1. SYED ZAHID HUSSAIN, J.---A suit for declaration and permanent injunction was filed by the respondent to the effect that the appellant Bank was not "entitled to invoke the powers under section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 without determination of liabilities by way of judgment against the plaintiff passed by the Court of competent jurisdiction along with a prayer of permanent injunction restraining the defendant not to put into the auction proceedings of the mortgaged property of the plaintiff till the decision of the suit". Vide judgment dated 5-5-2003 the suit was decreed by the learned Banking Court-II, Faisalabad by taking the view that "the plaintiff is liable to pay an amount of Rs.75,26,635 as full and final liquidation of the liabilities and as such the bank is entitled to draw the same from the office of this Court with no order as to costs." It was further ordered that "the plaintiff is entitled to get back cheque No.129834 dated 20-5-2003 for Rs.42,14,874 from this Court. As there is nothing outstanding against the plaintiff in the foregoing reasons so it is directed to the revenue authorities to remove the factum of mortgaged properties mentioned above and fresh Fard Jamabandi be issued to the plaintiff on the payment of usual cost." This is appeal by the defendant/Bank against the same. The correctness and legality of the judgment passed by the Banking Court and the procedure adopted in doing so has been assailed by the learned counsel, who contends that the learned Banking Court has proceeded arbitrarily in rejecting the application for leave to defend the suit. It is contended that the liability of the respondent/plaintiff as per record of the appellant/defendant was Rs.1,17,41,508.95 till 16-1-2003 and any dispute about the correctness thereof could be determined by granting leave to defend and due trial of the suit only. Despite the fact that the name of the learned counsel for the respondent appears in the cause list; none has appeared. The appeal thus has been heard ex parte.
2. As mentioned above, it was the respondent/plaintiff who had instituted the suit before the Banking Court. The availing of financial facility had not been denied. The whole issue was about the correct determination of quantum of liability and amount due. The appellant/Bank had come up with the plea through its application for leave to defend that the liability of the respondent/plaintiff was to the extent of Rs. 1,17,41,508.95, up to 16-1-2003. On the other hand, the appellant Bank admitted the liability to the extent of Rs.75,26,634.48, which stance of the respondent/plaintiff was accepted by the learned Banking Court and suit was decreed in the terms mentioned above. At this juncture an order passed by the Banking Court on 2-4-2003 may be referred in which it was observed that "the amount as per calculation of the Bank is Rs.1,17,41,508.95 however, as per version of the plaintiff this amount is Rs.75,26,634.48. By way of institution of this application the applicant/plaintiff has sought permission in order to deposit Rs.75,26,634.48. It is contended by the learned counsel that the said amount is in fact outstanding against the plaintiff'. On the subsequent date, dated 5-5-2003 the suit as mentioned above was decreed by considering the stance of the respondent/plaintiff as correct as to the quantum of amount by rejecting the application for leave to defend filed by the appellant. On consideration of the matter, we find that the approach adopted by the learned Banking Court was untenable factually and legally inasmuch as the assertions made by the appellant Bank and grounds for leave to defend urged in the petition warranted due consideration and such a summary disposal of the suit was not called for when there was a serious dispute and controversy involved as to the amount due from the respondent/plaintiff. The judgment so rendered by the Banking Court in such a manner is unsustainable to the extent it dismissed the petition for leave to defend. The result thereof is that the application filed by the appellant/Bank for leave to defend will be deemed pending, which shall be heard and decided by the learned Banking Court-II, Faisalabad keeping in view the governing principles in accordance with law. The appeal is accepted to this extent with the observation that the amount already deposited by the respondent/plaintiff will be adjustable as per the ultimate determination of the liability by the Court. No order as to costs.