' NAEEM AKHTAR AFGHAN, J.---This appeal has been filed by the appellants challenging the judgment and decree dated 31-7-2007 passed by the Judge Banking Court Balochistan Quetta in Suit No,145 of 2006 filed by the respondent/ plaintiff bank, whereby while refusing the appellants' leave to defend the suit, the same has been decreed in favour of respondent/plaintiff bank against the appellants/defendants severally and jointly for an amount of Rs,48,81,695 along with cost of funds at the rate of Rs,5.89 per annum w.e.f. 31-12-2005 till realization of the decreetal amount with cost of the suit.
2. Facts of the case are that the respondent/plaintiff bank filed a suit before the Judge Banking Court Balochistan Quetta against the appellants/defendants for recovery of Rs,37,81,695 as principle amount under the Financial Institution (Recovery of Finance) Ordinance 2001 with markup of Rs,23,27,615.85 at the rate of 9.50% with costs of funds and costs of suit. It was the case of the respondent/ plaintiff bank that the appellant/defendant No,1 was sanctioned loan facility for the sum of Rs,30 Million (the learned counsel for the appellants/defendants stated that the appellant No,1 availed loan facility of (Rs,22 Million), which was repayable till 31-12-2005 with agreed mark-up and the appellant/defendant No,2 stood as personal guarantor for repayment of the loan availed by the appellant/defendant No,1 and both the appellants/defendants jointly and severally executed the relevant documents pertaining to the approval/sanction of the loan. It was contended in the plaint that the appellants/defendants committed persistent default in payment of the agreed mode of adjustment, principle and mark-up amount from 1-1-2006 and a final legal notice for the adjustment of the defaulted amount was issued by the respondent/plaintiff bank, but no response was paid by the appellants/defendants and it was mentioned in the plaint that total sum of Rs,61,09,310.86 exclusive of mark-up is due from the appellants/defendants to the respondent/ plaintiff bank. Due to non payment of advance within due dates and as per terms and conditions of the finance agreement by the appellants/defendants, huge amount was struck up and was not utilized by the respondent/plaintiff Bank which has caused loss to the bank. The bank claimed cost of funds at the rate of 5.89% per annum for the period from the date of first default i.e., 31-12-2005 till realization of the decretal amount. It is further mentioned in the plaint that the appellants/defendants informed the bank authorities that the machinery and hypothecation stock was destroyed due to fire and the mill was already insured, when the bank authorities along with representative of Insurance Company reached at the site it revealed that the appellant/ defendant No,1 has misappropriated the hypothecation stock, which was pledged and the Insurance Company calculated the same at Rs,18.50 Million without any objection. Under protest the above said amount was adjusted by the respondent/plaintiff bank towards the principle amount. The hank made the following prayer:--
(i) Decree for Principal amount of Rs,37,816,95.00 plus mark-up Rs,23,27,615.86, total Rs,61,093,10.86.
(ii) Cost of funds @ 5.89% per annum w.e.f. 31-12-2005 till realization of decree amount.
(iii) Cost of suit and other expenses may also be awarded to the Plaintiff/Bank.
(iv) Any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case, may also be awarded in favour of the plaintiff/Bank, in the interest of justice.
3. After filing of the suit, in pursuance of publication dated 12-12-2006 the appellants/defendants within time filed application under Section 10 of the Financial Institutions (Recovery of Finances)
Ordinance 2001 for leave to defend agitating number of legal objections as well as contesting the claim of the respondent/ plaintiff bank upon merits and also filed certain documents.
4. The learned Judge Banking Court Balochistan, Quetta has passed the impugned judgment and decree in the following words/terms:- "I have heard the arguments of the counsel for the parties and also gone through the record. It may be observed that the defendants instead of Rs,30 Million availed an amount of Rs,22,000,000 from plaintiff Bank along with agreed mark-up which comes to Rs,11,00,000 instead of Rs,23,10,000 and now the total outstanding amount against the defendants in Rs,48,81,695 along with mark-up.
' Under these circumstances the suit is decreed in favour of plaintiff and against the defendants severally and jointly for an amount of Rs,48,81,695 along with cost of funds at the rate of Rs, 5.89 per annum w.e.f. 31-12-2005 till the realization of decretal amount with cost of suit. The decree sheet be drawn accordingly".
5. After hearing the learned counsel for both the parties and after careful perusal of the record with the assistance of learned counsel for both the parties it is noted that in the application filed by the appellants/defendants under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 seeking leave to defend, questions of facts and law were raised and certain documents were also filed and same were also contested by the respondent/plaintiff bank through rejoinder, but perusal of the impugned judgment reveals that the learned Judge Banking Court Balochistan Quetta without discussing/ dilating upon the points of fact and law agitated in the application for leave to defend and without considering the documents available on record has decreed the suit in a slipshod manner without applying judicial mind to the facts and circumstances of the case and has failed to deliver a speaking judgment. The learned judge has failed to give any decision of the points of facts and law agitated by the appellants/defendants in the application for leave to defend which has been contested by the respondent/plaintiff through rejoinder.
' Under the law a judgment must contain reasons that justify the conclusion arrived at and those reasons should be convincing. Moreso a judgment should contain concise statement of the case, points for determination, decision thereon and reasons for each decision, manifesting application of mind by the judge to resolve the issues involved and same should be a speaking, well reasoned judgment reflecting due consideration of facts, law and contention of the parties.
' We are conscious of the fact that under Financial Institutions (Recovery of Finances) Ordinance, 2001 the matters relating to commercial transaction and issues are to be decided in speedy way for which specific procedure and system has been provided within the provision of Ordinance of 2001 but at the same time it is to be observed that in the matters relating to commercial transactions, documents are executed between the parties towards their rights and liabilities which are to be given weight/discussed.
' In the instant case the judgment and decree impugned passed, by learned Judge Banking Court Balochistan, Quetta cannot be termed as a speaking judgment as the learned Judge Banking Court Balochistan, Quetta has failed to give any decision on points of facts and law agitated by the appellant/defendants nor has discussed the documents filed by the parties on record.
' In view of above discussion, the instant appeal is accepted, the impugned judgment and decree dated 31-7-2007 passed by learned Judge, Banking Court Balochistan Quetta is set aside, consequently; the matter is remanded to the learned Judge, Banking Court Balochistan, Quetta, the application filed by the appellant/defendant under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to defend would be deemed to be pending before the learned Judge Banking Court Balochistan, Quetta and same should be decided on merits through a speaking judgment after hearing both the parties, in accordance with law and merits of the case.
' Appeal is allowed with no order as to costs.