' MUHAMMAD TASNIM, J.---This suit has been filed by the plaintiff under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called "Ordinance 2001") for a Decree in the sum of Rs,5,68,77,200 with a prayer for a decree for sale of mortgaged property for appointment of receiver for properties mentioned in the plaint with costs of funds at the prevailing rates from the date of default till its realization along with costs of the Suit.
2. The facts giving rise to the present suit as per plaint are summarized as under:
3. That at the request of defendants plaintiff-Bank vide sanction advice dated 14-11-2003 granted running finance facility of Rs,10 Millions. For the aforesaid running finance facility agreement of finance dated 17-12-2003, promissory note, personal guarantees by defendants Nos.2 to 6, letter of hypothecation dated 17-12-2003 were executed by defendants and delivered to the plaintiff. That again at the request of defendants, plaintiff-Bank vide sanction advices dated 8-5-2004, 13-5- 2004 and 27-10-2004 granted excess over limit of running finance facility upto Rs,20 Million and in consideration thereof defendants executed and delivered to the plaintiff-Bank agreement of finance, promissory note, personal guarantees, letter of hypothecation. Once again at the request of defendants, the plaintiff-Bank vide sanction advices dated 10-3-2005, 2-8-2005, 26-8-2005, 28- 9-2005 and 21-11-2005 granted excess over limit of the finance facilities upto Rs,20 Millions for fixed periods of 15 days each under the agreement of finance dated 6-11-2004, which were upto the period ending on 31-10-2005, which have been paid off by defendants. Once again at the request of defendants plaintiff-Bank vide sanction advice dated 22-2-2006 granted, renewed and enhanced running finance facility upto Rs,50.654 Million and in consideration thereof the defendants executed and delivered to the plaintiff agreement of finance, promissory note, letter of guarantees. To secure the above finance facilities, defendants also created registered mortgage by executing registered mortgage deed dated 2-1-2004 for the property mentioned in the plaint.
Defendants availed the running finance facility in full, but in spite of their promises made vide their letters dated 1-1-2007, 9-4-2007 and 16-5-2007 failed to liquidate their liability towards the plaintiff-Bank, therefore as on 31-3-2007 defendants were liable to pay to the plaintiff-Bank a total amount of Rs,56.877 Millions outstanding in their accounts. For the recovery of the same, present suit was filed.
4. After service of summons upon the defendants, defendants appeared and filed leave to defend application being CMA No,1002 of 2007, wherein defendants raised number of preliminary legal objections to the maintainability of the suit, however availment of facility was admitted by the defendants. Defendants also admitted execution of documents by them and delivering the same to the plaintiff-Bank to secure the finance facility. On receipt of copy of leave to defend application, plaintiff-Bank filed replication on 2-2-2008, wherein plaintiff-Bank challenged the maintainability of the application for leave to defend filed by the defendants on the ground that the application filed by the defendants is not in conformity with the provisions of Section 10 of the Ordinance, 2001. Apart from the above, plaintiff-Bank maintained their stand in the plaint and requested for dismissal of application for leave to defend. After hearing the parties, the Court dismissed the application for leave to A defend inter alia on the grounds that availment of facility was admitted, execution of documents were also admitted and application for leave to defend was not in conformity with the provisions of subsection (4) of section 10 of the Ordinance, 2001 hence by invoking section 10(6) of the Ordinance, 2001 application was dismissed. While dismissing leave to defend application, Court ordered the parties to file their respective break up of accounts within fifteen days' time from the date of order. The Court while dismissing leave to defend application had observed as under:-- "At the very out-set, learned counsel for the plaintiff has pointed out that the defendants have failed to seek leave of the Court in terms of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, as the mandatory requirements of subsection (4) of section 10 have not been complied-with.
' On the other hand, the defendants do not deny the availment of facility or the execution of charge documents but only dispute certain unauthorized charges debited to their account by the plaintiff bank in view of this position, since there appears to be no controversy of the nature entitling the defendant to the leave of this Court to defend the suit, the application consequently is dismissed the plaintiff is directed to file break-up of the statement of account, whereas the defendants may point-out the levy of such unauthorized charges. Mr. Nasrullah undertakes to file such statement within 15 days. To come up thereafter."
5. In terms of above order, both the parties filed their break up of claim. After filing of claim, learned counsel for plaintiff was heard, but learned counsel for defendants remained absent. With the assistance of learned counsel for the plaintiff record has been examined. Learned counsel for the plaintiff also explained the entries in the break up of claim. Whereas defendants have filed photostat copy of the ledger maintained by them showing debit and credit entries as per ledger from the period 1-7-2004 to March, 2006, but no unauthorized entry in breakup filed by plaintiff or any unauthorized entry in the statement of account filed by plaintiff was pointed out in terms of order dated 27-3-2009, whereas the plaintiff-Bank has filed break up of their claim, which is as under:-- BREAK UP OF OUTSTANDING AMOUNT.
(a) the amount of Running Finance availed by the defendants from time to time within sanctioned limitsRs.23,11,83,200
(b) the amounts paid by the defendants to the plaintiff and the dates of payments, (as mentioned in Certified Statements of Account) andRs. 18,12,49,000 sub-total of outstanding amount of(Principal)Rs.4,99,34,200
(c) the amount of finance and other amounts relating to the finance payable by the defendants to the plaints upto the date of institution of the suit. (Mark up from 1-4-2006 to 31-10-2006)Rs. 69,43,000 Grand total of outstanding amount Rs.5,68,77,200"
6. An examination of order dated 27-3-2009, whereby leave to defend application was dismissed, the Court had observed that their appears to be no controversy of the nature entitling the defendants to leave of this Court to defend the suit. The application consequently was dismissed and plaintiff-Bank was directed to file break up of the statement of accounts. Defendants were further directed to point out the levy of such unauthorized charges, which learned counsel for defendants had undertaken to file within 15 days' time, but from the perusal of the record, it appears that apart from the photostat copy of the ledger maintained by defendants themselves nothing has been brought on record to point out any levy of unauthorized charges in the break up claim filed by the plaintiff-Bank. Perusal of the break up filed by the plaintiff-Bank clearly shows the amount of running finance facility availed by the defendants from time to time within sanctioned limit, which come to Rs,23,11,83,200. It also shows the amount paid by the defendants to the plaintiff and the dates of payment as mentioned in the certified statements of account which comes to Rs,18,12,49,000. Outstanding total payable by the defendants to the plaintiff-Bank comes to Rs,4,99,34,200. The amount of finance and other amount relating to the finance payable by the defendants to the plaintiff upto the date of institution of the suit i.e., mark-up from 1-4-2006 to 31- 10-2006 comes to Rs,69,43,000. Total amount recoverable by the plaintiff-Bank from the defendants come to Rs,5,68,77,200 The defendants, as pointed out above, neither filed any statement of claim as ordered by the Court nor submitted any statement showing the unauthorized entries in the breakup of the plaintiff-Bank nor learned counsel for defendants appeared on the date of hearing. The breakup filed by the plaintiff-Bank clearly shows the amount availed by the defendants, payment made by the defendants and the markup accrued thereof.
7. In the circumstances of the case, suit of plaintiff is decreed as prayed with costs of funds from the date of default till realization, costs of the suit is also allowed.