' NISAR MUHAMMAD SHAIKH , J . - --This appeal is directed against the order dated 15-8-2009 and decree dated 10-9-2009 passed by the learned Judge, Banking Court No,IV, Karachi whereby he dismissing the application of defendants/appellants for leave to defend the suit, decreed such Suit No,36 of 2007 of plaintiff/respondent against the defendants/appellants to the tune of Rs,994,694 as prayed, with cost.
2. The relevant facts of the case, briefly stated, are that the plaintiff/respondent Crescent Leasing Corporation Ltd. Filed a suit for recovery of Rs,994,694 under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 stating that the plaintiff being a leasing company provided lease financing facility of a Mini Truck of 2004 model to the defendant No,1 /appellant No,1 namely Noorul Islam for his personal/ business purpose vide lease agreement dated 18-5-2004. The agreed rental for such facility was Rs, 20,141 per month commencing from 24-5-2004 and total amount of Rs,1,208,460 was payable in sixty (60) monthly rentals. Such documents including vehicle lease agreement were executed by defendant No,1 as a customer while the defendant No,2 executed personal guarantee as his guarantor. It was alleged that the defendants failed to discharge their liabilities as, on the day of filing this suit (i.e. 7-2-2007), the following rentals/dues were outstanding and payable by them:-- Lease No. of Rental PayableNo.
Rental PaidBalance Rental OutstandingTotal Rental PayableRental Amount PaidUnpaid RentalTotal Payable CFL//L/7305/460 15 45 1,208,460302,144 906,316906,316 Bounced Charges 2,700 Additional lease rentals 85678 Total Rupees............. ................................. ................ .............. .............. 2,700 85,678 994,604 ' It was further alleged that since the defendants were not paying lease rentals and also avoided to hand over possession of the leased vehicle, therefore, the plaintiff itself sent a notice and then also served a legal notice dated 20-10-2006 but defendant failed to discharge their financial/ contractual obligation hence the aforesaid lease agreement stood terminated by virtue of legal notice and filing of the suit. The plaintiff, therefore, prayed for the following relief:-
(1) "A sum of Rs, 994,694 jointly and severally against all the defendants together with future rentals till the date of repossession of the leased asset and cost of fund from the date of repossession of the leased assets and until the realization of the decree, besides the final decree for possession of leased asset 01 Unit Master Grant Mini Truck, Registration No,TKD-296, Model-2004, Engine No, 005720, Chassis No, MMC-00193, which is in unlawful possession of the defendants.
(2) Grant such further any other relief; which this honourable Court may deem fit and proper in the interest of justice and equity and under the circumstances of the case, besides the cost of the suit."
3. After service of notice, the defendants filed an application on 17-4-2004 for leave to defend the suit, in which they admitted the execution of the lease agreement, stating that out of total Rs,1,208,460 the defendant No, 1 paid Rs,322,256 but due to slump of business environment and under the heavy losses he could not continue the payment of remaining instalments therefore he made oral request for re-scheduling the instalments but the plaintiff ignored his request. It was further stated that the defendant No, 1 is ready to settle the outstanding payment in easy instalments and that he is ready to pay principal outstanding liabilities as per the agreement after deduction of excess charges/late payment charges/liquidated charges. The defendant No,1 admitted the receipt of legal notice, stating that he then approached the plaintiff to settle or reschedule the payment of finance through easy instalments but he never gave importance to his such request. The defendant in their leave to defend application also raised some questions that the suit merits to be dismissed for noncompliance of section 9(2) and (3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and that the documents in question were in blank pro forma on which their signatures were obtained in violation of provisions of Qanun-e-Shahadat Order, 1984, and that the plaintiff is not entitled to charge over the mark-up/liquidated damages/late payment charges in absence of such clause in the agreement and that the charge of mark-up beyond the period of transaction is illegal and that the claim of plaintiff being contrary to the statement of accounts with colourable calculation of outstanding dues, is against the law and equity. The defendants, therefore, prayed for grant of application for leave to defend on the ground that there are substantial questions of facts and law which need evidence.
