlining is for emphasis)
It flows from the above that the case of the appellant, as made out before the learned Banking Court as well as before this Court, is that he signed and executed certain documents, which were blank and semi-blank. Thus, the appellant has neither denied his signature on the documents nor their execution. Even if it be taken that the appellant executed blank documents or he was made to sign certain blank documents under the undue influence of respondent No.3, the said plea will be of no help to him and will not in any case advance his case. The Division Bench of this Court, in the unreported judgment, passed on 30-3-2005, (in R.F.A. No.923 of 2001), while dilating upon similar controversy regarding execution of the blank documents and taking into consideration numerous judgments on the subject, has held that in view of section 20 read with section 118 of Negotiable Instruments Act, a person is estopped and precluded to challenge the validity and legality of the documents, which according to him were signed when those were blank. It appears appropriate to reproduce para.5 of the said judgment, which is apt to the facts and circumstances of the present case, and reads as follows:-- "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 leave application), the appellants, in view of the aforenotck provisions of 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 988 Lahore 166; Messrs United Bank Limited v. Presi lent 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. and 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, moreso 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."
In view of the above, the appellant cannot be allowed to wriggle out of his contractual obligations on the pica that he signed and executed blank documents under the influence of somebody else.
Moreso when the appellant never instituted any proceedings in this regard against respondent No.3. The principal contention of the learned counsel is hereby repelled.
8. Now coming to the notification, relied upon by the learned counsel for the appellant. Clause (iv) of the said notification provides that taxi, mini-bus or bus, which has been imported under concessionary rates under the said notification, shall not be transferred except with the permission of the Ministry of Communications, Government of Pakistan. The learned counsel for the respondent-Bank has asserted, as noted above, that no transfer of vehicle is allowed under the notification, however, transfer of financial facility has not been prohibited. It is evident from the said clause that there is no bar for the bank to transfer a financial liability from one person to another and for this no permission or approval is required from the Federal Government. In view whereof, even the said notification does not help the case of the appellant, who has, as noted above, admitted the execution c f the documents.
9. Reverting to the last contention of the learned counsel for the appellant qua the maintainability of the suit. We have re-examined the contents of appellant's leave application, and find that the appellant did not take the said plea before the learned Banking Court, inasmuch as it was never agitated by the appellant even in subsequent proceedings that the suit is not maintainable. The impugned judgment, also, does not indicate that any such objection was ever raised by the appellant even during the course of arguments. It is settled law that a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which has not been raised before the lower forums. Reference can be made to Anwar All and others v. Manzoor Hussain and another 1996 SCMR 1770 and Amir Shah v. Ziarat Gul 1998 SCMR 593.
Additionally, suit for mandatory injunction was filed on 21-7-1997, when the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997 was applicable, as the said Act came into force w.e.f. 31-5-1997. Section 9 of the said act provides that Banking Company or borrower or customer may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath. Thus the suit filed by respondent No.2 was competent in law.
In view of the above discussion, the contentions raised by the learned counsel for the appellant are devoid of force, hence the same are repelled.
10. Now coming to the connected appeal/cross-objections, filed by Mehr Ashiq Hussain. Suffice it to say that the learned Banking Court, after embarking upon every aspect of the case and finding that the question of transfer of liability is still pending and should have been disposed of by the respondent-Bank before filing the suit, partly decreed the suit, which findings are not open to exception. To our mind, the learned Banking Court has rightly passed the decree for mandatory injunction, directing the respondent-Bank to process the case of transfer of liability and the buses instead of passing a decree "directing the defendant No.1 to transfer the finance liability under agreement dated 16-11-1992", as asked for by respondent No.2. The learned counsel for the appellant could not demonstrate from the available record as to how the learned Banking Court, while partly decreeing his suit, has committed any illegality. We feel that under the present set of circumstances, best possible relief was granted to the respondent No.2.
11. In the above perspective, we are of the view that both the appeals are devoid of merits and we are not persuaded to reverse the findings of the learned Judge Banking Court. We are not inclined to either set aside or modify the impugned judgment and decree, as asked for by Muhammad Mushtaq and Mehr Ashiq Hussain, respectively through filing these appeals. We feel that the learned Judge Banking Court did not commit any illegality in passing the impugned judgment, hence the same does not call for any interference by this Court.
12. Upshot of the above discussion is that the appeals are devoid of merits, thus, both the appeals stand dismissed leaving the parties to bear their own costs.