' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment, dated 30-3- 2005 passed by learned Lahore High Court, Lahore, whereby the R.F.A. Preferred on behalf of petitioners has been dismissed and the judgment/decree dated 2240-2001 passed by the learned Banking Court has been kept intact.
2. "Precisely stated the facts of the case are that the respondent-Bank filed the suit for recovery of Rs,17,95,176 together with liquidated damages, against the appellants, inter alia pleading that the appellants obtained financial facility to the tune of Rs,13,12,000; the appellant No,2 mortgaged his property; both the appellants executed all the relevant documents; subsequently, facility was converted into instalment facility by restructuring/renewing the original finance facility; the appellants acknowledged the new facility and executed agreement dated 26-6-1999; the appellants committed default and their failure to liquidate the outstanding liabilities, necessitated the filing of the suit. The appellants filed the application for leave to defend the suit, which was succeeded by another application, submitted after promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001. The said application was resisted by the respondent-Bank and ultimately the learned Judge Banking Court, dismissed the said application and thereupon passed the decree for the recovery of Rs,17,95,176 together with costs and mark-up, however, declined to award the amount of liquidated damages, vide impugned judgment and decree, dated 2Z-10-2001, hence the present appeal". Being aggrieved an appeal was preferred which has been rejected vide judgment impugned, hence this petition.
3. Mr. Mahmood A. Sheikh, learned Advocate Supreme Court entered appearance on behalf of petitioners and contended with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned Courts 'below which resulted in serious miscarriage of justice by ignoring the fact that claim of the respondent/Bank is based upon compounding of mark and the same being against law ought not to have been allowed. It is next contended that the bank created a fictitious rescheduling agreement just to enhance its claim against the petitioners which could not have been done and the failure and omission of the Courts below to examine the above aspect has caused serious prejudice to the petitioners. It is argued that as per agreement executed between the parties, mark-up was to be charged at Rs,0.525 per thousand per day on daily product basis which on the contrary was charged on monthly product basis which resulted in huge loss to the petitioners. It is also argued that it was bounden duty of the Court to have scrutinized the case of the petitioners before accepting the claim of bank which could not be done by the learned trial Court and the judgment/decree passed in a casual and cursory manner without examining the evidence which has come on record. It is urged with vehemence that the rescheduling agreement was not a genuine agreement as petitioners were made to sign blank documents which were later filled in by the Bank which cannot be taken into consideration being inadmissible in evidence. It is stressed time and again by the learned Advocate Supreme Court on behalf of petitioners that under the guise of rescheduling a Bank cannot be allowed to charge mark-up over mark-up.
4. We have carefully examined all the contentions canvassed at baron behalf of the petitioners, scanned the entire record and perused the judgment and decree, dated 22-10-2001 passed by learned Banking Court as well as the judgment impugned. In our considered view the entire controversy revolves around the question as to whether the agreement, dated 26-6-1999 was executed between the parties or otherwise? A careful scrutiny of the entire record would reveal that agreement, dated 26-6-1999 was executed between the parties. The agreement, dated 26-6-1999 was not only signed but the petitioners also affixed their thumb-impressions on it which were never denied. We are not at all impressed by the contention raised on behalf of the petitioners that the genuineness and authenticity of the agreement, dated 26-6-1999 is not above board as the relevant columns were left blank and filled in subsequently by the Bank. For the sake of argument even if it is admitted then why the agreement dated 26-6-1999 was acted upon and pursuant whereof ten instalments had been paid and the outstanding liability was reduced from Rs,21,05,280 (mark-up price) to Rs,17,95,176. In fact the above instalments were made as per repayment schedule which was inseparable part of the agreement dated 26-6-1999. It must not be lost sight of that the main object to get the renewed agreement was restructuring of the finance facility and not liquidation of the liability. We have no hesitation in our mind to hold that agreement dated 26- 6-1999 was authentic, genuine and executed between the parties and acted upon. A careful perusal of the agreement dated 26-6-1999 would reveal that mark-up was charged in accordance with the terms and conditions and stipulated therein. It is to be noted that in the agreement dated 26-6-1999 it has been stipulated in a categoric manner that the petitioners had also entered into mark-up agreement which was executed on 21-6-1995 and thus, it stood admitted by the petitioners. It would not be out of place to mention here that an amount of Rs,21,05,280 was mentioned as mark-up in the last agreement. It would be too late in the day to challenge its authenticity on the pretext of certain blank columns. The question which arises here at this juncture would be that as to why certain columns were left blank and if it was so done why the incomplete agreement was signed by the petitioners? No answer could be given by the learned Advocate Supreme Court on behalf of the petitioners. In our considered view the plea of "blank columns" would hardly renders any assistance to the case of petitioners. In view of the provisions as contained in section 20 read with section 118 of the Negotiable Instruments Act, 1881 no benefit could be given to the petitioner on the ground that the agreement was not completely filled in when executed as it would have no substantial bearing on the validity of the agreement. In this regard reference can be made to case Muhammad Sarfraz Khan Rana v. Government of the Punjab PLD 1990 Lah.
88. It is well-settled by now that "Negotiable Instruments Act provides that where one person signs and delivers to another paper stamped in accordance with law, either wholly blank or having written thereon incomplete negotiable instrument, in order that it may be made, or completed into negotiable instrument, he thereby gives prima facie authority to person who receives that paper to make or complete it as case may be into negotiable instrument for any amount. Furthermore, section 118 of Negotiable Instrument Act, provides that presumptions are attached to negotiable instruments, which, inter alia includes that negotiable instrument was made or drawn for consideration and that every instrument bearing date was made or drawn on such date. Held: Documents were given blank as canvassed by appellants even then appellants are estopped to challenge legality, validity and genuineness of said documents. M.P. R.M. Irulandi Mudaliar v. Syed Ibrahim AIR 1962 Mad. 326; National Bank of Pakistan v. Azizullah Hassan 1984 M LD 1035; Messrs Mach Knitters (Pvt.) Ltd. v. A.B.P. 2004 CLD 535; Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation PLD 1971 SC 550; United Bank v. Business Investment Ltd. 1982 CLC 1101; Karim v. Zikar Abdullah 1973 SCM R 100. The learned Advocate Supreme Court on behalf of petitioners has ignored the fact that "person signing and delivering to another a paper stamped in accordance with law relating to stamp duty chargeable on negotiable instruments either wholly blank or having written thereon and incomplete negotiable instrument so that it may be made or completed into a negotiable instrument, prima facie authorises recipient of such negotiable instrument to fill in required particulars. Presumption, held, would arise under section 188(b) regarding a negotiable instrument bearing a data as having been made or drawn on such date". National Commercial Bank Ltd. v. Muhammad Younus Butt 1980 CLC 90. We are conscious of the fact that "party to proceedings could discharge burden of proof placed upon him under provisions of section 118 of Negotiable Instruments Act either by producing definite evidence showing that consideration had not been passed or by relying upon facts and circumstances of case and also by referring to flaws in evidence of plaintiff and then contending that presumption had been rebutted". Chandan Lal v.
Messrs Amin Chand Mohan Lal AIR 1960 Punjab 500; Sundar Singh v. Khushi Ram AIR 1927 Lah,. 864 which could not be done.
5. We have also observed with curiosity that signatures on various documents annexed with the plaint were not disputed by the petitioners which leads us to draw the only an inescapable conclusion that claim of the petitioners was genuine and based on authentic documents.
' No illegality or infirmity could be pointed out by the learned Advocate Supreme Court on behalf of petitioners in the judgment impugned which being well-based does not warrant inference. The petition being meritless is dismissed and leave refused.