Appellant, through the filing of the present appeal, has called in question judgment and decree dated 30-10-2004, whereby the learned Banking Court, after finding that appellant's application seeking leave to defend the suit lacks requisite information, as required under section 10(4) of the Ordinance, 2001, dismissed the same and then decreed respondent's suit against the appellant.
2. Precisely stated the facts of the case are that the respondent Bank filed the suit for recovery of Rs.98,88,322, against the appellant, before the learned Banking Court. The appellant filed the application for leave to defend the suit together with the written statement, inter alia, pleading that justice can be done by hearing the parties: complicated questions of law and fact are involved in this case: contention raised by the defendant in his suit, also calls for thorough probe and on reciprocal basis the defendant be also granted leave to defend the suit. The learned Banking Court, after hearing the parties and finding that the leave application, filed by the appellant, does not contain the necessary information, as required under section 10(4) of the Ordinance XLVI of 2001, dismissed the leave application and then proceeded to decree the suit against the appellant, vide impugned judgment and decree dated 30-10-2004, hence the present appeal.
3. Record of the learned Banking Court has been summoned and perused.
4. Learned counsel for the appellant has contended that initially the Bank, on behalf of the appellant, had lodged a claim of Rs.96.40,130; with the Insurance Company on account of the damage caused by fire, but later on maliciously accepted the reduced claim of Rs.25,50,000 and that the suit was pre-mature and not maintainable, as the financial facility, obtained by the appellant, was to expire on 31-10-2004. He. while referring to certain documents on record, has further submitted that as a matter of fact, the appellant has repaid the financial facility, obtained by him. He has added that despite the provision of Order IX, rule 6. C.P.C.. the plaintiff is required to prove his case. He has relied upon the cases reported as Mst. Alam Bibi v. Akbar Ali and others 2001 M LD 2007: HajI Ali Khan & Company. Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362 and Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147. Conversely, the learned counsel for the respondent. while refuting the aforesaid contentions, has submitted that the appellant failed to fulfil the requirements of section 10(4) of the Ordinance, 2001, therefore, under the law, there was no leave application pending before the learned Banking Court, thus, it was justified to decree the suit. He has further submitted that the appellant has admitted the execution of documents and availing of the loan facility. He has added that the appellant removed the pledged stocks.
5. Learned counsel of the appellant, when asked to show from his leave application or even from written statement as to whether the appellant has complied with the requirements of provisions of section 10(4) of the Ordinance, he, after great reluctance, has submitted that the appellant has filed a separate statement of accounts, which will go to show that nothing is outstanding against the appellant.
6. In view of the arguments of the learned counsel for the parties, we have examined the summoned record and find that the appellant did file the application for leave to defend the suit, wherein, the only grounds taken are that justice can only be done by hearing both the parties: there are complicated questions of law and fact in this case: contentions raised by the defendant in his suit calls for thorough probe and that on reciprocal basis the defendant be granted permission to defend the suit. It is evident from the perusal of his leave.application that he did not urge the pleas now canvassed by his learned counsel. Admittedly, the appellant was not granted leave to defend the suit, yet he has filed the written statement, which under the law, can only be filed when a defendant is granted leave to defend the suit. Section 10(10) of Ordinance. 2001 envisages that when application for leave to defend the suit is accepted, the Banking Court shall treat such application as a written statement. It is evident from the joint reading of section 10(1) and section 10(10) of the Ordinance, 2001, that after service of the defendant has been effected, as provided under section 9 of the Ordinance, he shall not be entitled to defend the suit unless, he obtains leave from the Court to defend the suit. It flows therefrom that when a defendant is served he is only required to file the application for leave to defend the suit, which application shall be in the form of a written statement and not written statement. It has nowhere been provided in the special statute that the defendant, after the service, is required straightaway to file the written statement. It is only in the eventuality that the leave is granted to the defendant that his leave application shall be treated as a written statement. In view whereof, the written statement, filed by the appellant/ defendant, without grant of leave to defend the suit, cannot be considered and while deciding the lis, only contents of his application for leave to defend the suit, (at page 149 of the trial Court's file) are to be taken into consideration.
6. Now coming to the leave application, filed by the appellant. Section 10(4) of Ordinance, 2001 provides that the application for leave to defend the suit shall state certain facts including the amount of finance availed by the defendant: the amount paid by the defendant to the financial institution and the dates of payments and the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of the suit etc. We have examined the leave application, filed by the appellant, and find that the appellant failed to give the necessary particulars. as required by section 10(4) of the Ordinance, in his said application. Additionally, there is no compliance with the requirements of provisions of section 10(5) and (6) of the Ordinance, 2001. It has been held in the case of Bank of Khyber v. Messrs Spencer Distribution Ltd. and 14 others 2003 CLD 1406 that the provisions of section 10(6) of the Ordinance are mandatory. therefore, leave application, which does not comply with the requirements of provisions of section 10(3)(4) and (5) of Ordinance 2001, will not be taken/treated as leave application and it will be presumed that no application for leave to appear and defend the suit has been filed. As the application filed by the appellant lacks the requirements of the provision of section 10(4), therefore, the same was liable to be rejected and the learned Banking Court, rightly did so and no exception can be taken to the judgment.
7. Coming to the contention of the learned counsel regarding consolidation of suits. suffice it to say that the learned Banking Court, in exercise of its discretionary powers, refused to consolidate the two suits. It is settled law that the discretionary orders of subordinate Courts cannot be interfered with, .unless found fanciful and-arbitrary. Reliance can be made to Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139.
8. As regards the contentions raised by the learned counsel of the appellant...Admittedly, the said pleas were not raised by the appellant before the learned Banking Court in the application for leave to defend the suit, therefore those cannot be agitated before this Court, in appeal. It is settled law also.
9. In the above perspective, we have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not call for any interference by this Court. We are not persuaded to unsettle the impugned judgment, as the same does not suffer from any legal defect/error.
9. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs.