SH. AZMAT SAEED, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is directed against the judgment and decree dated 30-5-2006 passed by the Banking Court.
2. Brief facts leading to the filing of this appeal are that the respondent bank filed a suit for recovery of Rs.2,40,921.84 along with cost of suit, mark up and cost of funds against the present appellants.
Pursuant to the notice, the appellants entered appearance and filed their application for leave to defend the suit which did not find favour and was dismissed. The Banking Court passed a decree of Rs.2,40,921.84 along with cost of suit, mark up up to the expiry date and cost of funds till realization of the outstanding liability against the present appellants vide the impugned judgment and decree dated 30-5-2006 which has been assailed through the instant appeal.
3. The learned counsel for the parties have been heard and the record perused
4. It is contended by the learned counsel for the appellants that the loan in question had, inter alia, been secured through hypothecation of stock which was lost. The said stock had been insured and the respondent bank was also a beneficiary of such insurance, therefore, the Bank is only entitled to receive the claim from the Insurance Company. It is also contended that the future mark up could not have been granted. The learned counsel has been unable to show from the documents admittedly executed between the parties that the liability of the appellants would cease in case of loss of hypothecated goods. In the circumstances the defence taken by the appellants at best is illusionary especially as the receipt of the loan of Rs.2,00,000 A is not disputed nor it has been disputed at the bar that a sum of Rs.2,40,000 is otherwise due from the appellants. In the circumstances we consider appropriate that the appellants be granted leave to defend the suit.
However, subject to the condition of deposit of the liability of Rs.2,40,000. Consequently, this appeal is accepted, impugned judgment and decree is set aside, leave is granted to the appellants to defend the suit subject to the deposit of Rs.2,40,000 with the Banking Court seized of the matter within seven days from today. In the event of failure of the appellants to deposit the said amount the leave application shall be deemed to be dismissed and decree shall follow. Appeal accepted and in the above terms.