' SYED HAMID ALI SHAH, J.---The case of the respondent-Bank as set out in the plaint is that a running finance facility up to the limit of Rs,4,00,000 (rupees four lac only) was sanctioned to the defendant on 11-7-1996, which was renewed from time to time until 1999, when last renewal was made on 30-6-1999. Appellant failed to liquidate the liability which as per books and accounts of the bank was Rs,4,75,037 (rupees four lac seventy five thousand and thirty seven only). Appellant in response to the notice, filed within the stipulated period, application for leave to defend the suit.
Appellant sought leave to defend the suit on the grounds; that agreements are not attested by two witnesses according to mandatory provisions of Article 17 of the Qanun-e-Shahadat Order, 1984; that earlier agreements have not been filed; that security documents do not relate to facility subject-matter of suit; that the statement of account does not reflect the detail as to the disbursement; that sanction letter shows that renewals were for adjustment purposes; that no amounts were disbursed as per renewed facility and that mortgage and other documents do not relate to the finance facility.
2. Learned Banking Court dismissed the application for leave to defend the suit, on the ground that execution of documents and signatures on the agreements have not been denied and no substantial question of law or fact has been disclosed. Learned Court after dismissal of the application, decreed the suit vide judgment and decree dated 16-10-2001. Hence this appeal.
3. Learned counsel for the appellant has submitted that learned Court has failed to consider that facility according to agreement dated 30-6-1999 was allowed for a sum of Rs,4,00,000 (rupees four lac only), but no entry in the statement of account has been shown. Sanction letter dated 11-7-1996 clearly stipulates that renewal is for adjustment purposes and no withdrawal from the account was permissible. He added that in other words time was extended and in such situation no further mark-up was leviable. Respondent-Bank based its claim on agreement dated 11-7-1996 which was allegedly renewed subsequently on 30-6-1999 and 31-12-1999. Learned counsel has referred to the case of "Habib Bank Ltd. v. Al Jalal Textile Mills Ltd. 2003 CLD 1007 to contend that obligation relates to finance only and does not contemplate any addition to debt. Mark-up upon mark-up is claimed which is not legally permissible. The mortgage and power of attorney pertain to the year 1992. The points urged before the Court were not considered by the learned trial Court while passing the impugned judgment and decree.
4. Various notices were issued to the respondent-Bank but none has come forward to represent the respondent-Bank. Respondent was proceeded ex parte on 14-6-2005.
5. Heard learned counsel for the appellant and perused the record.
6. Learned Banking Court after dismissal of the application for leave to defend has decreed the suit as prayed for, by holding that contents of the plaint stood established. Learned Court passed the decree in a slipshod manner without applying its mind. The Court after dismissing the application for leave to defend the suit, is not absolved from its primary duty of seeing and judging the genuineness of the claim of the plaintiff. The Court is required to apply its mind to the facts of the case and documents before it. The Courts of law are expected to be more vigilant, cautious and considerate, while deciding the valuable rights of the parties. The impugned judgment has been passed in complete obliviation of the dictum of law laid down by the august Supreme Court in the cases of "Haji All Khan and Company v. Allied Bank of Pakistan Ltd." PLD 1995 SC 362 and "Messrs Qureshi Salt and Spices Industries v. Muslim Commercial Bank Ltd." 1999 SCM R 2353.
7. Learned Court has not cared to even examine the documents available on record, nor has seen that the plaint is supported by the statement of account to meet the mandatory requirement of subsections (1) and (2) of section 9 of the Ordinance, 2001. The decree impugned before us in this appeal is non-speaking and lacks the element of reasoning. Learned Court has not discussed in the impugned judgment and decree, the grounds urged before it, by the appellant.
8. In the above perspective, we have examined the impugned judgment and decree and find that the same is not sustainable in law and is set aside as such. The appeal in hand is accepted and the case is remitted back to the learned Judge Banking Court V, Lahore, for rewriting the judgment through a speaking order, after due notice to the parties, keeping in view the above observations.
Since the execution of documents is admitted, therefore, we are not inclined to interfere in his order as to the dismissal of the application for leave to defend the suit.