' SALMAN HAMID, J.---Through this banking suit, filed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance 2001 (Ordinance 2001), the plaintiff has sought recovery of Rs, 363,040,038 from the defendants jointly and severally along with cost of fund and for sale and attachment of mortgaged and hypothecated properties etc. It was claimed by the plaintiff that in terms of Agreement dated 29-7-2009 (Annexure B/1), it agreed to disburse Rs,300 million, purchase price whereof was settled at Rs,495,680,379. It was further claimed by the plaintiff that this amount was payable by the defendants in 20 equal quarterly instalments commencing one year after disbursement of the finance from 22-11-2005. It was further claimed that the defendants out of 20 equal quarterly instalments paid off five full instalments and also made partial payment of the 6th instalment from 22-11-2005 upto 22-5-2007. Total payments which were made by the defendants came to Rs,94,020,402. Defaults were committed ' by the defendants from 22-5-2007 onwards.
Ultimately notices dated 17-3-2008 and 10-5-2008 were sent for repayment of the outstanding amount/instalments but to no avail. Present suit followed thereafter.
2. Leave to defend application(s) were filed by the defendants within time. It was asserted therein, inter alia that the suit has been filed by an unauthorised person and therefore, it is liable to be dismissed; that statement of accounts was filed in violation of section 9 of Ordinance, 2001 and also in violation of the provisions of Bankers' Books Evidence Act 1891 (1891 Act).
3. Great deal of arguments had been advanced by the learned counsel on above two points and a plethora of case-law was also cited. Besides above two legal arguments, the leave to defend application(s) revolved around that the plaintiff was not entitled to charge any markup, the Assistance being under the Islamic mode of financing that the defendants have suffered losses on account of acts of omission and commission on the part of the plaintiff. It was also mentioned that the plaintiff having failed to provide running finance facility which was essential to run their business and that the payments of long term facility of Rs,300 million was dependant upon provision of running finance facility which did not come forward, the plaintiff suffered losses. It was also asserted that the defendants have from time to time made repayments to the tune of Rs,93,208,646 to the plaintiff and that nothing further was due and payable. It was therefore urged that since substantial questions of law and facts having been raised, in the first instance because of two legal objections, the plaint is liable to be rejected and in the second instance the defendants are entitled to leave unconditionally.
4. I have looked into the file in detail and also the case-law cited by either side.
5. During, the curse of arguments, a question was posed as to the charging of markup/interest at KIBOR rates and why such be allowed to the plaintiff? In answer, learned counsel for the plaintiff submitted that such claim is not pressed and the same was dropped. The plaintiff without prejudice also gave up the claim of repayment rebate amounting to Rs, 82,613,400. It was stated that the total amount which plaintiff so far have received from the defendants comes to Rs, 94,020,402. It was stated that since the resale price of Rs, 495,680,379 is an admitted amount, decree may be passed in the sum of Rs, 319,046,577 with cost of fund in terms of section 3 of Ordinance 2001 after taking out the payments already received by the plaintiff from the defendants amounting to Rs,94,020,402.
6. In view of the above position and for what to follow, arguments of ,the learned counsel for the defendants regarding alleged violation of provisions of section 9 of Ordinance 2001 and that of provisions of 1891 Act would have been looked into and appreciated had there been no admission of execution of Agreement dated 29-7-2009 along with other agreements, repayments thereunder and outstanding amount due and payable by the defendants to the plaintiff. Not at one place but at various places in the leave to defend application(s) the defendants have admitted liability to pay. It was mentioned in para 9 of the leave to defend application(s) that "true calculation would show that the defendants are not liable to anything to the plaintiff' and ultimately under para 15 of "Seriatim Reply" the defendants have stated, "from time to time the defendant No,1 made repayment cumulatively to the tune of Rs,93,208,646." The defendants also filed two calculations one with and other without markup as Annexure `E' & 'ER' to the leave to defend application(s).
These admissions show nothing but availing of finance to the extent of Rs,300 million, purchase price whereof was settled at Rs,495,680,379 out of which according to defendants own showing they have repaid upto Rs,93,208,646 which repaid amount, according to the plaintiff, was to the extent of Rs,94,020,402 (over and above the claim of the defendents). Annexure `E' & 'ER' to leave to defend application(s) are calculations made by the defendants themselves, showing payment with and without markup. The plaintiff having given up the interest at KIBOR rate and also given up repayment rebate and have also subtracted Rs,94,020,402 from the re-sale price of Rs,455,680,379 and have only claimed balance outstanding (Rs,319,046,577), the question of non-fulfilment of provision of section 9 of Ordinance 2001 and that of provisions of 1891 Act are hardly available inasmuch as not only that the defendants have admitted their liability but they themselves have also given calculations as per Annexure `E' and 'El l' to the leave to defend application(s). It may be noted that subsection (3) of section 9 of Ordinance 2001 stipulates that: (a) the amount of finance availed by the defendant from the financial institution; (b) the amounts Paid by the defendant to the financial institution and the dates of payment; and (c) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit. It has amply borne on record that not only the plaintiff only complied with the above provisions by giving amount of finance availed and the amount of finance repaid with dates thereof, the details of other amounts relating to the finance were also given, which on the turn of defendants were admitted at various places in the leave to defend application, particularly in paragraph 3 thereof under the head of "Seriatim Reply to the plaint". Amount of finance together with resale price thereof and instalments paid with dates were admitted without any reservations.
In para 4 it was stated, "It is admitted that long term finance facility of Rs,300 million was sanctioned to defendant/No,1". In para 4(b) re-sale price of Rs,495,680,379 was also admitted.
7. Coming to the second argument that the person who had filed the plaint did not have an authority signally was far fetched inasmuch as that the Authority Letters/Power of Attornies filed with the plaint does not show anywhere or preclude such attorney to file the suit independently.
According to my reading Tehseen A. Mehmoodi was fully competent and empowered to prefer present suit. The argument of the defendants that he had no authority, in view of availability of Power of Attornies on record (Annexure L/2, L/3 and L/4), is of no consequence and the same in therefore, repelled.
8. Since it has come on record that no substantial question of law or fact was raised by the defendants in their leave to defend application(s) and also the fact that they have admitted execution of the Agreement, payment of the instalments and the fact that they themselves have shown in Annexure 'E' & 'Ea to the leave to defend application(s) repayments made and balance recoverable, amounts to admission of liability. The plaintiff have already given up the rebate and other interest and have only claimed the due amount of Rs,319,046,577 which is the amount receivable from the agreed resale price of Rs,495,680,379 in terms of agreement dated 29-7-2005, execution of which was not disputed or denied by the defendants. Leave to defend applications for what has been observed above are therefore dismissed.
9. Under the circumstances, prayer (a) is granted, however to the extent of Rs, 319,046,577 with cost of fund in terms of section 3 of Ordinance 2001. Prayer (b) is also granted for sale and attachment of mortgaged property i.e. Land measuring 196 Kanals, 9 Marlas or thereabout together with buildings, factory, workshop and all superstructures thereon situated at Jasil Wahim, Mang Road, Tehsil and District Muzaffargarh bearing No,5, Khatooni Nos.41 to 43. The plaintiff is also entitled for sale and attachment of the hypothecated properties detailed in Annexure 'I' to the Letter of Hypothecation dated 30 July, 2005 (Annexure D to the plaint).
' Office is directed to prepare final decree in terms hereof.