MIAN SAQIB NISAR, J.---On 25-1-2000, the respondent-Bank brought a suit for the recovery of an amount of Rs.5,367,755.75 against the appellants under the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and' Finances) Act, 1997; the appellants applied for leave to appear and defend, within the prescribed period, which has been dismissed by the learned Banking Court vide order dated 30-6-2001 consequent whereupon the impugned judgement and decree of the even date, has" been passed to the extent of Rs.43,25,292.75, excluding certain amounts claimed by the respondent-Bank as mark-up after the stipulated date.
2. Learned counsel for the appellants contends that very clear, unambiguous and in unequivocal terms objections have been raised in the leave application that the suit instituted by and on behalf of the respondent-Bank is not through an authorized person; the General Manager, who had instituted, signed and verified the plaint, has no authority in this behalf. The learned Banking Court, by relying upon the rule 11 of The Bank of Punjab Act, 1989, has overrule'd the objection, but this provision of The Bank of Punjab Act, 1989, has come under consideration in the judgment of this Court reported as Messrs Ittefaq Industries (Regd.) through Managing Partner and 2 others v. Bank of Punjab through Duly Constituted Attorney 2004 CLD 1356, therefore, on account of the above, the suit' cannot be held to be validly and duly instituted and is liable to be dismissed on this score alone. It is further stated that admittedly, the bank along with the suit had not filed the proper statement of account rather only a recovery schedule was appended thereto, which was seriously objected to, by the appellants and thereafter, the bank produced the detailed statement of account in the year 2Q01, but the appellants were not permitted to raise any objection to the said statement of account. On the basis of above, two fold submissions have been made, firstly that the suit was not supported by a valid statement of account and therefore, in such circumstances, it should have been dismissed in terms of the judgment reported as Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others 2003 CLD 931 and secondly, the appellants in any case, should have been allowed to amend their leave application, so as to take the proper objections upon the statement of account. Besides, it is submitted that in paragraphs Nos.14-A and 14-B, the respondent-Bank has made a clear admission, as to how much amount was disbursed to the appellants and how much was repaid and on account of the two finances, if these amounts are calculated, it stands established that there is no liability of the appellants. Even these vital admissions made by the respondent-Bank have not been kept in view by the learned Banking Court, while rejecting the leave application and passed the impugned judgment and decree.
3. Contrarily, Mr. Muhammad Aqeel Malik, learned counsel for the respondent-Bank states that the statement of account was filed along with the suit; all the grounds, which the appellants now want to raise have been raised in the written arguments, which were propounded by the appellants, after the detailed statement of account was submitted in the Banking Court and have been considered by the Court, resultantly, at this stage, the appellants cannot be allowed to raise the new pleas even if allegedly in the nature of legal.
4. We have heard learned counsel for the parties and find that according to the provisions of section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the leave should Be. Granted to the defendant, if serious and bona fide dispute has been raised; this includes both legal and factual points of controversy. From the narration of the facts given above, it is clear that the objection about the valid institution of the suit and alsO the absence of the statement of account, were vital, on the basis of which the Court should have granted the leave to the appellants. And if the Court was not inclined to take action against the respondent for non-filing of the statement of account, then at least, the appellants should have been asked to file the amended leave application, so as to raise necessary plea about the account statement, after it was submitted incomplete. Moreover, the Court while refusing the leave, has not considered the contents of the plaint about the disbursement and the repayment chart given therein, resultantly, this appeal is allowed, the impugned judgment and decree is set aside; the appellants are permitted to file the amended leave application, only to the extent of challenging in figures therein and not permitting them in any manner to raise any new plea, within a period of fifteen days; the Banking Court shall decide the leave application within a period of two months and if the Court grants the leave to the appellants, in that eventuality, the main suit shall be decided within a further period of three months. The parties are directed to appear before the Banking Court on 18-12-2006.