JUDGMENT MIAN HAMID FAROOQ, J. This single judgment shall decide the present appeal (RFA No. 325/99) and the connected appeal (RFA No. 326/99), as common questions of law and facts are involved in both the appeals and they have arisen out of identical judgments.
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2. M/s. Mohib Exports Limited and 4 others (appellants in RFA No. 325/99) and M/s. Mohib Fabrics Industries Limited and 4 others (appellants in RFA No. 32(5/99), through the filing of these two appeals, under Section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as Act), have called in question two judgments and decrees, both dated 15.1.1999, whereby the learned Banking Court decreed respondent- corporation's suits for recovery of Rs.. 35,06,944/- and Rs. 99,48,123/-, against M/s. Mohib Exports Limited etc. And M/s. Mohib Fabrics Industries Limited, respectively, jointly and severally with costs.
3. Precisely stated the facts of the two appeals, as discernible from the available record, are that on 26.6.1998 and 15.4.1998, the respondent-corporation instituted two separate suits for recovery of Rs.
35,06,944/- and Rs. 99,48,123/- against the appellants, before the then Banking Court, constituted under the Act. It was stated in the plaints that the appellants obtained certain machineries on lease from the respondent-corporation; they executed lease agreements and other charge documents favouring the respondent-corporation and the said finance was duly utilized by the appellants, however, subsequently they failed to adjust the lease facility according to the terms of the lease agreements, thus, necessitated the filing of the suits for recovery against the appellants.
The appellants filed the applications, under Section 10 of the Act, seeking leave to defend the suits, which applications were resisted by the respondent-corporation, In the ultimate analysis, the learned Banking Court, after finding that the appellants have failed to establish prima facie case, rejected their applications for leave to defend the suits and consequent thereto passed the separate decrees for the recovery of Rs. 35,06,944/- and Rs. 99,48,123/-, favouring the respondent- corporation, and against the appellants, jointly and severally with costs and future rental and profits, vide judgments and decrees both dated 15.1.1999, hence the present two appeals.
4. Learned counsel for the appellants, while referring to para 3 of the plaints, has submitted that the suits were filed by unauthorized persons, as there is no proof on record that the person filing the suit was the Chief Executive of the Corporation, inasmuch as memorandum and article of association were not placed on record. He has further submitted that although appellant No. 2 is not signatory to any of the agreements/documents and he did not even execute the personal guarantees, yet the decrees have also been passed against the said appellant. He, while referring to the statements of account, has added that respondent- corporation has charged mark-up over mark-up and certain amounts paid by the appellants have not been credited in their accounts.
Conversely, the learned counsel for the respondent-corporation, while refuting the aforesaid contentions, has submitted that the pleas now raised by the appellants before this Court were not agitated in their applications for leave to defend the suits, therefore, these pleas cannot be raised before this Court at the appellate stage. He has added that the statements of account are in accordance with the record of the respondent-corporation and the amounts paid by the appellants have duly been credited in the appellant's account. He has further added that respondent-corporation has recovered the total decretal amount in the case of M/s. Mohib Exports Limited, while the decree passed in the case of M/s. Mohib Fabrics Industries Limited, had partially been satisfied, as a portion of the decretal amount is still recoverable from the appellants.
5. Learned counsel for the appellants, when asked as to whether the grounds/pleas now raised by him before this Court were agitated in the leave applications, filed by the appellants, has frankly conceded that except for the plea of mark-up over mark-up, other grounds were not taken in their leave application. Thus, the appellants did not urge the afore-noted two pleas before the learned Banking Court in their leave applications, It is settled law that a litigant is not allowed to raise altogether a new plea before the appellate or Revisional Court be made to Anwarul Ali and others Vs. Manzoor Hussain and another (1996 SCM R 1770) and Amir Shah Vs. Ziarat Gul (1998 SCM R 593), In view thereof, the appellants are not permitted to agitate the new pleas, before this Court for the first time, which was not the subject-matter of their applications for the grant of leave to defend the suits, hence two contentions raised by the learned counsel for the appellants are hereby repelled.
