' SHAUKAT UMAR PIRZADA, J.---This appeal is directed against the judgment and decree dated 18- 2-2005 passed by the learned Banking Court No,II, Lahore, whereby the suit of the respondent-bank has been decreed with costs along with the cost of fund in favour of the respondent-bank and against the appellants.
2. Brief facts giving rise to this appeal are that, on 31-1-2003, respondent-bank filed a suit for recovery of Rs,11,79,221.70 against the appellants which was decreed ex parte on 25-3-2003. The appellants filed an application under section 12 of the Financial Institutions (Recovery of Finances Ordinance (XLVI of 2001) (hereinafter referred as Ordinance, 2001) before the learned Banking Court for setting aside ex parte judgment and decree, which was contested by the respondent-bank, but was accepted on 19-11-2003 by the learned Banking Court and consequently, the said ex parte judgment and decree was set aside and the appellants were directed to file petition for leave to defend the suit within the prescribed period. As the appellants failed to file the said petition within the stipulated period, therefore, on the objection of the respondent-bank, the same was dismissed on 18-6-2004 as being barred by time and resultantly, the suit was again decreed in favour of respondent-bank and against the appellants. Feeling aggrieved, the appellants preferred R.F.A.
No,318 of 2004 against the said judgment and decree dated 18-6-2004, which was contested by respondent-bank, but was accepted by this court on 13-12-2004 and the case was remanded back to the learned Banking Court with the direction to consider the petition for leave to defend as pending and decide the same in accordance with law within two months from the first appearance of the parties, who were also directed to appear before the learned Banking Court on 25-12-2004. Meanwhile, in order to stop the execution proceedings, the appellant No,2 deposited Rs,6,00,000 and after setting aside the judgment and decree dated 18-6-2004 by this court, appellant No,2 filed before the learned Banking Court an application under section 144, C.P.C. For the refund of Rs,6,00,000, which he deposited in discharge of partial liability determined through the said decree. The learned Banking Court heard both the applications i.e. Petition for leave to defend the suit and application under section 144, C.P.C. Together and dismissed them through a consolidated judgment and decree dated 18-2-2005, hence, this appeal.
3. Learned counsel for the appellants contends as follows: --
(i) That the suit has not been instituted by the duly authorized person.
(ii) The statement of account filed by respondent-bank is not correct, therefore, no decree can be passed on the basis of the said statement of account.
(iii) The documents allegedly executed by the appellants have not been signed by the appellant No,2.
(iv) No valid mortgage in respect of the alleged mortgaged property has been created in favour of respondent-bank.
(v) The appellants have availed no finance facility.
(vi) Application under section 144, C.P.C. Should have been decided first, but it has not been done in the instant case, thus has rendered the impugned judgment and decree a nullity in the eye of law.
' While concluding his submissions, the learned counsel for the appellants has stated that as serious questions of law and facts have been raised, therefore, the appellants are entitled that their appeal be accepted and consequently the petition for leave to defend the suit be allowed unconditionally and the suit be decided on merits after framing of issues and recording of evidence. Learned counsel for the appellant has relied upon 2003 CLD 606, 2004 SCM R 1956, 2004 CLD 587 and 2005 CLD 1417.
4. Learned counsel for the respondent ,bank has vehemently contested the contentions of learned counsel for the appellants and submitted that the respondent-bank has not been able to recover its claim due to delaying tactics of the appellant despite the fact that the instant suit was filed about 10 years ago. He has contended that the petition for leave to defend has been decided by the learned Banking Court on merit and all the objections/contentions of the appellants raised before this court have been rejected by the Banking Court with sound reasoning and on the basis of the record of the case. He has strongly supported the impugned judgment and decree and has relied upon the same by contending that the appeal be dismissed with costs.
