JUDGMENT MIAN HAMID RAROOQ, J.- This single judgment shall decided the present appeal (RFA No. 461 of 1999) and 12 connected appeals (RFA No. 71 of 2000, RFA No. 98 of 2000, RFA No. 99 of 2000, RFA No. 100 of 2000, RFA No. 101 of 2000, RFA No. 102 of 2000, RFA No. 155 of 2000, RFA No. 156 of 2000, RFA No. 157 of 2000, RFA No. 158 of 2000, RFA No. 159. Of 2000 and RFA No. 160 of 2000) as common questions of law and facts are involved in all the appeals and they have arisen out of identical judgments.
2. All the appellants, through the filing of the aforenoted appeals, under Section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act No. XV of 1997 (hereinafter referred to as Act XV of 1997), have assailed different judgments and decrees of various dates, whereby the learned Judges Banking Courts, after dismissing their applications, seeking leave to defend the suits, passed decrees of distinct amounts in favour of the respondent bank and against the appellants.
3. Precisely stated, the facts of the cases are that in the year 1998, the respondent bank filed difference suits for recovery of various amounts, against the appellants/defendants under the provisions of Act XV of 1997, by presenting plaints before the learned Banking Courts, it was stated by the Bank that in the year 1992, the defendants applied for the grant of financial facility under Public Transport Scheme for the purchase of vehicles; the respondent bank sanctioned asked for financial facility of distinct amounts against the deposit of 10% of equity amount by the defendants; subsequently difference amounts were disbursed for the purchase of vehicles; the facility was to be repaid in 7 years in 26 equal quarterly installments together with mark up @ 15% per annum; the defendants executed documents, mentioned in the plaints; the vehicles were registered in the joint names of the bank and the defendants and refusal by the defendants to liquidate the outstanding liabilities necessitated the filing of the suits. Pursuant to the issuance of the summons by the Banking Court, as provided under the law, the defendants filed different applications, seeking leave to defend the suits, (although in some of the cases, such applications were filed after the expiry of period of limitation,) inter alia, pleading that the vehicles were not delivered to them, therefore, they are not bound to pay the suit amounts; Rashid Motors is necessary and proper party; Rashid Motors is bound to pay to amount due; the charge C.L.1175 documents were not executed in accordance with the provisions of Qanun-e-Shahadat Order, 1984; (in some of the cases the execution of documents was denied) and that a suit was also filed by Rashid Motors against the respondent Bank. The applications were resisted by the respondent bank through filing their replies, however, the learned Banking Courts dismissed the leave applications, filed by the appellants, and consequently proceeded to pass the impugned judgments and decrees of difference amounts, hence, the present appeals.
4. M/s. Ghulam Nabi Bhatti and Manzoor Hussain Butt, Advocates, the learned counsel for the appellants, while reiterating the grounds raised before the learned Banking Courts have vehemently contended that the possession of the vehicles was not delivered to the appellants as such they are not liable to liquidate the outstanding amounts; that Rashid Motors is a necessary party; that the suit were not filed by competent persons; that Zulfiqar Bhutta did not execute and sign the letters of guarantee; that the matter regarding the signatures of the appellants on charge documents should have been referred to handwriting expert for its opinion and as triable issues were raised, therefore, the appellants are entitled to unconditional leave to defend the suits.
Conversely, M/s. Zaheer Ahmed Saeed and Muhammad Arshad Qureshi, Advocates, appearing on behalf of the respondent Bank (in RFA No. 71 of 2000, RFA No. 98 of 2000, RFS No. 100 of 2000, RFA No. 102 of 2000, RFA No. 156 of 2000, RFA No. 157 of 2000, RFA No. 158 of 2000 and RFA No. 159 of 2000), while refuting the aforesaid contentions and reiterating the contents of the plaints, have submitted that upon filing different applications by the appellants, the respondent bank sanctioned the financial facility in their favour, the appellants deposited the requisite amounts equivalent to 10% equity; the bank sanctioned the financial facility for a period of 7 years; the appellants executed various charge documents; possession of the vehicles was delivered to them and when they failed to liquidate the outstanding liabilities, the respondent bank was constrained to file the suits. Mr. Babar A. Khilji, Advocate, who appeared on behalf of the respondent Bank (in RFA No. 99 of 2000, RFA No. 101 of 2000, RFA No. 155 of 2000 and RFA No. 160 of 2000), did not advance any arguments and requested for the adjournment of the case on the plea that he could not prepare his brief.
