1. ' MUHAMMAD TASNIM, J.--- This is an application under section 10 of Financial institutions (Recovery of Finances) Ordinance, 2001 read with section 151, C.P.C. (hereinafter referred to as "Ordinance 2001") filed by the defendant seeking leave to defend the suit unconditionally.
2. ' The facts leading to this case in short are summarized that the defendants are the customers of the plaintiff-Bank and at the request of the defendants a Finance Facility in the sum of Rs,12,000,000 in the shape of Demand Finance was extended to the defendants by the plaintiff on 26-10-2004. However, on 21-12-004 the aforesaid limit of Rs,20,000,000 was enhanced to Rs,15,000,000. In May, 2005 another Finance Facility being Demand Finance in the sum of Rs,23.000,000 was also extended to the defendants by the plaintiff-Bank. Thereafter, another finance facility being Demand Finance in the sum of Rs,22,000,000 was also extended by the plaintiff to the above said defendants.
3. ' In addition to the above Demand Finance Facilities of Rs,60,000,000 Cash Finance Facility for Rs,11,000,000 was also allowed by the plaintiff to the defendants in January 2007. On 2-3-2007 another Cash Finance Facility was extended by the plaintiff to the defendants in the sum of Rs,4,000,000. Defendants executed numbers of documents including Finance Agreements, Promissory Notes, got properties mortgaged. Executed Memorandum of Deposit of Title Deeds, Agreement of Hypothecated debts and assets, letters of continuity and secured above finance facilities by executing other charged documents in favour of the plaintiff by the defendants.
4. ' As per plaint, the aforesaid finance facilities were availed in full by the defendants, but they did not discharge their liabilities between the parties. The plaintiff has claimed in the suit as under:--
(a) the amount of finance availed by Rs,75,000.000 the Defendants (DF and CF facilities)
(b) the amounts paid by the Rs,2,702,932 Defendant to the Plaintiff-Bank only towards the principal outstanding liabilities, on the dates as per statements of accounts [DF I, II and III and CF Cash & Hypo) facilities)
(c) the amount of finance payable only Rs,72,297,068 to the extent of principal by the Defendants to the Plaintiff Bank upto the date of institution of this suit [DF I, II & III and CF (Cash Hypo) facilities] ' It is the case of plaintiff that numbers of demands were made by the plaintiff to the defendants for discharge of their liabilities but the defendants failed to discharge their liabilities, which has forced the plaintiff to file the present suit for recovery of aforesaid amount.
5. ' After service of summons the defendants filed application under disposal seeking leave to defend unconditionally.
6. ' Learned counsel for the defendants in support of the application under disposal has advanced only one argument that since the defendants have already filed a suit against the present plaintiff before Banking Court at Hyderabad if leave is not granted in this case to the defendants the suit of the defendants before Banking Court shall become infructuous. However, during the course of arguments he has admitted that finance facility of demand finance of Rs,60,000,000 was availed by the defendants. It was also admitted by the learned counsel for the defendant that Cash Finance Facility of Rs,11,000,000 and so also Cash Finance Facility of Rs,4,000,000 were also availed by the defendants. Learned counsel for the defendants has also admitted the execution of documents annexed with the plaint. He has also admitted all such documents which were executed by the defendants and ,delivered to the plaintiff Bank as security against the abovementioned finance facilities. Per learned counsel a suit being Suit No,58 of 2003 before the Banking Court Hyderabad has been filed by the defendants against the plaintiff-Bank wherein certain claims have been raised against the present plaintiff. Learned counsel has further submitted that keeping in view the pendency of the suit of the defendants leave be granted to the defendants unconditionally, so that they may place their case in Court. In support of their case learned counsel for the defendants has relied upon following judgments: ---
(1) Qamaruzzamen Khan v. Industrial Development Bank of Pakistan and others 2009 CLD 460;
(2) Messrs Yussra Textile Corporation and 2 others v. PICIC Commercial Bank Limited 2003 CLD 905;
(3) Abdul Razzaq v. A.D.B.P. 2002 CLD 1707;
(4) Sheikh Muhammad Kashif Zia and another v. Bank of Punjab and another 2004 CLD 388;
(5) Allied Bank of Pakistan Limited v. MRs, Fahmida and 2 others 2004 CLD 110;
(6) Messrs Mohib Exports Ltd. And 4 others v. Trust Leasing Corporation Ltd. 2005 CLD 581:
(7) Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976;
(8) MRs, Yuba Jamil Ansari v. Bank Al-Falah Limited and another 2009 CLD 1177;
(9) Habib Bank Limited v. Messrs Pearl Fabrics Ltd. And 7 others 2009 CLD 1185;
