' MAZHAR ALAM KHAN MIANKHEL, J. ---The plaintiff Bank on dismissal of its recovery suit, filed against the loanee respondent, has filed instant appeal against the judgment and decree dated 20-5- 2006 passed by learned Judge Banking Court-I, Peshawar.
2. As per contents of the plaint, a finance facility to the tune of Rs,2,00,000 was extended to the respondent vide sanction advice dated 10-7-1989. A mortgage deed, a letter of hypothecation and a promissory note were executed in favour of the Bank by the respondent, the beneficiary of the finance facility.
3. On failure of the respondent to honour his commitment, the Bank filed a recovery suit under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, (the Ordinance, 2001) wherein an amount of Rs, 93818.95 was shown to be outstanding as on 14-11-2002 along with mark up/costs of fund till realization of the outstanding amount. In addition to the same, the Bank also claimed liquidated damages 20% amounting to Rs,18763.79 and legal charges to the tune of Rs,10,000.
4. The respondent contested the suit by filing an application under section 10 of Ordinance, 2001 for leave to defend the suit wherein the claim of the Bank was categorically denied by alleging it to be fake and wrong. The statement of account was against the law, showing incorrect and fictitious entries. Actually nothing was outstanding against the respondent. The other main contention of the respondent was that the running finance facility once extended to him in the year 1985 was fully satisfied and the same was never renewed, All the claims of the Bank are fictitious.
5. Since the facts alleged in the application for leave to defend were in the shape of specific denial by respondent, so the application of the respondent for leave to defend was allowed and both the parties i.e. The Bank and the loanee led their respective evidence after framing of issues. The plaintiff Bank produced only two witnesses in support of its claim. P.W.1 Muhammad Awais Sethi, Chief Manager Muslim Commercial Bank Limited and P.W.2 Abdul Hafeez, In-charge Credits and the defendant produced only one witness i.e. Shahabuddin son of Tilla Muhammad. The learned trial Court after hearing the parties dismissed the suit of the plaintiff Bank, hence present appeal.
6. The learned counsel for the appellant contended that it has been established on the record that a finance facility in the shape of running finance was extended to the loanee for which finance agreement was accordingly executed between the parties and to secure the finances extended to the loanee, a mortgage deed, a promissory note and a letter of hypothecation were executed by the loanee in favour of the Bank. The Bank through its evidence established the factum of release of finance facility and non-payment of the same by the defendant whereas there was nothing in rebuttal by the defendant but the learned Judge Banking Court by dismissing the recovery suit failed to appreciate the evidence available on the record and requested for setting aside of the same by passing a decree in favour of the Bank.
7. As against that, the learned counsel for the loanee, the respondent, submitted that no doubt a running finance facility to the tune of Rs,2,00,000 was extended to the respondent by the Bank but in the year 1985 which ended on 31-12-1986. An agreement of finance dated 15-3-1986 was duly executed and the loanee accordingly utilized the same but he repaid the entire amount along with its mark up in accordance with the terms and conditions of the agreement. After the expiry of period of agreement, he applied for its renewal on 10-7-1989 but the same was never renewed by the Bank. He next contended, by controverting the statement of account attached with the plaint, that a fake entry of Rs,1,000 was shown to have been paid by the defendent on 16-6-1997 and on the strength of that entry, the state me n of account reflected an outstanding balance of Rs,93818.95 as on 12-11-2002, was totally incorrect. He further submitted that the suit of the plaintiff Bank was hopelessly time barred as the Bank, according to law of limitation, was required to file a suit within a period of three years of the last entry of Rs,1,000 (though which was denied) and requested for dismissal of appeal of the Bank.
8. Learned counsel for the parties were heard and record of the case was perused. The available record on the file would reveal that a running finance facility was provided to the loanee in the year 1985 ending on 31-12-1986 for which an agreement of finance was also executed on 15-3-1986. It has also been established through evidence that after the expiry of the agreed period, the said facility was requested to be renewed in the year 1989 but the same was never renewed. The deposit receipts available on the record ranging from Exh.P.W.1/X-1 to Exh.P.W.1/X-45 were not credited to the account of loanee. Besides this, yet another document in the shape of a certificate issued by the Bank as Exh.D.W.1/1 confirmed the fact that an amount of Rs,67,185.45 in the shape of mark up was excessively recovered from the loanee and on the repeated requests of the loanee, the said amount was refunded to him on 12-11-2002. The cross examination of the Chief Manager i.e. P.W.1 would reflect that he has admitted all the above facts to be correct.