5. Adverting to the contention that the suits were incompetently filed. We have examined the record and find that the suits were instituted by the respondent bank and the plaints have been signed and verified by two persons. According to para-2 of the plaints the bank has filed the suits through Mujahid Hussain, Manager and Ch. Naeem Ahmad, Officer, both general attorneys of the respondent bank. The appellants have not denied the fact that the plaints have not been signed and verified on oath by the said two persons. Section 9(1) of Act XV of 1997, inter alia, provides that when a borrower commits a default in fulfilling any obligation with regard to loan or finance, the Banking Company may institute a suit by presenting a plaint duly supported by the statement of accounts, which shall be verified on oath by the Bank Manager or such other officer, as the Board of Directors of the Banking Company may authorize, it flows from the bare reading of the aforenoted provisions of law that merely a Branch Manager is competent and empowered to institute suit by presenting a plaint, which shall be verified on oath by him, before the Banking Court, in addition to that any other officer of the Bank, who is duly authorized by the Board of Directors of the Banking Company, can also institute the suit, in the instant case, as noted above, the suit was filed by the Manager, jointly with another officer and both are the attorneys of the bank. We have also inspected the powers of attorney in favour of Mujahid Hussain and Ch. Naeem Ahmad, duly executed by the Board of Directors of the respondent Bank. Clause-9 of the said Powers of Attorney authorizes the aforenoted persons to commence, prosecute, continue and defend all actions, suit or legal proceedings and also to sign, verify and execute plaint etc. The said persons, on the authority of the aforenoted powers of attorney and the former, being the Manager of the respondent Bank, have signed and verified the plaints, which are completely in consonance with the provisions of Section 9(1) of Act XV of 1997^ If the provisions of Section 9(1) of the Act XV of 1997, are placed in juxta position with the facts of the present case, it leads to the irresistible conclusion that the respondent bank properly, legally and validly filed the suits, through Manager and its general attorneys, in view whereof, it can neither be held nor argued that the suits, filed by the respondent bank, were not instituted by authorized persons, as canvassed by the learned counsel for the appellants. The contention of the learned counsel, in this respect, is without any substance.
6. Now coming to the question, as to whether Rashid Motors v^s a necessary party to the suits or not. Upon the examination of the definitions of "Banking Company", "Borrower", * "Customer" and "Finances", as envisaged in Section 2(a)(c)(d) and (e) of Act XV of 1997, respectively, we find that Rashid Motors does not fall within the definition of either "Banking Company" or the "Borrower" or the "Customer". Admittedly, no "Finance" was either advanced or availed by the said Rashid Motors.
Section 9(1) of the Act XV of 1997 only empowers a "Borrower" or a "Customer" or a "Banking Company" to institute a suit in the Banking Court by presenting a plaint, it is evident from the perusal of the said provision of law that no-body else, except the aforenoted three categories of persons, could file a suit before the Banking Court. As noted above, Rashid Motors does not fall under the definitions of any of the categories, therefore, the respondent Bank could not have legally impleaded Rashid Motors in the suits, filed against the appellants. Additionally, Rashid Motors did not execute any documents qua the facility in question favouring the respondent bank, in view whereof, we are constrained to hold that Rashid Motors was neither necessary nor proper party to the suits and it has rightly not been made party.