(10) Muhammad Khalid Butt v. United Bank Limited 2003 CLD 911: ' Conversely, learned counsel for the plaintiff has \ submitted that no substantial question of law or facts has been \ raised by the defendants in the leave to defend application, \ same is liable to be dismissed. He has further submitted that availment of facilities has been admitted by the defendants and execution of all the documents is also admitted by the defendants. He has further submitted that admittedly, after availment of finance facilities of Rs,75,000,000 only RS,2,702,932 were paid by the defendants, such amounts have been shown in Paragraph 45 of the plaint. Apart from the abye, nothing has been paid by the defendants to the plaintiff. $:\ ' Learned counsel for the plaintiff invited my attention to Para 57 of the plaint where claim of the plaintiff has been set out. Such claim of the plaintiff has been responded to by the defendants in their leave to defend application in Paragraph 45 wherein availment of Demand Finance Facilities in the sum of Rs,60,000.000 has been admitted. Availment of Cash Finance Facilities of Rs,11,000,000 and other cash finance facility of Rs,4.000,000 have also been admitted. Learned counsel for the plaintiff pointed out that in Para 45 of leave to defend application it has been stated that the defendants have made payment of Rs,1,451,532 and only payable amount by the defendants to the plaintiff is Rs,60,416,338. Learned counsel for the plaintiff further submitted that an examination of the claim of plaintiff in Paragraph 57(a) shows that the amount of Rs,75,000,0 0 was availed as Demand Finance Facility and Cash Fina ce Facility. Against the aforesaid facilities the defendants made payment of Rs,2,702.932 and an amount of Rs,72.297,068 is still recoverable from the defendants by the plaintiff, for which, the present suit has been filed. Learned counsel for the plaintiff prayed that leave to defend application filed by the defendants be dismissed and the instant suit be decreed as prayed. In support of his submissions he has placed reliance on the following judgments:-
(1) Habib Bank Limited v. Messrs SABCOS (Pvt.) 2006 CLD 244;
(2) Zeeshan Energy Ltd. And 2 others v. Faisal Bank Ltd. 2004 CLD 1741;
(3) Shahid Farooq Sheikh v. Allied Bank of Pakistan Limited 2005 CLD 1489;
(4) National Development Finance Corporation v. Spinning Machinery Company of Pakistan Limited 2002 CLD 53;
(5) Industrial Development Bank of Pakistan v. N.T.N. (Pvt.) Limited 2002 CLD 369;
(6) Bolan Bank. Limited v. Baig Textile Mills (Pvt.) Limited and 6 others 2002 CLD 557;
(7) Saudi Pak Industrial and Agriculture Investment Company (Pvt.) Limited, Islamabad v. Mohib Textile Mills Limited Lahore and 3 others 2002 CLD 1170:
(8) National Bank of Pakistan v. Messrs A.I. Brother (Private) Limited and others 2007 CLD 1356;
(9) Messrs Saudi Pak Commercial Bank Limited v.' Messrs Marvi Agrochem (Private) Limited and 9 others 2007 CLD 1374;
(10) H.B.L. v. Crescent Software Products (Pvt.) Ltd. 2009 CLD 412;
(11) International Finance Corporation v. Sarah Textiles Ltd. And 3 others 2009 CLD 761;
(12) Faysal Bank Limited v. Genertech Pakistan Ltd. And 6 others 2009 CLD 856;
(13) Habib Bank Ltd. v. Paragon Industries (Pvt.) Limited and 5 others 2009 CLD 1346;
(14) NIB Bank Limited v. Taha Spinning Mills Limited and others 2010 CLD 635 and
(15) United Bank Limited v. Progas Pakistan Limited 2010 CLD 828.
7. ' I have heard the learned counsel for the parties end have perused the record of this case very carefully.
8. ' During the course of arguments learned counsel for the defendants has admitted availment of finance facilities in the sum of Rs,75,000,000. It has also been admitted in leave to defend application the entire liability was not discharged, however, certain payments were made by the defendants. No substantial question of law of fact has been raised by the learned counsel for defendants, which requires any evidence to be recorded by the Court.
9. ' The Judgments cited by the learned counsel for defendants are distinguishable on facts and do not support the defendant's case in the present -case availment of facilities is admitted, execution of documents is also admitted and it is also admitted that substantial amount is liable to be paid by the defendants to the plaintiff in the leave to defend application. In the circumstances, judgments cited by the learned counsel for the defendants have no bearing of the case in hand.
10. ' With regard to the judgments cited by the learned counsel for plaintiff, they are fully attracted in the facts and circumstances of the case in hand. In the judgments cited by the learned counsel for plaintiff while deciding leave to defend application it has been consistently held by the Courts that if leave to defend application is not in conformity with the provisions of section 10 of the Ordinance 2001, such application is liable to be rejected. It has also been the consistent view of the Courts that once the availment of facilities is admitted and execution of the documents are also admitted. It is for the defendants to show that the entire amount has been paid by the defendants to the plaintiff in the instant have miserably failed to make out any substantial question of law or fact which requires evidence to be recorded, hence judgments cited by the learned counsel for defendants are not applicable to the present case.
11. ' In the circumstances, the present leave to defend application merits no consideration and the same is accordingly dismissed. Consequently, the suit of the plaintiff is decreed as prayed with cost.