1. ' This appeal is directed against the judgment and decree dated 31-5-2007 and 8-6-2007 passed by Banking Court No,V, at Karachi in Suit No,359 of 2006 whereby suit filed by the appellant was decreed in sum of Rs,3,562,038.99, cost of fund was not awarded.
2. ' Briefly the facts leading to the appeal are that the appellant on the request of respondent No,1 granted a Credit Facility of Rs,25 million under Cash Finance in July 2004, the payment was rescheduled enabling the respondent No,1 to adjust the liability during the periodically inspection of the cost of the stock pledged the security, the appellant found that the value of the stock was less than declared by respondent No,
1. To recover the shortfall the respondent No,1 credited a mortgage for repayment of the finance, the liability was not fully adjusted therefore the appellant proceeded to file the suit for recovery of Rs,8.272 Million with cost of funds which was decreed by the Banking Court, respondent was proceeded ex parte and the suit was decreed without costs of fund.
3. ' Mr. Azizuddin learned counsel for appellant has contended that the learned Banking Court has failed to note that under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 cost of funds was required to be paid to the respondent, all payments received from the respondent No,1 were shown in the statement of account on the credit side of the statement along with date of such entry. It is further contended that the loan facility was available by the respondent No,1 extended time to time till finally up to January 2006 at the rate of Rs,14.25% mark up per annum. The respondent No,1 per terms clause 8 of the finance agreement agreed to pay liquidated damages, in failure to adjust the liability and to indemnify the bank from any loss, therefore, the outstanding liability along with the mark up from 9-9-2004 to 30-6-2006 comes to Rs,4904961.01.
4. ' We have carefully examined all the contentions advanced at bar on behalf of the appellant. A finance agreement dated 9-7-2004 was executed between the parties which has gone unrebutted and unchallenged, due to shortfall in the stock the respondent No,1 credited a mortgage for restructuring of the finance facility did not liquidate the liability therefore, all actions arising out of the finance agreement reveals that mark up was charged in accordance with terms and conditions stipulated therein.
5. ' Learned counsel for appellant has contended that the respondent No,1 had failed to adjust the liability outstanding in the quarter from 1st April 2005 to 3rd June, 2005, mark up was charged at the rate of 2% while from 1st July, 2005 to 30th June, 2006 mark-up was charged at the rate of 14.25% per annum on the outstanding liability which the respondent No,1 had agreed to pay, therefore, the entire mark up comes to Rs,4,904,961.01.
6. ' Adverting to the first contention raised by the learned counsel for appellant the purpose of filing of the statement of accounts as envisaged under section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 would be substantially served when the plaintiff/appellant furnished sufficient detail given break-up for the compliance. The conventional manner of filing the statement of accounts in terms of bankers book evidence would be facilitated by conveying such detail to the borrower/customer. In support of the above contention reliance is placed in case of Bela Automotives Limited v. Habib Bank Limited (2005 CLD 893 (Karachi). From the examination of the contents of the plaint it is borne out that the respondent had availed the facility, part payments were made, finance advance was rescheduled. Rescheduling agreement was not only signed by the respondent, subsequent thereof agreed by the respondent per repayment made according to schedule no benefit could be extended in favour of the respondent in view of provision of section 20 and A 118 of the Negotiable Act, 1981. It is well settled law that Negotiable Instruments Act provides that where one person signs and delivers to another, paper stamp in accordance with law, either wholly blank or having written thereon, incomplete negotiable instrument, could presumed to be made, or completed under the Act. The presumptions are attached to the negotiable instruments, inter alia included that negotiable instrument was made or drawn on such date, as is held in the case of Muhammad Arshad and another v. Citi Bank N.A., Lahore 2006 SCM R 1347.
7. From the perusal of the impugned judgment it is absolutely clear that trial Court had committed grave illegality passed the judgment on whimsical grounds without adhering to law, therefore, impugned judgment and decree is hereby set B aside. Appeal is allowed. The appellant's claim in the sum of Rs,8.272 million along with cost of funds by way of sale of mortgage decree of the immovable properties owned by the respondent No,2 is hereby allowed with no order as to costs.