1. ' NADEEM AZHAR SIDDIQI, J.---The case is fixed for final disposal. The learned counsel for the parties have filed their respective Statements of Accounts.
2. ' The Defendants Nos.1 to 4 have filed Applications for leave to defend the suit which were dismissed vide order dated 27-7-2007 whereas defendant No,5 has not filed any application for leave to defend though served.
3. ' The plaintiff in its statement of accounts claimed'a sum of Rs,66,065,290 receivable from the defendants whereas the defendants Nos.1 to 4 in their statement of accounts claimed a sum of Rs,5,677,198 payable by them to the plaintiff.
4. ' The learned counsel for the plaintiff submits that since the leave to defend the suit has been refused to the defendants the suit of the plaintiff is liable to be decreed as prayed and the defence of the defendants cannot be looked into. He further submits the financial facility was granted to the defendant No,1 in the sum of Rs,102,500,000 for purchase of 25 buses and the Defendant No,1 availed the finance facility of Rs,92,250,000. The re-payment was to be made in terms of agreement dated 22-5-2004 (Annexure 'C' to the plaint). The defendant paid a sum of Rs,2,000,382 till 25-2-2005 and thereafter defaulted in payment of instalments. The plaintiff claims that as on 16-11-2005 as per books of account a sum of Rs,122,714,226 was due and payable by the defendants. The buses were repossessed on 30-9-2005 and were sold and a sum of Rs,33,693,000 was recovered from the sale of the buses. The learned counsel for the plaintiff claims that the bank is not pressing to recover broken period of markup amounting to Rs,2,033,411.
5. ' The plaintiff claims the following amount: -- Total amount recoverable before re- possession of buses99,725,261.00 Less paid by defendants 2,000,382.00 97,724,879.00 Amount received from sale of buses 33,693,000.00 Recoverable 64,031,879.00 ' The defendants submit that they have not availed any financial facility from the plaintiff and has acquired the buses on lease basis and are only liable to pay lease charges in terms of agreement till the date buses were in their possession. The defendants claim that following amount are payable by. Them:-- Rental for first six months @ 769,224.00 per monthRs.4,615,344.00 Rentals for next six months @ Rs.2,218,706.0013,312,236.00 17, 927, 580.00 Less Down payment 10,250,000.00 Payment made 2,000,382.00 Total repayments 12,250,382.00 Net payable5,677,198.00 ' In reply, the learned counsel for the plaintiff submits that the contention of the defendants was repelled vide order dated 27-7-2007 and refer to paras.21, 25 and 27 of the said order and the same contention cannot be considered at this stage in absence of leave to defend the suit.
6. ' I have heard the learned counsel for the parties and perused the record made available before me.
7. ' The execution of agreement dated 22nd May 2004 is not disputed. The amount financed by the plaintiff for purchase of buses is also not disputed.
8. The contention of the learned counsel for the defendants that they are only liable to pay the lease money for the period the buses remained with them has already been repelled by the Court vide para.25 of the order dated 27-7-2007 while refusing A to grant the leave to defend the suit. Since the leave was not granted the pleas raised by the defendants in their objection cannot be considered. Subsection (11) of section 10 of Financial Institutions (Recovery of Financial) Ordinance, 2001, provides that where the application for leave to defend is rejected or where a defendant fails to fulfil the conditions attached to the grant of leave to defend, the Banking Court shall forthwith proceed to pass judgment and decree in favour of the plaintiff B against the defendant. However, the Court may require any other material to satisfy itself of claim and is not absolved from primary duty of seeing and finding the genuineness of the claim of the bank. In the present case the disbursement of an amount of Rs,92,250,000.00 is not disputed as well as the payment of loss value as provided in Clause 12 of the Schedule attached to the agreement. The defendants agreed that they are liable to pay an amount of Rs,17,927,580 to the plaintiff on account of loss value out of which only an amount of Rs,2,000,382.00 was paid. The defendants committed default and the buses were repossessed and were sold and the amount so received from the sale of the buses were deducted from the total claim and the plaintiff is entitled to recover the balance amount.
9. ' In view of the above the suit of the plaintiff is decreed as follows:-- After adjustment of repayment of loss value97,724,879.00 Less received through sale of buses 33,693,000.00 Payable by the defendants 64,031,879.00 ' Apart from the above the defendants are also liable to pay the cost of fund from the date of judgment till the realization of the amount as certified by the State Bank of Pakistan from time to time.
10. ' Office is directed to prepare the decree as above.