7. The respondent bank, in support of the plaints, has annexed different documents, including promissory notes, mark up agreements, letters of hypothecation, letters of authorities and undertakings/declarations etc. Said to have been executed by the appellants. Additionally, photocopies of Registration Books in the joint names of the parties have been placed on record, in some of the cases, the appellants have neither denied their signatures on the said documents, nor the execution of the documents and have raised a bald assertion that the said documents were not executed in accordance with the provisions of Qanun-e-Shahadat Order, 1984. Furthermore, the appellants have not denied the availing of the financial facility and the deposit of certain amounts, including the amount of 10% equity, it is evident from the photo copies of the Registration Books, produced by the bank, that the vehicles were jointly registered in the names of the bank and the appellants, in view whereof, it can safely be concluded that the appellants were not entitled for leave to defend the suits.
8. We find from the record that in some of the cases, the appellants have denied the execution of the documents, however the said stance does not fit in within the framework of other stands taken by the appellants, inasmuch as they have admitted the sanctioning and availing of financial facility, initial deposit of 10% of equity amount by them, joint registration of the vehicles in the names of the appellants and the bank and that the vehicles were parked with Rashid Motors. All these pleas do not commensurate with the assertion of denial of execution of documents by the appellants. Additionally, we find from the record that according to the bank, the appellants executed the documents in the year, 1992, while the suits were filed in the year, 1998, but during all this long period, the appellants did not challenge the legality, validity and genuineness of documents before any Court of law. The appellants, for the first time took the said plea about the non-execution of the documents, when the suits were filed against them. The appellants slept over the matter for a considerable long period and they are estopped to challenge the legality and validity of those documents after the expiry of a period of more than six years. Additionally, even no letter has been placed on record by the appellants to show that they have even agitated before the Bank at any stage that they did not execute the documents. We find that the denial of the appellants, at this stage, is contumacious, frivolous and the appellants cannot be allowed to defend the suits.
9. It is evident from the impugned judgments that the learned Banking Court, itself, compared the disputed signatures of the appellants with their admitted signatures on the documents on record and came to the authoritative conclusion that the signatures of the appellants on all the documents are identical, it appears that the appellants, mischievously, with mala fide intention and to wriggle out from the contractual liabilities denied the execution of charge documents without placing on record any material to demonstrate that why the suits have particularly been filed against them. According to the record entire family, together with family friends and their acquaintances, in involved in all the cases and the stance .Of the bank is that the appellants, jointly, took the delivery of 31 vehicles and colossal amount is outstanding against the appellants in different accounts. Bald assertion of the appellants regarding the denial of the execution of the documents, appears to be frivolous and has been raised only to avoid the contract the contractual noted above, thus, the same is of no avail to the appellants. The learned Banking Courts after comparing the signatures of the appellants, has rightly held that the signatures of the appellants, on all the documents are identical. To oui* mind, the mode, adopted by the learned Banking Court, for itself comparing the signatures, is in accordance with law. The learned trial Court was empowered, under the circumstances to itself compare the signatures of the appellants, with the material available on record. The Hon'ble Supreme Court of Pakistan, in the case reported as Messrs Waqas Enterprises and others vs. Allied Bank of Pakistan and 2 others (1999 SCM R 85)* has itself undertaken the exercise of comparison of disputed signatures with the admitted signatures, it appears appropriate to reproduce para 7 of the said judgment, which reads as follows:- "It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature alongwith other relevant material to effectively resolve the main controversy. We, therefore, carefully went through this process and compared documents attributed to have been executed by petitioner Ashfaq Hussain with his admitted signatures on record, which obviously had complete similarity and tallied with each other. The other evidence on record also negated the stand of petitioner as regards merits. When learned counsel for petitioners was confronted with aforesaid situation he felt great difficulty in disputing this factual aspect."
In view of the above, we find that the learned Banking Court, for resolving the controversy between the parties, has rightly adopted the mode to itself comparing the signatures with the admitted signatures, which course of action is not only in accordance with law on the subject, but also in consonance with the law declared by the Hon'ble Apex Court of the Country in the judgment of Messers Waqas Enterprises (supra).
