' MIAN HAMID FAROOQ, J.---Appellant/plaintiff-Bank, through the present appeal, has called in question judgment, dated 9-5-2003, whereby the honourable Banking Judge of this Court dismissed appellant's suit for recovery against respondents Nos. 4 to 6.
2. Precisely stated, facts of the case are that the appellant-Bank filed the suit for recovery of Rs,8,43,95,321 (C.O.S. No,99 of 2000) against the respondents, under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, before honourable Banking Judge of this Court, inter alia, pleading that the respondents, after having obtained financial facilities in the name of respondent No,1, defaulted in fulfillment of their legal obligations, which necessitated the filing of the suit. The respondents filed separate applications seeking leave to defend the suit. The learned Banking Judge of this Court, after hearing the parties, accepted respondents' Nos.4, 5 and 6 applications (P.L.A. No,232-B of 2000 and PLA No,238-B of 2000) and granted them unconditional leave to defend the suit. However, the leave application filed on behalf of respondents Nos. 1 to 3 (P.L.A. No,230-B of 2000) was dismissed and consequent thereto appellant's suit was decreed as prayed for against the said respondents, vide composite judgment and decree, dated 16-4-2003. Resultantly, leave applications, filed on behalf of respondents Nos. 4 to 6, were treated as written statements. Following issues were framed:-- "ISSUES:
(1) Whether the defendants Nos.4, 5 and 6 executed power of attorney. Dated 14-6-1995 in favour of Abid Ali Langa (defendant No,2)? OPP.
(2) Whether by means of the above mentioned power of attorney Abid Ali Langa was vested with any authority to mortgage the immovable properties owned by defendants Nos. 4, 5 and 6 to secure the financial facilities advanced by the plaintiff-Bank to Messrs A-One Chicks and Feed (Pvt.) Ltd. (defendant No,1)? OPP.
(3) Relief.
' Learned Banking Judge, without recording evidence of the parties, decided the aforenoted two issues against the appellant and proceeded to dismiss appellant's suit against respondents Nos. 4 to 6, vide impugned judgment, dated 9-5-2003, hence the present appeal.
3. Despite service, none has entered appearance to represent respondents Nos. 1 to 3, thus they are proceeded ex parte.
4. Learned counsel for the appellant-Bank submits that the impugned judgment is not sustainable in law, as both the issues have been decided against the appellant without providing it opportunity to produce evidence in support of its claim. He has added that the respondents have, in fact, acknowledged their liabilities Mian Israr ul Haq, Adv&ate, representing respondents Nos.4 and 6, while supporting the impugned judgment, states that the suit has rightly been dismissed against the said respondents. He has added that the decree had already been executed and appellant's claim stood satisfied. Alamgir, Advocate, learned counsel of respondent No,6, contends that even according to the stance of the appellant-Bank, respondent No,6, Muhammad Hanif, did not execute any document to connect him with the availing of the loan facilities. He has submitted that the bank previously filed the suit (C.O.S. No,13 of 1997) against the respondents, but it was withdrawn on the ground that the matter was settled. Learned counsel for the appellant, in rebuttal, informs that although some properties were sold in execution of the decree, but the total decretal amount has not been recovered.
5. It has been noted in the impugned judgment that "Muhammad Younas (defendant No,7) was already dead before the suit was filed and his name has been deleted front the array of the defendants." In view whereof, defendant No,7 has erroneously been impleaded, therefore, the present appeal to his extent is incompetent.
6. We have heard the learned counsel and examined the summoned record. As above. The learned Banking Judge decreed appellant's suit, as against respondents No,1 to 3, while the leave was granted to respondents Nos.4 to 6, vide judgment and decree, dated 16-4-2003. It appears from the record that respondents Nos.1 to 3 did not avail any legal remedy before the higher forum, thus the said decree has attained finality. It is true that although the learned Judge framed the issues, yet did not allow the parties to lead evidence. Section 10(10) of the Financial Institutions (Recovery of Finances) Ordinance No,XLVI of 2001 provides that where the application for leave to defend the suit is accepted, the Banking Court shall treat the application as a written statement, shall frame issues relating to the substantial questions of law and fact and fix a date for recording of evidence and dispose of the suit. It appears appropriate to reproduce the said provision of law, which reads as follows:-- "Section 10(10). Whether the application for leave to defend is accepted, the Banking Court shall treat the application as a written statement, and in its order granting leave shall frame issues relating to the substantial questions of law or fact, and subject to fulfillment of any conditions attached to grant of leave, fix a date for recording of evidence thereon and disposal of the suit."
In the instant case, the learned Banking Judge after acceptance of leave applications filed by the respondents Nos.4 to 6 although framed the, issues yet straightaway dismissed appellant's suit in complete derogation to the provisions of section 10(10) of the said Ordinance: Placing the facts of appellant's suit for recovery in juxta-position with the provisions of section 10(10) of the Ordinance No,XLVI of 2001, it is evident that the learned Banking Judge did not adopt the procedure prescribed under the special Statute. We find that while rendering the impugned judgment, the provisions of section 10(10) of the Ordinance No,XLVI of 2001 has completely been bypassed, thus the appellant- Bank has been non-suited and as a matter of fact, it has been condemned unheard. We are of the view that the learned Judge has dismissed appellant's suit, in violation of the procedure provided under section 10(10) of the Ordinance No,XLVI of 2001, thus the impugned judgment cannot be upheld. In arriving the aforesaid conclusion, we find support from the judgment reported as Lt-Col. (Retd.) Mahmood Akhtar v. Bank of Punjab through Manager 2004 CLD 821, wherein it has, inter alia, been held that "confronted with the above, learned counsel for the respondent has not been able to show as to under what law, the suit had been decreed, when after the grant of leave to the respondent-defendant, ii was obligatory upon the Court to have framed the issues and permitted the parties to produce evidence." (Underlining is for emphasis).
7. As regards the contentions raised by the learned counsel for the contesting respondents, we have refrained from giving any findings because we are inclined to remand the case to the learned Banking Judge of this Court, before whom the entire case would be wide open, and the respondents can raise all the pleas, available to them under the law, before the learned Banking Judge.
8. In the above perspective, we have examined . The impugned judgment and find that the same is not sustainable in law, inasmuch as the same is contrary to the provisions of section 10(10) of the Ordinance No, XLVI of 2001, thus we are persuaded to set aside the said judgment.
9. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment, dated 9-5-2003 is set aside with no order as to costs. Resultantly, appellant's suit shall be deemed to be pending before the learned Banking Judge of this Court, who shall decide the same after recording evidence of the parties and of course in accordance with law.