5. We have heard learned counsel for the parties and perused the record.
6. The respondent-bank has filed suit for recovery of Rs,11,79,221.70 with costs of fund against the appellants by contending that appellant No,1 is a sole proprietary concern with appellant No,2 as its sole proprietor. The appellants opened the account with respondent-bank and requested it for the grant of finance facility. This request was accepted and the appellants were allowed by the respondent-bank a running finance facility upto Rs,1.22 million against hypothecation of stock and mortgage of property owned by appellant No,2 measuring 7 Kanals 9 marlas situated in Khasra No,50/1, 51, 52, 53, 54, 55, 61/1, Mauza Khudpur Islamnagar Multan Road, Tehsil and District Lahore which was gifted to him by his father, namely, Ghulam Muhammad vide Mutation No,2832 dated 31-12-1995 as per extract of record of rights dated 12-5-2002. Mark-up on the said facility as agreed, was at the rate of 0.761 Paisa per thousand rupees per day. In order to secure this facility, the appellants executed various charge and security documents in favour of respondent-bank, which have been described in paras 4 and 5 of the plaint that also included registered mortgage deed and general power of attorney executed by the appellant No,2 in favour of respondent-bank.
As the appellants could not discharge their liability as per commitment, therefore, the following amounts stood outstanding against them:-- ' Principal amount Rs,997818.78 ' Mark-up Rs,181402.92 ' Total outstanding Rs,1179221.70
7. The disbursement of the facility to the appellants by the respondent-bank and the quantum of liability outstanding against them is reflected in the statement of account, which has been filed by the respondent-bank with the plaint. As pointed out above, prior to passing of the impugned judgment and decree dated 18-2-2005, this suit has been decreed twice by the learned Banking Court, firstly ex parte on 25-3-2003, which was set aside on 19-11-2003 at the instance of the appellants and subsequently, on 13-12-2004, when decree of the learned Banking Court dated 18- 6-2004 was again set aside by this court on the appeal preferred by the appellants (R.F.A. -No,318 of 2004) and the case was remanded to the learned Banking Court for decision afresh. The contentions raised by the appellants that the suit is not instituted by a competent person, is without force, as the same has been filed and signed by Branch Manager, Syed Zawaar Hussain, who is fully authorized under section 9(1) of the Ordinance, 2001, which reads as follows:-- "9.Procedure of Banking Court.(1).--Where a customer or a financial institution commits a default in fulfilment of any objection with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other office of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise."
' The learned Banking Court has rightly held that the suit is validly instituted by the said manager, who is also happened to be the attorney of the respondent-bank. This view is also supported by the judgment rendered in the case titled Faysal Bank Limited v. Genertech Pakistan Ltd. And 6 others 2009 CLD 856, the relevant extract from the same is as under:-- "The learned counsel for defendant No,3 has taken the objection that the suit has not been filed or verified by a duly authorized representative on behalf of the plaintiff-Bank. The instant suit has been filed through and signed and verified by Messrs Sheraz A. Chaudhry and Ahmad Nauman Khan. Two separate powers of attorney in favour of the above said officers of the bank have been executed by the plaintiff bank, which are on the record, authorizing them to file the suit and sign and verify the pleadings. Even otherwise, Mr. Sheraz A. Chaudhry is apparently the Branch Manager of the Branch concerned which is obvious from a certificate on the foot of the statement of accounts, appended with the plaint at page 200 thereof. Thus, in view of section 9(1) of the Ordinance, 2001, even if the plaint had been signed by Mr, Sheraz A. Chaudhry alone, it would have been valid in law "
' As regards the contention of learned counsel for the appellants that the statement of account filed by respondent-bank is not correct, is without substance, as the learned counsel for the appellants has failed to point out any error in the entries of the statement of account and has simply relied on the bank note that the present balance not tallying L with the merger computational balance, which note is of no consequence particularly, when the entries contained in the statement of account stood un-rebutted and no specific error has been pointed out therein, which impliedly amounts to admission as to its correctness by the other party. As regards the execution of the charge and security documents, the contention of learned counsel for the appellants is evasive and M vague. However, he has contended that the alleged documents have been executed on different dates, such as 17-12-2000, 19-12-2000 and 20-12-2000, which according to him reflect that these were executed without consideration. This contention is rebutted by the statement of accounts, which is showing that the disbursement of the facility started from 23-12- 2000 on which date amount of Rs,8 lac was availed by the appellants. More-over, mortgage in respect of the mortgaged property has been executed by appellant No,2 in favour of the respondent-bank, which has been registered with the office of Sub-Registrar (Sadar), Lahore at document No,3411 book No,1 on 7-4-2004 and general power of attorney in respect of the same has also been executed by him in favour of respondent-bank. In addition to these documents, appellant