9. The Bank in its plaint has alleged that for the said running finance facility, sanction advice was issued on 10-7-1989 and then the same was renewed vide sanction advice on 3-1-1990. But the statement of P.W.1 in this regard is worth perusal. The said witness has admitted that no agreement of finance for the loan sanctioned on 10-7-1989 was produced by the Bank or placed on the judicial record. Similarly he has also admitted the fact that no finance agreement in the year 1990 was executed by the defendant in favour of the Bank. He also admitted it to be correct that he had not prepared the statement of account Exh.P.W.1/X-1. Neither the same was signed by him nor he was aware of the fact that who prepared the same. Strange enough that the said statement of account did not bear the seal of the branch. The last and most important admission of the said witness would also be worth perusal which is hereby reproduced below:-- "It is correct that when the Bank grants the loan to a party, it obtains a package of documents which consists of agreement of finance, demand promissory note, letter of arrangement etc. It is correct that not a single document has been placed on record pertaining to the so-called facility of 1989 or so-called facility of 1990."
10. Here in this case the entries of the statement of account Exh.P.W.1/X-1 were denied and disputed by the loanee from day one. Once authenticity and correctness of statement of account is challenged, then the Bank is required to prove entries made therein and only production of certified copy of statement of account would not absolve the Bank from proving the entries so questioned.
The Bank has conducted the case in a very casual and careless manner and failed to prove even the existence of loan what to talk of entries of statement of account. The Supreme Court of Pakistan in one of its celebrated judgment rendered in the case of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 Supreme Court 684) held as under:-- "We are unable, therefore, to agree that the mere production of a certified copy of the account was by itself sufficient to charge the defendants with liability. The copy produced was tantamount, however, to production of entries from the original books of account. Those entries could have been admissible in evidence only for the purpose mentioned under the Evidence Act and to the extent therein provided. Section 34 of the Evidence Act provides that "Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
11. The next witness of the Bank was Incharge Credits whose statement is also not supportive to the claim of Bank and he too has reiterated the renewal of finance from January 1989 to December 1989 but the said fact has not been proved through any reliable documentary evidence as discussed above. In reply whereof, what was alleged by the loanee in his application for leave to defend, his statement as D.W.1 has established the fact that running finance facility was once extended to him in the year 1986 and he has accordingly repaid the same through deposit receipts referred above which were not credited to his account.
12. According to law, a plaintiff in a suit can only succeed when the case is proved through cogent and reliable evidence in its favour. Burden to prove is also on the plaintiff. Once the claim in the suit is established on the record, then comes the turn of defendant to rebut the same. When the plaintiff fails to discharge its burden, the only way, in normal course, before the Court is to dismiss the claim of the plaintiff. Here in this case too, the plaintiff has miserably failed to prove its case through cogent and reliable evidence, so the trial Court after appreciation of evidence available on the record has rightly dismissed the suit. The appellant has also failed to point out any misreading or non-reading of the evidence on the record to justify the interference by this Court.
13. The other important aspect of the instant case also cannot be overlooked. Instant suit was brought in the year 2003 by the Bank when the Ordinance, 2001 was in field which provides the application of Limitation Act for the suits under section 9 of the Ordinance, 2001. Section 24 of the same reads as under:- "24. APPLICATION OF THE LIMITATION ACT, 190$ (ACT IX OF 1908).--- (1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908) shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance.
(2) A suit under section 9 may be entertained by a Banking Court after the period of limitation prescribed therefore, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period."
' The above provision of law would reveal that the provisions of Limitation Act, 1908 have been made applicable unlike erstwhile enactments of banking laws. So, every suit to be filed should be within the prescribed period of limitation, if not, then the plaintiff would be requited to satisfy the Banking Court by showing sufficient cause for his not approaching the Court within the prescribed time.
14. Instant case of the plaintiff, according to Article 85 of the Act of 1908, was required to be filed within a period of three years but the suit of the appellant was filed beyond the prescribed period of limitation which is hopelessly time barred. If at all, the last entry of deposit of Rs,1,000 dated 16-6- 1997 (though which was denied by the loanee), if considered to be true then too, the suit of the appellant is time barred and there is no explanation by the plaintiff Bank in this regard.
15. So, in this view of the matter, we are of the considered view that the appellant has failed to establish its case. Hence, the appeal in hand being devoid of substance is hereby dismissed with no order as to costs.