IQBAL HAMEED-UR-REHMAN, J.---Elahi Bakhsh, appellant, has filed this appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against Order dated 13-7-2005 passed by learned Judge Banking Court No.1, Multan, whereby the application of appellant for redemption of mortgage property was dismissed.
2. Brief facts succinctly required for adjudication of this appeal are that the appellant filed a suit for declaration against the respondents before Judge Banking Court No.1, Multan. The respondents/defendants filed an application for leave to defend, which was granted and the defendants filed written statement. In the written statement they contended that the appellant was defaulter of Rs.2,61,447 upto 30-6-2000. During the pendency of suit, on 16-11-2000, the appellant/plaintiffs counsel got recorded his statement and conceded liability of the respondents of Rs.2,61,447 as due on 30-6-2000 and prayed to the Banking Court that the appellant/plaintiff be allowed two years period for repayment in the form of quarterly instalments and that till period of repayment the appellant might not be subjected to any coercive measure. The learned counsel of the defendants got recorded his statement to the effect that the plaintiff/appellant may he allowed to make repayment but the payment must be made in lump sum. The learned trial Court allowed the plaintiff/appellant to make payment of the conceded total liability of Rs.2,61,447 as due on 30-6-2000 in quarterly instalments of Rs.43,574.50 each. Vide order dated 16-11-2000 the plairitiff/appellant deposited the total amount of Rs.2,61,447 in instalments. Thereafter, the respondents moved an application, under section 152, ,C.P.C., for correction of the order dated 16-11-2000 to the effect that a sum of Rs.3,13,736 is outstanding against the appellant/plaintiff till 31-12-2000. The appellant/plaintiff contested that application, which was dismissed for non-prosecution on 21-5-2001. The respondent-Bank did not file any application for restoration. On the other side the plaintiff/appellant after depositing the total amount of Rs.2,61,447 made an application to the Banking Court for redemption of his mortgaged property stating therein that only a sum of Rs.500 was outstanding against the appellant, but the respondent-Bank had refused to receive the same and redeem the mortgaged property. The respondent-Bank contested that application through written reply and contended that the , appellant was required to pay further amount of Rs.1,29,307 as outstanding till. 30-6-2003 plus Rs.15,198 against tubewell account of the appellant till 30-6-2003. The Banking Court dismissed the application of appellant vide order dated 13-7-2005, which has been challenged through this appeal.
3. It is argued by the learned counsel for appellant that the Bank had filed written statement in the suit and had fixed the liability of the appellant to the extent of Rs.2,61,447 upto 30-6-2000, which was accepted by the appellant's counsel through statement recorded on 16-11-2000 and agreed to pay the same in instalments and the learned counsel for respondent-Bank also agreed to the payment of Rs.2,61,447 and accordingly the order dated 16-11-2000 was passed by the Banking Court and the same has attained finality as the same was not challenged in appeal.
4. On the other hand, the learned counsel appearing on behalf of respondent-Bank has argued that the appellant was required to make payment of Rs.1,29,307 in the account plus Rs.15,198 on account of tubewell account were still outstanding against the appellant.
5. We have gone through the written statement filed by the respondent-Bank, statement of counsel for parties dated 16-11-2000 and the judgment and decree dated 16-11-2000. In para.No.1 of written statement the respondent-Bank had categorically stated that the plaintiff/appellant was a defaulter to the tune of Rs.2,61,447 upto 30-6-2000. Thereafter, on 16-12-2000 the counsel for plaintiff/appellant made a statement conceding the liability to the respondent-Bank and sought permission of the Court to make payment of the same in quarterly instalments. The statement of counsel for respondent/defendant was also recorded. He demanded the payment in lump sum. The learned Judge Banking Court vide order dated 16-11- 2000 allowed the appellant/plaintiff to pay the liability of Rs.2,61,447 in quarterly instalments of Rs.43,557.50. The instalments were, to be paid up to 16-5-2002. This judgment and decree of the Banking Court were not challenged by the respondent-Bank and the same has attained finality.
The learned counsel for respondent-Bank has failed to show how the amount of Rs.1,29,307 plus Rs.15,198 could be subsequently added to the above judgment and decree, when it had not been challenged in appeal. The appellant made total payment of Rs.2,61,075 as under:--- Date of payment Amount paid 19-2-2001 42,575 18-10-2001 14,000 31-10-2001 15,000 18-5-2002 30,000 23-10-2002 20,000 4-11-2002 55,000 5-11-2002 24,500 12-11-2002 59,000 Total 2,61,075 Only an amount of Rs.500 remained to be paid, but the Bank refused . To receive the said amount.
The decision of the Judge Banking Court declaring the appellant defaulter cannot be upheld, as he had complied with the judgment and decree dated 16-11-2000 had substantially cleared the liability.
6. In view of the above, this appeal is accepted, the impugned order is set aside and the case is remanded to the learned Judge Banking Court for passing the order of redemption of the mortgaged property after the payment of Rs.500 by the appellant. No order as to costs.