10. As regards the pea of non-delivery of vehicles to the appellants. We find from the record/documents that the vehicles were hypothecated in favour of bank and act of hypothecation of vehicles pre-supposes that the vehicles were delivered to the appellants. The learned Banking Court has rightly held that if the appellants were not in possession of the vehicles, they could not agree to hypothecation of said vehicles in favour of the bank or to get the same registered in the joint names of the parties, it appears from the record that the joint registration was affected in the year, 1993, but the appellants did not approach the bank nor agitated the matter before any forum regarding the alleged non delivery of the vehicles for a long period of 6 years. If the vehicles were not delivered to the appellants, as canvassed by the learned counsel, why the appellants remained quiet contented for a period of 6 years and did not raise the said issue even before the bank. They did not avail any remedy before any forum and for the first time, they came up with the plea of non-delivery of vehicles, when the respondent bank filed the suits. All the factors lead to the conclusion that the possession of the vehicles was delivered to the appellants and when they failed to liquidate the outstanding liabilities, they have come up with the frivolous and baseless plea that the vehicles were not delivered to them. The said assertion, at this belated stage, is of no avail to the appellants.
11. As regard the contention of the learned counsel that the disputed documents should have been sent to the handwriting expert for its examination, suffice it to say that the said contention of the learned counsel is also devoid of any force, on the ground that when the Banking Court has itself compared the signatures and came to the conclusion that the signatures of the appellants are similar on all the documents in that case, to our mind, there was no need to send the documents to the handwriting expert. Secondly, the opinion of handwriting expert is held to be most unsatisfactory, so weak and decrepit as scarcely to deserve a place in the system of jurisprudence and the Courts are not to base the findings merely on expert's opinion, in this respect, judgment reported as Ch. Abdul Hamid vs. Deputy Commissioner and others (1985 SCM R 359) can be refereed, it has been held in Syed Shabhir Hussain vs. The State (1968 SCM R 1126), which judgment has also been referred in the judgment of Ch. Abdul Hamid (ibid,) that " the evidence of the handwriting expert is neither the only nor the best method of proving the handwriting or signature of a person, it is at best opinion evidence."
In the above perspective, we are of the view that the learned Banking Court has rightly declined to send the signatures of the appellants, for comparison, to the handwriting expert and no legal error has been committed by the learned Banking Court, while comparing the signatures, itself.
12. Adverting to the contention regarding the denial of execution of letters of guarantee by the guarantor, namely, Zulfiqar Bhutta. Upon the examination of the available record, we find that the guarantor has simply denied his signatures on the letters of guarantee without placing on record any prima facie proof to the that effect, which could furnish a valid ground for the grant of leave to defend the suit to him. Mere bald denial by the guarantor about his signatures on the letters of guarantees is not a sufficient ground for the grant of leave to defend the suit or acceptance of his appeals, unless it is shown on record that the documents were forged and fabricated and by whom, in this regard judgment rendered by Division Bench of this Court reported as Ghazala Arif vs. Union Bank Ltd (Now Emirates Bank International), Lahore (2000 CLC 1201) can be referred, wherein this Court in similar circumstances repelled the contention raised by a person, who denied the execution of documents, the relevant portion would be advantageous to be reproduced below:- "We are not impressed by this contention of the learned counsel. The bare denial of signatures on the letter of guarantee without any prima facie proof could not furnish a ground for the grant of leave to appear and defend the shit. If the arguments of the learned counsel that in all cases, where signatures on the documents are denied, leave must be granted is accepted, it would result in defeating the very purpose for which the Banking Companies (Recovery of loans, Advances, Credits and Finances) Act, 1997 has been promulgated."
13.In the above back drop, we are of the considered view that the appellants, comprehensively, failed to raise, in their leave applications, serious and bona fide disputes thereby warranting un- conditional leave to defend the suits within the para meter set up under the law. The learned /Banking Court under the present set of circumstance, while declining' to grant leave to defend the suit to the appellants, did not commit any legal error, which requires rectification by this Court in exercise of its appellate jurisdiction.
14. In the above perspective, we have examined the impugned judgments and find that the same are legal, apt to the facts and circumstances of the case and the learned Banking Courts did not commit any illegality in rendering those judgments, thus, the same are maintained.
15. Upshot of the above discussion is that the present appeals are devoid of merits, therefore, all the appeals are dismissed with no order as to cots.