' MIAN HAMID FAROOQ, J.---Present appeal, filed by the appellants/judgment-debtors, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as Ordinance), proceeds against judgment and decree dated 2-3-2005, whereby the learned Judge Banking Court decreed respondent/plaintiff s suit for a sum of Rs,14,46,473, against the appellants, jointly and severally.
2. Briefly stated the facts of the case are that the respondent-Bank filed the suit for recovery of Rs,14,46,473 as principal amount, mark-up and other charges along with future mark-up and liquidated damages, against the appellants, before the learned Judge Banking Court. The appellants filed the application for leave to defend the suit, which was succeeded by an amended application under Ordinance XLVI of 2001, inter alia, pleading that the Bank is not entitled to charge mark-up from the appellants; the rate of mark-up was never agreed between the parties and that there is no document on record to show agreed rate of mark-up. The learned Banking Court, after hearing the learned counsel for the parties, found that "it is not a fit case for the grant of leave to defend the suit", dismissed the leave application and consequently, passed a decree for the sum of Rs,14,46,473 against the appellants, jointly and severally with cost of funds and the costs of suit, vide impugned judgment and decree dated 2-3-2005, hence the present appeal.
3. Learned counsel for the appellants, while admitting the claim of the respondent-Bank to the extent of Rs,10,00,000 only and referring to sanction letter, statement of accounts and the contents of appellants' application for leave to defend the suit, has submitted that the respondent-Bank has charged mark-up on the financial facility, whereas it is not entitled to claim any amount of mark- up. He has added that no document, authorizing the respondent-Bank to claim the amount of mark-up, was executed between the parties. The learned counsel for the respondent has acknowledged that the principal amount is Rs, one million, however, he has stated that the appellants agreed to pay mark-up, therefore, the suit was rightly decreed.
4. We have heard the learned counsel and examined the summoned record. The respondent-Bank filed the suit for recovery of Rs,14,46,473, out of which, even according to the learned counsel for the parties a sum of Rs,10,00,000 is the principal amount, while the rest of the amount is mark-up and other charges. During the course of arguments as noted above, the learned counsel for the appellants admitted that the appellants are ready to pay a sum of Rs,10,00,000 as principal amount. Section 11 of the Ordinance, 2001, inter alia, provides that if the 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. As the appellants have admitted the claim of the respondent-Bank to the extent of Rs, one million, therefore, we feel that the case falls under section 11 of the Ordinance and we are persuaded to pass an interim decree as per the terms of section 11 of the Ordinance, 2001 to the extent of Rs, one million.
5. As regards rest of the claim of the respondent Bank, sanction advice dated 19-9-1997, which is an admitted document between the parties, shows that the respondent-Bank shall recover the "ruling rate of commission", however, prima facie it does not authorize the respondent-Bank to charge mark-up. The statement of accounts (at page 49 of the record) manifests that the respondent- Bank has in fact charged mark-up. We also find an agreement for finance for short term at page 57 of the record) which indicates the sale and purchase prices. Furthermore the appellants in their leave application have specifically taken the plea that the respondent-Bank is not entitled to charge mark-up, as there was no agreement between the parties. We find that although the said plea was taken by the appellants in their leave application, yet the learned Banking Court did not give any findings on this prime controversy. There is a complete silence in the impugned judgment about that crucial aspect of the case. The learned Banking Court did not at all touch the said matter and failed to render any findings on the questions of mark-up and its rate. The learned Banking Court was under an obligation to, at least, give some findings on the said controversy, but it has conveniently skipped over the real controversy and only after discussing about the suit, statedly, filed by the respondent No,1 against High Way Department and after holding that the Bank Guarantee was encashed after the expiry of agreed period, proceeded to decree the suit. It is, however, not discernible from the available record that on the basis of which material, the learned Banking Court has held that "the claim of the plaintiff stood admitted from the arguments of the defendant". In view whereof, we feel that the learned Banking Court failed to advert and decide the material controversy between the parties and decided the suit in complete oblivion of the record of the case, thus we are inclined to set aside the impugned judgment and persuaded to pass an interim decree.
6. 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 2-3-2005 is set aside.
(ii) In view of the admitted claim of the respondent-Bank to the extent of Rs, one million, an interim decree for the said amount, as per terms of section 11 of the Ordinance XLVI of 2001 is passed against the appellants jointly and severally and favouring the respondent-Bank.
(iii) As regards the rest of the claim of the respondent-Bank and the disputed amount, the appellants are granted unconditional leave to defend the suit and to that extent respondent's suit shall be deemed to be pending before the learned Banking Court.
(iv) The learned Banking Court, after framing the issues and recording the evidence of the parties, shall decide qua the rest of the suit amount.