C.M. No,2 of 2005 ' This C.M. Is listed for today. Both the learne I mnsel request that the main appeal be heard today.
Main appeal
2. This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is directed against the judgment and decree dated 10-9-2005 passed by the Judge Banking Court No,II, Gujranwala.
3. Brief facts leading to the filing of this appeal are that the respondent-Bank instituted a suit for the recovery of Rs,48,020,080 against the appellants who upon service entered appearance and filed an application for leave to defend the suit. After hearing the parties the Banking Court seized of the matter primarily relying upon two letters dated 16-3-2002 and 14-6-2002 purported to have been issued by appellant No,1 dismissed the said application and decreed the suit as prayed for vide the impugned judgment and decree dated 10-9-2005.
4. The learned counsel for the parties have been heard and the record appended with this appeal perused.
5. It is contended by the learned counsel for the appellants that the plaint did not fuflil the mandatory requirements of section 9(3) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, hence was liable to be rejected. It is further contended that in fact two separate finances has been advanced by the respondent-Bank; one was the Export Refinance of Rs,27.00 million and the second was the Running Finance of Rs,8.00 million and as per the sanction advice rate of the markup payable thereupon was fixed at Rs,10% and 17% per annum respectively. The respondent-Bank illegally clubbed two finances and charged exorbitant and illegal mark-up thereupon. It is contended by the learned counsel for the appellants that in fact a total sum of Rs,58,981,547.49 has been paid by the appellants and as a consequence whereof only a sum of Rs,14,389,900 is actually due from the appellants. In support of his contention the learned counsel referred to the details of the amount actually availed, Mark-up lawfully due thereupon and the amount paid or otherwise recovered by the respondent Bank which has been appended with the appeal. It is further contended that the respondent-Bank has in fact grossly overcharged the mark-up and has raised this fictitious claim. Adds that the letters in question were in fact written by way of settlement and, therefore, did not constitute admissions nor would be admissible in evidence.
6. A perusal of the impugned judgment reveals that none of the contentions taken by the appellants has been adverted to or adjudicated upon by the Banking Court. A specific preliminary objection was taken that the mandatory requirements of section 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 have not been complied with by the respondent/plaintiff but the same has not been adjudicated upon. Similarly the other objections regarding the amount due and the amount paid have also not been adverted to. The contention of the learned counsel that the letters relied upon by the Banking Court were in fact written by way of settlement, hence were not admissions or admissible in evidence have also not been considered by the .Banking Court. The learned counsel for the respondent when confronted with the aforesaid contentions raised on behalf of the appellants has been, unable to show from the plaint that the requirement of section 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been complied with. He has also been unable to rebut the contentions regarding the amount actually due or to explain at the bar how the suit amount has been arrived at. In the circumstances it is clear and obvious that a plausible defence has been set up by the appellants with respect of the part of the claim, which is disputed, and consequently were entitled to grant of leave to defend the suit in respect thereof.
7. In this view of the matter the impugned judgment and decree are not sustainable and are hereby set aside. The appellants are granted leave to defend the suit subject to the deposit of the admitted liability of Rs,14,389,900 with the trial Court within 60 days from today. If such amount is not deposited the application for leave to defend shall stand dismissed. With the above observation this case is remanded to the Banking Court in the above terms.