' MIAN HAMID ' FAROOQ , J. - - -Appellants / judgmentdebtors, through the present appeal, have called in question judgment and decree, dated 24-11-2005, whereby the learned Judge Banking Court, after dismissing appellants' application for leave to defend the suit, proceeded to decree respondent's suit for recovery of Rs,36,93,825 with costs and cost of funds, except liquidated damages, jointly and severally against all the appellants.
2. Precisely stated facts, leading to the filing of the present appeal, are that the respondent-Bank filed the suit for recovery of Rs,36,93,825, against the appellants before, the learned Judge Banking Court, inter alia, pleading that appellant No,1, a partnership concern, of which appellants Nos.2 to 6 are partners, availed various financial facilities from the respondent-Bank, the defendants executed various documents, including mortgage deeds, and subsequently they defaulted in fulfilling their obligations and neglected to pay the suit amount, which necessitated the suit.
Pursuant to the receipt of summons issued by the learned Banking Court, as prescribed under the law, the appellants, except defendants Nos.8 and 9, filed the application seeking leave to defend the suit, which was opposed by the respondent-Bank through filing its reply. In the ultimate analysis, the learned Judge Banking Court, after finding that no serious and bona fide dispute has been raised in appellant's leave application, requiring recording of evidence, dismissed appellants' application for leave to defend the suit and resultantly passed a decree for recovery of Rs,36.93,825 along with costs and cost of funds, except liquidated damages, against the appellants, vide impugned judgment and decree, dated 24-11-2005, hence the present appeal.
3. Learned counsel for the appellants has contended that although plea of set off was raised by the appellants, yet it was not decided by the learned Judge Banking Court. He has further submitted that the points agitated in the leave application were not decided. He has added that the amount of Rs,5,40.256 which consists of Cushion period, mark-up, markup over mark-up and mark-up beyond the contractual period, has illegally been charged. Conversely the learned counsel for the respondent-Bank has supported the impugned decree.
4. We have heard the learned counsel and examined the summoned record. Upon the examination of appellants' application for leave to defend the suit, we find that the appellants, in ground "G" of their leave application, have admitted that the amount payable by the defendants is equal to Rs,31,53,569, but the plaintiff is claiming the excess amount to the extent of Rs,5,40,256. It may be noted here that the learned Judge Banking Court. While passing the impugned decree, has also relied upon Para "A" and Para "G" of appellants' leave application. It appears appropriate to reproduce ground "G", which reads as follows:--- "G. That the total amount payable by the defendants as per statement of account given before is equal to Rs,31,53,569 (out of which an amount equal to Rs,26,22,256 is outstanding as principal and an amount equal to Rs,5,31,313 as Mark-up) but the plaintiff bank is claiming an amount equal to Rs,36,93,825 with an amount equal to Rs,5,40,256 in excess, which is illegal, unlawful, wrongly calculated and comprised of Markup beyond the contract period. Cushion period Mark-up, Godown Staff Salaries and Insurance Charges without any premium deposit receipts, which must be excluded from the suit amount as there was no any agreement between the parties to this extent. It is pertinent to mention here that the authority letter, dated 21-10-2003 giving authority to debit the Godown Staff Salary and Insurance Charges to the CF Loan account No,77 is false, frivolous, fake and bogus."
(Underlining for emphasis).
5. It flows from the above that the appellants have admitted on the basis of their own statement of account that the total amount payable by them. Is equal to Rs,31.53.569 and the amount of Rs,5,40,256 has excessively been charged. Section 11(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001 inter alia, provides that if dispute between the parties does not extend to whole of the claim and part of the claim is undisputed, the Banking Court shall pass an interim decree in respect of undisputed amount and shall decide with respect to the disputed amount after granting leave to the defendant and framing the issues. It appears appropriate to reproduce section 11(1) of the Ordinance No,XLVI of 2001, which reads as follows:-- "Section 11(1)...If the Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed, or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff."
6. Placing the aforestated para. "G" in juxtapo. It on with the above reproduced section 11(1) of the Ordinance, 2001, it is evident that the appellants have unequivocally admitted respondent's claim to the extent of Rs,31,53,569, and this amount is undisputed, therefore, we feel that the case falls under section 11(1) of the Ordinance, 2001. Thus we are persuaded to pass an interim decree to extent of Rs,31,53,569 as per terms of section 11(1) of Ordinance, 2001.
7. As regards rest of the claim of the respondent-Bank, we seriously feel that the appellants have some case to be further investigated. The remaining amount of Rs,5,40,256, comprises of amount of Markup. Cushion period, mark-up over mark-up, insurance charges and Godown Staff Salaries.
The appellants have specifically taken the plea. In their leave application, that the amount of Rs,5,40,256 has excessively and illegally been charged and the same cannot be recovered from the appellants, who have given the bifurcation of the said amount in the concluding portion of ground "G". It appears appropriate to reproduce the said details, which read as follows: -- "Details of all the above said illegal amounts a given below under separate heads:
1. Cushion Period mark-up charging of cushion period mark-up is proved by a letter, dated 13-10--2004.
(Copy of which is attached herewith as annexure A). = Rs266,807
2. Mark-up beyond the contract period= Rs.1,37,785
3. Godown Staff salaries and Insurance Charges= Rs.1,37,785
4. Grant Total = Rs.5,40,256
8. The learned Judge Banking Court, although has dealt with the said aspect of the case, yet the same is hardly sufficient to saddle the appellants with a sum of Rs,5,40,256. The learned Banking Court did not give sufficient findings on this controversy and failed to give any findings on the crucial questions of charging of mark-up for Cushion period and markup beyond the contractual period. The learned Banking Court has referred to the document (CF-77), which prima facie empowers the Bank to charge salaries of Godown staff and insurance charges. Even the said findings are perfunctory and deficient and cannot be maintained. The learned Judge Banking Court ought to have rendered sufficient findings on the said the said controversy. In the absence whereof, the respondent-Bank cannot be allowed to recover the amount of Rs,5,40,256. In view whereof, we feel that the learned Banking Court failed to decide the material controversies between the parties and without advancing reasons has illegally held that the respondent-Bank is entitled to recover a sum of Rs,5,40,256.
9. In the above perspective, we have examined the impugned judgment and decree and are persuaded to set aside the same and to pass an interim decree of Rs,31,53,569, as held above, and to grant appellants' unconditional leave to defend the suit as regards rest of the claim of the respondent-Bank.
10. Upshot of the above discussion is that the present appeal is decided in the following terms:--
(i) Appeal is allowed and the impugned judgment and decree, dated 24-11-2005 is set aside.
(ii) In view of the admitted and undisputed claim of respondent-Bank, to the extent of Rs,31,53,569, an interim decree for the sum of Rs,31,53,569, as per terms of section 11(1) of the Ordinance, 2001 is passed against the appellants jointly and severally and favouring respondent-Bank.
(iii) As regards disputed claim of the respondent bank to the extent of Rs,5,40,256, the appellants are granted unconditional leave to defend the suit and to that extent respondents' suit shall be deemed to be pending before the learned Judge Banking Court.
(iv) The learned Judge, Banking Court shall decide the suit, qua the rest of the suit amount, after framing issues and recording the evidence of the parties.
(v) No order as to costs.
11. Present appeal stands finally disposed of.