6. Now coming to the last contention of the learned counsel for the appellants. We have examined appellants' leave applications and find that the appellants raised the specific plea in ground (g) that "plaintiff has charged mark-up on mark-up, which is illegal and against the directives of the State Bank of Pakistan". Upon the perusal of the impugned judgments, we find that although the aforenoted plea was raised by the appellants before the learned Banking Court, yet it failed to give any findings on the statements of account. Rather the said crucial plea has been brushed aside by the learned Banking Court by merely observing that "more over presumption of truth is attached with the statement of account", It appears that the learned Banking Court, without the application of judicial mind and incomplete oblivion of the impact of the said objection, has, in a stereo type manner, observed that the presumption is attached with the statement of account, It has been held in Bankers Equity Limited through Principal Law Officer and 5 others Vs. Messrs Bentonite Pakistan Limited and 7 others (2003 CLD 931), that entries in the statement of account, if dubious and challenged by the other party, could not be taken as sufficient to prove Bank's claim and no presumption of truth or correctness could be attached to such types of copies of the statements of accounts. As noted above, the appellants raised the plea about the illegal charging of markup, but the learned Banking Court failed to render any findings for or against the appellants and felt contented only by observing that the presumption of correctness is attached to the certified copies. This can hardly be called and termed as judicial order/judgment within the parameters set up by law and is in violation of the principles laid down in the cases of Gouranga Mohan Sikdar Vs. The Controller of Import and Export and 2 others (PLD 1970 SC 158) and Mollah Ejahar Ali Vs. Government of East Pakistan and others (PLD 1970 SC 173).
7. It would be appropriate to reproduce a portion of the judgment, reported as Messrs Yussra Textile Corporation and 2 others Vs. PICIC Commercial Bank Limited (2003 CLD 905), which principle of law is apt to the facts and circumstances of the present case, which reads as follows:-- "Upon the perusal of the contents of the application for leave to defend the suit, filed by the appellants, We find that they have taken a specific plea regarding the illegal charging of mark-up but the examination of the impugned judgment manifests that no findings on this material and crucial issue are forthcoming. We are of the view that it was the legal obligation of the learned Banking Court to have rendered some findings on the question of charging of mark-up, one way or the other. Of course, there are instructions/guidelines from the State Bank of Pakistan regarding the charging of mark-up and there is no dearth of case- law on this subject. We feel that the learned Banking Court ought to have given findings on this issue."
8. It has been held in the case of "Messrs Associated Construction Engineering through Proprietor and 2 others Vs. The Bank of Punjab through Branch Manager and another (2004 CLD 1611)" that where the Banking Court did not advert to the entries in the statements of accounts and gave mechanical consideration to the record of the case, the judgment of the Banking Court suffer from misreading of the record of the case and under the circumstances was set aside. We are further fortified in our views by the principles laid down in the case reported as Muhammad Ashraf Vs, Habib Bank Limited through Attorneys (2004.CLD 1561)
9. Although it has been claimed by the learned counsel for the appellants that certain amounts deposited by the appellants with the respondent-corporation were not credited in their accounts, yet on a query raised by this Court, the learned counsel could not produce any prima facie evidence, either from the available record or from his own record, to show that the appellants have deposited certain amounts which were not shown in the statements of accounts.
10. Afore-noted legal and factual position coupled with the admitted fact that the respondent- corporation has recovered the total decretal amount in one case and decree stood partially satisfied in other case, have persuaded us to hold that the appellants have been able to make out a case for the grant of leave to defend the suits only on the limited question of charging/debiting of mark-up over mark-up in the accounts of the appellants and, as such, we are inclined to grant unconditional leave to defend the suits to the appellants to that extent.
11. In the above perspective, we have examined the impugned judgments and find that the same have been passed by the learned Banking Court in complete oblivion of the facts of the case and law on the subject and it definitely suffer from misreading and non-reading of the record of the case to the extent, as noted above. Hence we see ample legal justification to set aside the impugned judgments and remand the cases to the learned Banking Court on the limited question of charging of mark-up over mark-up in the accounts of the appellants.
11. Upshot of the above discussion is that both the appeals are allowed and the impugned judgments and decrees are set aside with no order as to costs. Resultantly, appellants' applications, for leave to defend the suits, are also accepted and they are granted unconditional leave to defend the suits on the limited question as to whether respondent-corporation has charged mark-up over mark-up in the appellants' account. Consequently now both the suits, filed by the Bank, shall be deemed to be pending before the learned. Banking Court, constituted and established under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, which is directed to decide the same, afresh, only on the question formulated above, after affording opportunities to the parties to produce evidence and of course in accordance with law, within a period of three months from today.