' This regular first appeal has been filed to challenge the judgment and decree dated 28-1-2006 passed by the learned Judge Banking Court-III, Multan, whereby the suit filed by the respondent- Bank has been decreed against the appellants in the sum of Rs,5,553,761 along with costs of Rs,15,122 as well as cost of fund from the date of default till the date of realization.
2. The facts in brief are that appellant No,1 is a limited company carrying on the business of cotton ginning and pressing and appellants Nos.2 to 6 are its Directors and appellants Nos.2 to 4 are mortgagors as well. The respondent-Bank filed a suit against the appellants for the recovery of Rs,72,26,253 against cash finance facility extended to appellant No,1 against the mortgaged property as a security by appellants Nos.2 to 4. The said facility started from the year 1998 and continued in favour of the appellants on mark-up basis at the rate of 55 paisas per Rs,1,000 per day on daily products with date of expiry on 31-5-1999. However, the appellants failed to repay the full outstanding cash finance facility and an amount of Rs,34,36,000 remained unadjusted up to 1-12- 1999 so at the request of the appellants and keeping in view their past record, the respondent-Bank vide sanction advice dated 22-2-2000 converted the same into Demand Finance of Rs,34,36,000 with mark-up @ 46 paisas per thousand per day on daily products, repayable through 'half yearly instalments on 15th September and 15th March of each year up to the expiry period i,e, 15-3-2003 and that another Running Finance facility to the tune of Rs,1,00,000 was also renewed in favour of the appellants vide sanction advice dated 16-5-2000 on mark-up basis @ 46 paisas per thousand per day on daily products against the previous securities up to the expiry date i,e, 30-4-2001 and the appellants Nos.2 to 4 executed different documents in favour of the respondent-Bank. As the appellants failed to liquidate its all liabilities under the said loan and the appellants violated the agreed terms and conditions of the mortgage, hence an outstanding facility of Rs,72,26,253 became due against the appellants as their joint and individual liability and despite the demands made by the respondent-Bank the appellants failed to make payment of the entire outstanding amount mentioned above, therefore, the respondent-Bank was obliged to file a suit for the recovery of the said amount in the Court of Judge Banking Court-III, Multan.
3. The learned trial Court issued summons to the appellants and on their appearance the appellants filed application for leave to appear and defend the suit which was replied by the respondent-Bank. However, as the learned trial Court after considering the contents of the application as well as its reply, was not satisfied, therefore, the learned trial Court vide judgment dated 28-1-2006 not only rejected the said application but also proceeded to grant decree to the respondent-Bank in the sum of Rs,55,53,761 with costs as well as cost of fund from the date of default till the date of realization. The said judgment and decree of the learned trial Court has now been ' challenged in this appeal.
4. We have heard Mr. Muhammad Iqbal Khan, learned counsel for the appellants and have perused the impugned judgment along with the material available on this file.
5. A perusal of the impugned judgment indicates that the learned trial Court after fair and proper appraisal of the material has rightly rejected the application of the appellant for leave to appear and defend the suit. The relevant portion especially following para from page No,6 of the impugned judgment is worth mentioning:- "The petitioners/defendants were required to mention the finance availed by Ahem, the amount if any paid by them, the date of payment, the outstanding amount upto the date of institution of the suit and the disputed amount in the application for leave to defend the suit under section 10 of the Financial Institutions (Recovery of finances) Ordinance, 2001 but the application is silent except the loan admittedly was availed by the petitioners. The petitioners did not accompany the documents in support of the assertions made in the application for leave to defend the suit and have also failed to furnish any sufficient cause for non-compliance of the requirement of section 10 of the Ordinance. 2001, therefore, the application is hit by section 10 of the Ordinance, 2001. Reliance is placed on 2003 CLD 1406."
6. We further find that the main argument of the learned counsel for the appellants before the learned trial Court as well as before this Court is that of the pendency of the suit filed by the appellants for damages. We are afraid that pendency of such suit is a valid ground for allowing the application of the appellant for leave to appear and defend the suit. We further find that the learned trial Court at Page 8 of the judgment has in a most appropriate manner determined and fixed the liability of the appellants at Rs,55,53,761 as outstanding amount against the claim of the respondent-Bank of Rs,72,26,253. Learned counsel for the appellants has not been able to point out any illegality or irregularity having been committed by the learned trial Court while arriving at the abovementioned determination so as to demonstrate that the same was either against the record or the law. We are, therefore, satisfied that the judgment of the learned trial Court decreeing the suit of the respondent along with costs and cost of fund calls for no interference and the same is maintained.
7. 'Before starting with this order, we would like to clarify that on the previous date of hearing it was requested by the learned counsel for the appellants that the matter was likely to be settled outside the Court and for that purpose adjournment was sought whereupon the case was adjourned' for today i,e, 27-6-2006. Today Mr. Muhammad Iqbal Khan, learned counsel for the appellants has placed on the record copy of the letter dated 20-4-2006 addressed to the appellants by Chief Manager, Habib Bank Ltd. Grain Market, Chachawatni, informing the appellants that request for payment of the decretal amount through instalments was referred to the Head Office as a consequence thereof a letter was received by the said Chief Manager from the Head Office bearing No,ARM/MNA/ANSARI94 dated 14-6-2006, wherein it was informed that the Bank was ready to reduce its claim against the appellants to Rs,38,91,000 provided the entire amount was deposited in lump sum. Learned counsel for the appellants, however, submits that in the light of the above-mentioned letter, the appellants are ready to immediately deposit Rs,5,00,000 with the Bank and for the remaining amount mentioned in the said letter one year period be granted to the appellants for payment in instalments. We feel that we cannot impose any condition on the Bank and we leave the same to the appellants who may move the Banking-Court as Executing Court with the similar prayer and the Banking Court shall be at liberty to decide such question.
7-A. The upshot of the above discussion is that the appeal has no force and the same is dismissed in limine.