1. ' The appellant is aggrieved and dissatisfied with the impugned order and decree passed by Banking Court No, V, Karachi in Suit No, 456 of 2005 whereby an application under section 10 of the Ordinance XLVI of 2001, filed by the respondents, was rejected. The suit of the appellant was however decreed in a sum of Rs,4,82,890 instead of total outstanding financial liabilities to the tune of Rs,16,60,519.45 on 31st July, 2005, including the liquidated damages.
2. ' The appeal emanates from the following circumstances in which the appellant has filed suit for recovery against the respondents with the following prayer:--
(i) A decree in the sum of Rs,16,60,519.45 with future cost of fund at the prescribed rate of plaintiffs bank payable by the defendants from the date of default till its final payments by the defendants.
(ii) Decree for the amount of Rs,3,32,104 towards the liquidated damages as justified/claimed in para 7 of the plaint.
(iii) Final decree for the sale of aforesaid mortgaged property of defendant No,2 as described in para. 5 of the plaint together with present and future constructions including fittings and fixtures lying therein. In case of insufficiency and deficiency of the decretal amount, the same may be recovered through the personal decree against the defendant No,2.
3. ' After service of summons upon the respondents, an application for leave to defend the suit was filed by the respondent, who categorically admitted Sanction Advice, Finance Agreement and Charge documents. However it was contended that no amount was disbursed under the subsequent Agreement dated 17-4-2001, and therefore claim of the appellant under the subsequent agreement was void. The respondent has further alleged that amount without specification as to exact value was repaid, but was not mentioned in the Statement of Account annexed with the plaint, which was denied by the appellant in their application. The trial Court dismissed the application, decreed the suit of the appellant as stated above.
4. ' We have heard Mr. Zubair Qureshi, Advocate for the appellant and Mr. Sarfraz Ahmed, Advocate for the respondents, and perused the record of the case.
5. ' Basically the respondent's case is raised in the application for leave to defend the suit, wherein it is mentioned, that exact value was repaid under Finance Agreement on 17-4-2001 and the price of Rs,12,22,650 had come to an end on 31-12-2001. Subsequent thereof, the respondents were not liable to pay mark-up, whereas the bank plea is that the finance agreement holds the field automatically, till its termination by the bank.
6. ' As per certificate statement of account on 3-3-2003, Rs,9,91,667.93 were outstanding, whereas mark-up from 1-10-2001 to 31-7-2005 comes to Rs,6,68,851.47.
7. ' The statement filed by the respondents shows mark-up paid from the year 1998 to the year 2001 which is reproduced herein below: Date Voucher No. Amount 26-11-1997 0000001 Rs.6869 2-1-1998 0000002 Rs.8656 22-1-1998 0000003 Rs.7052 10-3-1998 0000002 Rs.6264 8-5-1998 0000002 Rs.7802 30-5-1998 0000002 Rs.5863 13-6-1998 0000002 Rs.3660 10-9-1998 0000002 Rs.3174 6-10-1998 0000002 Rs.13402 19-10-1998 0000001 Rs.8327 18-11-1998 0000001 Rs.10980 31-12-1998 0000002 Rs.26306 (112355)
8. 2-3-1999 0000001 Rs.26261 20-3-1999 0000001 Rs.17351 15-4-1999 0000003 Rs.19602 4-5-1999 0000002 Rs.18705 22-5-1999 0000004 Rs.15717 19-6-1999 0000002 Rs.12555 12-8-1999 0000002 Rs.15500 (125731)
9. 11-7-2000 0000001 Rs.12531 5-8-2000 0000001 Rs.12442 3-10-2000 0000002 Rs.9408 22-12-2000 0000002 Rs.27968 (61999)
10. 6-2-2001 0000002 Rs.37260 12-2-2001 0000001 Rs.7388 21-3-2001 0000002 Rs.33907 14-6-2001 0000002 Rs.13748 8-12-2001 0000002 Rs.33465 (125,768) 425,853 Amount deducted from Export = 31-12-1998 0000003 Rs.19992 22-5-1999 0000003 Rs.52845 Rs.72837 Upon deduction from export, the left over amount was Rs,72,837, whereas a sum of Rs,4,25,853 was payable by the respondent along with cost as well as cost of fund, and, admittedly, after the decree, a substantial sum has been deposited by the borrower. Therefore, the only question that remains for adjudication is regarding the mark-up payable by A the borrower, which has already been manifestly adjudicated upon by the learned Banking Judge. Therefore, no interference is warranted in the impugned judgment. As a consequence of the above discussion, 1st Appeal No,17 of 2006 is hereby dismissed with no order as to costs.