Jawwad S. Khawaja, J.--The appellants-defendants impugn the judgment and decree dated 27.1.2003 passed by the learned Banking Court, Gujranwala, whereby a suit filed by the respondent- Bank for recovery of Rs, 3;17,079/- was decreed against the appellants-defendants jointly and severally with costs and cost of funds. An application filed by the appellants-defendants seeking leave to defend the suit was dismissed by the learned Banking Court.
2. Learned counsel for the appellants has taken us through the aforesaid application for leave to defend and the lower Court record. One of the material grounds urged by the appellants in defence was that they had been defrauded by the Mobile Credit Officer of the respondent-Bank. namely Zahir Ahmad Sipra. According to the leave application they had filed complaints against the Bank functionaries which were addressed to the Wafaqi Mohtasib and also to the senior functionaries of the respondent-Bank. The appellants-defendants also brought on the record the report of an inquiry conducted against the above named Mobile Credit Officer. We have gone through the said report wherein it has been noted that the record of the Bank relating to the last loan allegedly advanced to the appellants reflects foul play on the part of the Manager, Sub- Manager, Accounts Officer and Cashier of the Bank Branch. It was contended on behalf of the appellants with justification that this finding recorded by a functionary of the Bank was by itself sufficient for granting unconditional leave to the appellants to defend the suit. The learned Banking Court has, however, brushed aside the aforesaid inquiry report by observing that "it is very difficult for me to say that bank employees ever committed any sort of fraud with petitioners/defendants".
This observation in our opinion itself recognized the fact that the allegations of fraud leveled by the appellants-defendants require evidence.
3. Learned counsel for the respondent-Bank was not in a position to argue that in the given circumstances the appellants-defendants had not made out a case for grant of leave to defend the suit. He did, however, point out that the appellants had obtained three loans, out of which fraud was alleged only in respect of the third loan amounting to Rs, 77,150/- allegedly disbursed by the Bank to the appellants on 27.5.1995. As to the two earlier loans of Rs, 68,100/-disbursed on 12.1.1995 and Rs, 61,925/-advanced on 26.3.1995, it was submitted that there was no dispute. Learned counsel for the appellants also conceded that the first two loans had been availed by the appellants defendants. He also acknowledged that the appellants had expressed their willingness to replay the first two loans under an incentive scheme issued by the respondent-Bank for the benefit of defaulting borrowers but the respondent-Bank had refused to receive the application of the appellants due to the pendency of the present litigation.
4. In view of the foregoing discussion, we are of the opinion that the appellants had made out a good case for grant of leave to defend the suit in respect of the third loan amounting out Rs, 77,150/-. As to the other two loans, no defence has been made out or urged before us on behalf of the appellants-defendants. In the circumstances, the impugned judgment and decree are set aside. The application of the appellants is allowed and leave is Ranted to them to defend the suit as regards the third loan amounting to Rs, 77,150/-. This leave shall be subject to the deposit with the respondent-Bank within 60 days from today, of the two sums of Rs, 68,100/- and Rs, 61,925/- which admittedly were received by the appellants-defendants by way of loan from the respondent-Bank.
5. This appeal is allowed in the above terms. The lower Court record shall be sent back forthwith.