1. ' MS. RUKHSANA AHMED, J.---This order will dispose of C.M.A. No,11316 of 2008 which is an application filed under has contended that the suit of the plaintiff is liable to be decreed as prayed. Keeping in view subsection (11) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. As to the substantial question of law raised by the defendants in respect of which the evidence is required. The contention of the Advocate for the plaintiff is that only contention in field is that plaintiff charged excess of mark-up which according to settled principle of law is not substantial question of law and facts. Further the defendants have failed to fulfil the mandatory requirements/condition as subsections (4) and (5) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The application would be liable to be rejected under the Penal provision provided in the special law being subsections (6) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Further no inability on the part of defendants has been shown as to why they have failed by not complying with the requirement as required in subsections (4) and (5) of the section 10 of the Financial Institutions (Recovery of Finances)
2. Ordinance, 2001 the mandatory condition precedent for filing of the application by a customer under the Ordinance, 2001. Further it has been breach of contract on the part of plaintiff and in the absence of any breach of contract or violation of any provision of the agreement or law by the plaintiff the defendant's application is not maintainable. Reference given by the defendants to Suit No,B-60 of 2008 instituted by defendant No,1 against the plaintiff is based on mala fide as it is ill- disguised attempt to divert the attention of the present recovery proceeding instituted against the defendant. Case of the plaintiff being that or' account of default committed by defendants the plaintiff has sought recovery of sum, which has not been paid by the defendants even after acceptance of the liabilities. The relationship of the plaintiff and defendants are governed by Finance Agreements as mentioned in the plaint and in presence of such written contracts no oral contention has any force in the eye of law. Defendants were required to fulfil their obligations as per term of contract, in which they failed and hence the suit was filed. Plaintiff has sent notice of demand dated 12-6-2008 through Advocate which reply was received the defendant's Advocate on 27-6-2008 both Advocates annexed the same with plaint mark-up charges and all the facilities in term of agreement and sanctioned advices which had been duly signed and accepted by the defendants the charged breakup again have been given by the plaintiff in his replication for all the four facilities. Statement of account of facilities granted have been filed, duly certified as per law.
3. Plaintiffs Advocate is fortified by a decision in a similar case to the present case which had been reported in 2003 SCM R 1156, on the point of admission 2007 CLC 1356 and 2007 CLD 217.
4. After hearing the arguments advanced by both Advocates, the Court is of the view that leave to defend application which has been filed by defendants Nos.1 to 10 is dismissed due to non- compliance of mandatory requirement of subsections (3) and (4) of section 10 of the Financial institutions (Recovery of Finances) Ordinance, 2001 and further due to admission on behalf of defendants towards utilizing the finance facilities and owning the liabilities. Only matter in my view which needs to be settled is the amount due and payable by the defendants. Both the Advocates for the parties are directed to tile their respective breakup statements before this Court for adjudicating actual amount due by defendants to the plaintiff.
5. ' The leave to defend application being C.M.A. No,11316 of 2008 is dismissed accordingly with no orders as to cost.