1. NADEEM AZHAR SIDDIQUI, J. - The plaintiff has filed this suit for recovery of Rs. 181,527,894/-. The claim of the plaintiff is that the defendant is a customer of the plaintiff and has granted initial running financial facility of Rs. 100,000, 000/- (Rupees one hundred million). The defendant executed an agreement for finance for short term on markup basis dated 3.5.2000 and demand promissory note dated 3.5.2000 in the sum of Rs. 132,232,876/-. It is stated in the plaint that time and again the plaintiff has requested the defendant to settle the outstanding amount but no. Response was received. In the plaint it is further stated that the defendant in its accounts as well as through correspondence admitted to have obtained financial facilities from the plaintiff.
2. The defendant after service filed C.M.A. No. 2736 of 2004 for obtaining leave to defend the suit in the shape of written-statement. Preliminary objection with regard to the maintainability of the suit has been taken alongwith other legal objections. In the para-wise reply the defendant has submitted that the defendant is not a customer of the plaintiff and has never requested for availing financial facility and the plaintiff acted in collusion with the ex-Chairman of defendant and that the defendant' was not the beneficiary of the financing facility and ex-Chairman of the plaintiff-bank who was also the Chairman of defendant-bank and 12 others financial institutions simultaneously embezzled various amounts from the institutions for raising equity for his group companies. It was further stated that the ex-Chairman pressurized the defendant to sign a set of documents in blank in favour of plaintiff-bank for creation of running finance facility.
3. Replication has been filed on behalf of the plaintiff and it has been submitted that the suit was properly filed and is not barred by any law and the plaintiff has extended financial facilities to the defendant, which is admitted through correspondence.
4. The learned counsel for the defendant has taken the following points:-
(1) The defendant is not a customer of the plaintiff hence suit is not maintainable.
(2) The persons who have signed, the plaint are not legally authorized.
(3) The defendant is not a beneficiary of the financial facility and, in fact, the ex-Chairman of the defendant-bank who was also the Chairman of the plaintiff-bank has availed the financial facilities.
(4) The defendant was pressurized by the then Chairman to execute documents in blank.
(5) The plaintiff is not entitled to claim any amount in excess of the amount mentioned in the agreement (Annexure'A/1 to the plaint).
5. In reply to the above points raised by the learned counsel for the defendant the learned counsel for the plaintiff has submitted as under:-
(1) That the defendant has obtained financial facilities on execution of documents and is a customer in terms of clause (c) of Section 2 of Financial Institutions (Recovery of Finances)
6. Ordinance, 2001 (hereinafter referred as the said Ordinance). He further submitted that the facility which was provided by the plaintiff to the defendant is also covered under the definition of finance.
(2) That the suit was filed by the authorized officers of the plaintiff-bank and has drawn my attention to Annexures "G/1" and "G/2" which are the power-of-attorneys executed in favour of the officers.
(3) That the financial facility was availed against execution of documents and the defendant is the actual beneficiary and in case any amount is embezzled by the ex-Chairman of the defendant this is a matter between the defendant-bank and its ex-Chairman.
(3) That the financial facility was availed against execution of documents and the defendant is the actual beneficiary and in case any amount is embezzled by the ex-Chairman of the defendant this is a matter between the defendant-bank and its ex-Chairman.
(4) Learned counsel for the plaintiff has pointed of Annexure "A/1" and "A/2" and contended that the documents were not executed in blank and there was no compulsion oh the defendant from the plaintiff to execute such documents.
(5) That the defendant has to refund the amount within one year and on failure of the defendant to refund the amount within the stipulated period the plaintiff is entitled to charge mark-up at the rate of 18% from the defendant.
7. I have heard learned counsel for the parties and gone through the record made available before me.
8. From the contents of the application for leave to defend it appears that the execution of the agreement and availing facility of loan has not been denied by the defendant. The defendant tried to set-up a defence that all was done under the compulsion of the ex-Chairman and the he was the actual beneficiary of the loan. This plea is against the documents of the .Defendant filed by the plaintiff which are not disputed. The defendant in its letter dated November 5, 2003, addressed to the plaintiff has not denied the financial facility availed by it. In the letter it was only requested to reduce mark-up from 18% to 7 to 8 per cent. It clearly amounts to the admission of financial facility availed by the defendant from the plaintiff. The learned counsel for the plaintiff has also pointed of Annexure "E" to the plaint which is a half yearly report prepared by the defendant in which the defendant has admitted availing running finance facility in Clause 9 of Annexure 'E' the defendant again admitted that short term finance facility was provided by the plaintiff to the defendant. The documents produced by the plaintiff is sufficient to establish that the defendant being a customer has availed financial facility from the plaintiff. In the agreement (Annexure 'A/1 the defendant has confirmed that it has received 100,000,000/- (Rupees one hundred million) from the plaintiff and he further confirmed to purchase .The said goods from the bank at the price of Rs. 132,232,876/-. In the agreement no period for payment of purchase price was specified and in Clause 3 of the agreement it is mentioned that the purchase price shall be payable by the customer to the bank in lump sum equal instalments. Similarly, in the agreement no rate of further mark-up has been specified. From the documents produced by the plaintiff it is proved that the defendant being a customer has availed financial facility and the amount has not been refunded to the plaintiff.
9. Leave to defend is not a matter of routine or right. It depends upon showing plausible defence which may given rise to triable issues. Where no defence is made of on. Facts or in law in the application and defence disclosed is sham or illusory and may not give rise to triable issues, then leave to defend should be refused. In the case in hand the defendant has failed to put forward any plausible defence nor he has been able to raise any triable issues. The defendant has failed to make of a case for grant of leave to defend. The application is, therefore, dismissed. Since the application for leave to defend is dismissed the suit is liable to be decreed. It is an admitted position that by way of execution of the agreement (Annexure-'A/1 to the plaint) the defendant is liable to pay an amount of Rs. 132,232,876/-. Since there is no mention of further mark-up in the agreement itself the plaintiff is not entitled for further mark-up on the purchase price. Furthermore, the agreement was executed in May, 2000 without specifying the date of payment of purchase price, the plaintiff is not entitled to claim any mark-up for the alleged period of default. In view of the above, the plaintiff is only entitled to recover purchase price amounting to Rs. 132,232,876/- mentioned in agreement (Annexure 'A/1' to the plaint) alongwith cost of fund as provided by State Bank of Pakistan from the date of filing of the suit till recovery of the amount. The learned counsel for the plaintiff has placed on record two letters dated July 20, 2004, and June 17, 2005, showing cost of fund for 2004-2005 @ 4.23% and for 2005-2006 3.84%.
10. The suit is decreed in the above terms. Office to prepare decree.