' SH. HAKIM ALI, J.---House Building Finance Corporation had filed a suit for recovery Rs,3,78,552 under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997, in the Court of learned Judge Banking Court No,1, Bahawalpur, against Syed Sabir Hussain Shah, the present appellant, which suit was entrusted to Banking Court No,II, Bahawalpur. The suit was contested by the defendant by filing an application for grant of permission to appear and defend, which application was accepted on 19-3-2001 and the defendant was granted an opportunity of hearing through filing of written statement, which he did file on 11-4-2001. Issues were framed and parties had adduced their respective evidence.
2. After evaluating and appreciating the evidence brought on record by the parties the learned Judge Banking Court No,II, Bahawalpur passed a decree for Rs,3,78,552 on 8-12-2001, in favour of respondent. Hence, this appeal.
3. Learned counsel appearing on behalf of the appellant submits that it was an admitted position between the parties that the House in dispute was owned and constructed by defendant while the loan, was advanced by the plaintiff on the basis of partnership. In pursuance of it, an agreement to share the loss was also entered into between the parties by which it was settled that loss, if any, accrued to the owner of the house in dispute would be determined by the Corporation. In the year 1988, there was a great flood, which had destructed the house in dispute, and the house had become unsuitable for human inhabitation. So, an application was filed by defendant/ appellant to the respondent informing the damage having been caused to the appellant due to that flood. But the respondent did not take any prompt action upon that application. It has also been submitted by the learned counsel that according to clause (17) of the Deed of Assignment and Partnership entered into between the parties, on 16th of March, 1988 (Exh.D.2) the Corporation was bound to determine the amount of loss so occasioned to the house in dispute. Without determination of the loss, the learned Judge Banking Court could not pass a decree in favour of the Bank, which judgment was not legal and lawful.
4. On the other hand, learned counsel for respondent has opposed the contention of the learned counsel for the appellant by stating that the application was to be moved within six months according to Regulation No,18 of the Investment Regulation, 1979, dated 30th August, 1979. He has also referred to a Circular Letter No,177 of 1985 dated 24-12-1985 in this regard. According to clause
(1) of that circular the defendant/appellant was bound to inform the plaintiff respondent within six months, as the application was not moved within six months, therefore, the decree was correctly passed against the appellant.
5. After hearing both the learned counsel and from the perusal of record, it has revealed that in the written statement, the defendant/appellant had raised material point of fact that there was a great flood in the Sutlaj River, which had devastated the house in dispute and due to this damage, the house had become unsuitable for residence. But upon this material fact, no issue was framed by the learned Judge Banking Court, and the suit was decided without framing that important issue. This factual controversy was to be shaped into an issue as it was to effect materially the fate and decision of the case. The parties were to be granted opportunity to produce their evidence thereon. As this was not done, therefore, we do not consider the judgment to have been passed in accordance with law. The judgment and decree impugned is set aside and the matter is referred back to the learned Judge Banking Court for further proceedings, after framing the issue on this material point of fact, as already asserted in the written statement. The parties shall be granted fresh opportunity also to bring their evidence, after that case be decided on merits. With this direction, the appeal is disposed of.