No,2 has also executed a memorandum of deposit of title deed in favour of respondent- bank. All these documents form part of security package offered by the appellants to the respondent-bank in order to secure the finance availed by them. Mere disputing the validity of the said documents by not invoking any legal course to have them adjudged forged and fabricated despite the fact that the suit was filed about 10 years ago, effectively belied the defence/contention of the appellants that documents were not executed by them. These documents along with other charge documents mentioned in paras 4 and 5 of the plaint have been executed by the appellants in accordance with law, which hold the field and the learned Banking Court has rightly held the same as validly executed documents. This view is supported by the judgment rendered in the case titled Bank of Khyber v. Messrs Spencer Distribution Ltd. And 14 others 2003 CLD 1410, the relevant extract is reproduced as under:-- "Now coming to the contention raised by the learned counsel. Stance of the defendant No,10 is that she never executed the documents i.e. Letter of guarantee dated 24-4-2001 (page 560) and the mortgage deed dated 17-1-2001 (page 607) attributed to her, as such, she never stood guarantor or mortgagor. Examination of the said documents manifests that the defendant No,10 in fact, signed and executed the personal guarantee, which is also attested by two attesting witnesses, as required under the law, and one of the witnesses is the husband of the defendant No,10. So far as the mortgage deed is concerned, the same has duly been executed by the defendant No,10 through her husband, acting as her attorney, and has also been registered with the Sub-Registrar, Model Town. Not only, but the defendant No,10 has also executed the memorandum of deposit of title deed dated 18-1-1997. The said defendant has simply denied her signature on the aforenoted document, without placing on record any prima facie proof, which could furnish a valid ground for the grant of leave to defend the suit to her. I am of the view that mere bald denial of execution of the documents is not sufficient ground for the grant of leave, unless it is prima facie shown that the documents have been forged and fabricated as noted above according_to the plaintiff defendant No,10 executed letter of guarantee, the mortgage deed and memorandum of deposit of title deeds.
In this regard, judgment rendered by Division Bench of this Court, reported, as Ghazala Arif v. Union Bank Ltd. (Now Emirates Bank International, Lahore 2000 CLC 1201, can be referred, wherein this court in similar circumstances replied the contention raised by the person who denied the execution of documents, the relevant portion would be advantageous to be reproduced below:-- "We are not impressed by this contention of the learned counsel. The bare denial of signatures on the letter of guarantee without any prima facie proof could not furnish a ground for the grant of leave to appear and defend the suit. If the arguments of the learned counsel that in all cases, where signatures on the documents are denied, leave must be granted is accepted, it would result in defeating the very purpose for which the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has been promulgated.
' Another aspect of the case is that the said defendant failed to assert or place on record any material to show that these documents were either forged by the plaintiff or by the remaining defendants. It has nowhere been alleged by the said defendant, that her signatures were forged by the plaintiff-bank or its functionaries. It has nowhere been denied that defendant No,1 did not avail the financial facilities. Mere vague denial of the execution of the documents would not absolve the said defendant from liquidating the liabilities, incurred by her through the execution of the personal guarantee and the mortgage deed. Needless to mention that the defendant No,10 had not challenged the statements of accounts appended along with the plaint, neither any entry in any of the statements of accounts has been disputed.
' In the existence of the aforementioned charge and security documents as well as the un-rebutted statement of accounts, the contention of learned counsel for the appellants that they have availed no finance facility and whatever they availed, have been re-paid to the respondent-bank is not only contradictory but also false and belied by the record. Therefore, the learned Banking Court was Justified while holding the charge and security documents executed by the appellants in favour of the respondent-bank as validly executed.
' As regards the appellants' contention that the application under section 144, C.P.C. Should not have been decided along with the petition for leave to defend the suit rather the same should have been decided first, is a mere technical objection without entailing any serious consequences and of no substance, particularly, after rejection of their petition for leave to defend the suit and passing of the impugned judgment and decree by the learned Banking Court. It goes without saying that learned Banking Court has also rightly rejected the appellants' application under section 144, C.P.C.
Furthermore, learned counsel for the appellants has miserably failed to make out a case for our intervention in the impugned judgment and decree passed by the learned Banking Court, which otherwise is well reasoned, based on record and in accordance with law.
8. In view of the above, the appeal in hand is dismissed with costs throughout and the impugned judgment and decree dated 18-2-2005 passed by the learned Banking Court are upheld.