4. In reply to the above application of defendants, the plaintiff also submitted that the defendants have not rebutted the entries relating to the payment record as mentioned in the plaint and the same proves their wilful default in payment of agreed monthly rentals. He further submitted that the amount as claimed is due and payable besides the mark up/liquidated charges as defendants are continuously using the leased vehicle without paying agreed monthly lease rentals however, he submitted, no amount has been charged which is mark-up on the mark-up and/or any transaction, contrary to the provisions of lease agreement. Plaintiff also stated that the defendants have not been able to point out a single question of law or fact which requires evidence.
5. We have heard learned counsel for the parties and perused relevant record including the R&Ps of the suit which reveals it, to be an admitted position, that the appellant No, 1 availed the facility of the leased vehicle and agreed to pay its rentals to the respondent at Rs,20,141 per month total amounting at Rs,1,208,460 in sixty instalments. Such documents including lease agreement dated 18-5-2004 were executed between the parties. The statement of accounts filed by the respondent together with a detailed statement of rentals (the copy of which was also-filed by appellants before the trial Court together with a statement of their Advocate dated -12 2007), very clearly shows that out of total sixty instalments the appellant No,1 paid only 15 rentals amounting to Rs,302,144 with effect from 18-5-2004 and the last rental which was due on 24-8-2005 was paid by him vide Cheques No, 0119719 dated 23,9,2005 and thus, the remaining 45 rentals which were due from 24-9-2005 were/are not paid by him. There was no document placed before the trial Court to rebut such factual position. It is also an admitted position that the legal notice dated 20-10-2006 of the respondent was duly served upon the appellant No, 1 . But he failed to reply the same though the respondent had very clearly mentioned in its Para 3 that the appellant. No,1 after payment of 15 rentals has defaulted in payment of remaining rentals in terms of the lease and has been using the leased vehicle of respondent for gain without making payment of its rentals. Not only this, the appellants in the grounds raised in their present appeal, have also not agitated or denied the default in question. On the contrary, in his application for leave to defend itself, the appellant No, 1 pleaded that he could not continue the payment of remaining instalments due to heavy loss in the business, This application, however, could not absolve him of his liability of making due payment and thus, no case for leave to defend the suit was made out by the appellants.
6. The learned counsel for appellants has, however, emphasized the appeal on the ground of repossession of the vehicle contending that the trial Court has failed to properly appreciate the element of such repossession while passing the impugned order. Although the repossession of the leased vehicle, allegedly made on 17-5-2007, could not be a ground of leave to defend the application already filed on 17-4-2007, yet the appellants could seek such amendment for adding new plea/ground of repossession in their earlier application and they could also file such a fresh/additional application or at least an affidavit even, to substantiate their such claim, but the appellant No, 1 simply filed a statement through his advocate, for the first time on 18-12-2007, showing the repossession of leased vehicle allegedly effected by the plaintiff on 17-5-2007 through his agents. It appears from the impugned order that the documents of repossession filed by appellants together with such statement dated 18-12-2007 were scrutinized in depth by the trial Court and so also a letter of respondent dated 6-11-2007 which was placed on record of the trial Court on the same day i.e. 18-12-2007 showing that the Vehicle is not repossessed by them. But, the trial Court came to the conclusion that the document of repossession i.e., receipt dated 17-5-2007 has been prepared for wrongful gain and vehicle has not been repossessed by the plaintiff (respondent). Such finding of the trial Court seems to have been based upon sound reasons and, therefore, the same calls for no interference by this Court in circumstances of the case.
7. In view of the above, we find that no serious and bona fide dispute of triable issues existed between the parties so as to get it resolved by recording evidence and, therefore, the leave to defend the suit was rightly refused and the suit was rightly decreed by the learned trial Court.
Accordingly, this appeal which was found to be of no merit, was dismissed by this court vide a short order dated 16-9-2010 and these are the reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.