1. ' MUSHIR ALAM, J.---The appellant has impugned the judgment and decree dated 30-4-2003 and 9-5-2003 respectively passed by Banking Court No,4 at Karachi in Suit No,131 of 2001. Suit was decreed to the extent of prayer clause (iv) only to the extent of Rs,7,55,975 on account of agreed lease value. The Court below declined other claims.
2. ' Mr. Asim Mansoor, learned counsel for the appellant contended that, the learned Banking Court failed to appreciate that the relief claimed in prayer clause (iv) was in alternate to prayer clause (iii), which relief was prayed in lieu of return of the vehicle to the plaintiff. It was asserted that there was no reason to decline other relief as prayed for.
3. ' Briefly stated the facts appears to be that, the appellant, a leasing company, provided vehicle on lease to the respondent under the lease agreement dated 31st March, 1999 on the terms set out in the agreement. As a security for payment of rental and other amount due under the agreement, defendant/respondent executed Promissory Note, Trust receipt, Guarantee and Indemnity.
4. ' It seems that originally the vehicle made Toyotta Corola was leased out and it appears that theft of the vehicle was committed and in lieu thereof the appellant received insurance claim. Out of insurance claim, the appellant provided another vehicle to the respondent. Such acknowledgment is available at page 79. In the acknowledgment it was clearly stipulated that "all other terms of the above mentioned lease agreement shall remain unchanged". It seems that on account of the default in payment of rental value, subject suit was filed with the following prayers:- "(1) A judgment and decree against the defendant in sum of Rs,279,750 together with future rentals @ of Rs,27,975 p.m. On account of lease rentals.
(ii) A judgment and decree against the defendant in the sum of Rs,97,548 on account of Additional Lease Rentals along with future Additional Lease Rentals @ 0.1% per day.
(iii) Judgment and decree directing the defendants to return the vehicle No,ACK-706 to plaintiffs the leased out vehicle, Model 1999 Engine No,3734146, Chasis No,9006916.
5. In the alternative
(iv) a judgment and decree against the defendant for a sum of Rs,755,975 on account of agreed loss value/residual value.
(v) Cost of the suit.
(vi) Grant such other/further/additional decree or decree order or orders, relief or reliefs, that this Honourable Court may deem fit and proper in the facts and circumstances of the case."
6. ' The defendants/respondents were served and filed leave to defend application on the grounds, inter alia, that the plaintiff had recovered value of the vehicle in settlement of insurance claim and there is no lease agreement in respect of second vehicle that was delivered in lieu of earlier vehicle. Leave to defend application was dismissed vide order dated 17-4-2003, suit proceeded and the learned Court decreed the same in the sum mentioned above.
7. ' It was contended by the learned counsel for the appellant that the Court below decreed the suit in terms of prayer clauses (iv) only, which was merely alternative for the prayer clause (iii). It was urged that, in absence of contest or otherwise, plaintiff was entitled for all the relief prayed for.
8. ' We have heard the learned counsel for the appellant, examined the impugned judgment and found that the contention of the learned counsel is correct.
9. ' When admittedly the defendant failed to pay lease rental in terms of clause 17(c) of the agreement, the do I pendant/ respondent is liable to pay 0.1% per day on the amour I over all due.
10. When leave to defend application is dismissed in a suit filed by a banking company then the allegation of facts in the plaint are to be deemed to be true and the Banking Court May pass decree in favour of the plaintiff on the basis thereof. Unless otherwise, in the interest of justice Banking Court may require any other material to satisfy itself of claim in suit.
11. ' It appears that the learned Banking Court has not adverted to such aspect of the matter and merely decreed the suit only for the value of the vehicle, which was claimed in alternative to prayer
(iii) above. There appears to be no reasons to disallow other relief prayed for.
12. ' Under the circumstances, in our opinion the respondents were also liable to pay Rs,27,975 p.m.
13. Being lease rental up to the date of decree. In terms of clause 17(c) of the Lease agreement further rental of 0.1% per day that comes to Rs,97,548. A decree for a sum of Rs,755,975 on account of agreed loss value/residual value of the leased vehicle.
14. ' Accordingly the appeal is allowed and the suit is decreed in terms above.
15. ' It may be observed that respondents were served through all modes and publication was effected in daily Jang dated 18-6-2005 but they failed to appear. Therefore, we proceeded to hear the learned counsel for the appellant and decided the appeal on merits.