' IJAZ AHMED CHAUDHRY, C.J.---Through this single judgment we intend to dispose of this appeal as well as Execution First Appeal (EFA No,1009 of 2010) having commonality of facts viz, the titled Regular First Appeal has been filed challenging the judgment and decree dated 16-3-2006 passed by a learned Single Judge of this Court in C.O.S No,35 of 2004 whereby the suit filed by Corporate and Industrial Restructuring Corporation (C.I.R.C)/respondent No,1 was decreed whereas EFA No,1009 of 2010 has been filed against the execution of the said judgment and decree.
2. Succinctly, the facts of the case are that Messrs Nishat Impex (Pvt.) Limited, Sialkot/respondent No,4 availed finance facility from Habib Bank Limited, Trunk Bazar Sialkot, under agreement dated 31-12-1998, and the said facility was further renewed and enhanced vide agreements dated 1-9- 1999 and 1-9-2000 to the tune of Rs,30,000,000. The appellants and respondents No,2 and 3, being its Directors, stood guarantors on behalf of the Messrs Nishat Impex (Pvt.) Limited whereas appellant No,1 and respondent No,2 mortgaged their certain properties situated in Mauza Fateh Garh Tehsil and District Sialkot. Out of the amount of loan only Rs,21,04,273 was repaid by the loanee and the rest of the amount was not paid within the stipulated time. By virtue of agreement dated 9-12-2003, between C.I.R.C. And Habib Bank Limited, the matter of recovery of loan was taken over by C.I.R.C. Resultantly, C.I.R.C. Filed suit (C.O.S.No,35 of 2004) for recovery of Rs,31,676,549 and for sale and disposal of the mortgaged/charged property against the appellants and respondents Nos.2 to 4.
3. Pursuant to the notices issued in the aforementioned suit, defendants Nos.3 and 5/appellants filed petition for leave to appear and defend the suit (PLA No, 6-B of 2005) on 24-1-2005 wherein they took the plea that they being citizens of the Federal Republic of Germany, were not present in Pakistan at the time of the signing of the alleged documents presented for loan; that they were defrauded by defendants Nos.2 and 4 (respondents Nos. 2 and 3 herein); that they lodged two F.I.Rs, regarding the illegal actions of Sh. Muhammad Amin, defendant No,2; that the documents allegedly prepared for sanction of the loan were the result of fraud played by defendants Nos.2 and 4 in connivance of the Bank officials; that they neither applied for any loan nor they were beneficiaries of the finance facility allegedly approved by the bank; that they neither appeared before the Bank nor consented to any of the resolution of Messrs Nishat Impex (Pvt.) Limited; that their signatures on the documents used for getting loan were forged as they were poles apart from the original signatures which were available on the petition for leave to appeal; that the suit was not maintainable; that the suit was hit by the law of limitation; that the Court seized of the suit of the Corporation had no jurisdiction to entertain and adjudicate upon the said suit and that the Corporation had no cause of action to file the suit against them.
4. Similarly, defendants Nos.1, 2 and 4/respondents Nos.4, 2 and 3 filed a petition for leave to appear and defend the suit (PLA No,7-B of 2005) wherein they took the objections that the suit was not maintainable; that the plaintiff was not competent to file the suit as Chief Executive-of C.I.R.C. Was not appointed by the Federal Government; that transfer and assignment agreement dated 9-12- 2003 was not a legal document as the same was hit by the principle of lis pendence; that no amount was given to the defendants; that the documents used for procuring the loan were fake and forged; that the suit was bad in law due to mis-joinder and non-joinder of necessary parties; that the suit was time barred; that the Court had no jurisdiction to try the suit; that suit was liable to be stayed in terms of section 10 of C.P.C.; that the defendants only mortgaged 44 Marlas of land; that handwritten entries in the liability creating document were fake and fraudulent ; that the plaint was not verified in accordance with law; that the defendants were not obligors; that debt credit entries are factually incorrect; that statement of accounts was not verified in accordance with the Banker's Books Evidence Act; that only liquidated damages could be awarded to the plaintiff and it was not entitled to cost of fund; that defendants Nos.2 and 4 were not the guarantors of the finance facility; that the suit under section 9(3) of the Financial Institutions (Recovery of Finances)
Ordinance 2001 was not competent; that the claim of the plaintiff was in contradiction to the stand taken by the Habib Bank Limited in C.0.S No,35 of 2003; that the documents in question were handed over to the Habib Bank Limited due to the trust of the defendants; that defendant No,1 never asked for renewal and enhancement of Rs,10 millions rather Habib Bank itself added the mark-up of Rs,10 millions and got it renewed; that defendant No,1 only mortgaged land measuring 44 Marlas whereas defendant No,2 did not mortgaged any property and that the documents attached with the suit were result of fraud committed by the Bank Officers/Officials.
5. After hearing the learned counsel for the parties and going through the contents of the petitions for leave to appear and defend the suit, learned Single Judge of this Court dismissed the same vide order dated 3-2-2006 and the matter was adjourned for 6-3-2006 for scrutiny of the statement of accounts filed by the Bank with the suit. After the scrutiny of the statement of accounts, the learned Single Judge decreed the suit vide judgment and decree dated 16-3-2006.
Aggrieved by the said judgment and decree the appellants have filed the titled appeal, in addition thereto they have also filed Execution First Appeal (No,1009 of 2010) against the order dated 11-10- 2010 passed in C.M. No,477 of 2010 in Execution Application No,6-B of 2008 in C.O.S No,35 of 2004.
6. Learned counsel for the appellants contend that the impugned judgment and decree is against law and facts; that the learned Single Judge passed the impugned judgment and decree without taking into consideration the statement of accounts and legal controversies raised by the appellants in their petition for leave to appear and defend the suit; that the learned Single Judge erred in law while holding that all the defendants are liable jointly and severally; that the learned Single Judge omitted to note that the appellants did not fall within the definition of obligors as defined in section 2(h) of the Non-performing Assets and Rehabilitation of Industrial Undertaking (Legal Proceedings) Ordinance 2000; that the learned Single Judge has not adverted to the contentions of forgery, fraud and misappropriation raised by the appellants in their P.L.A; that the learned Single Judge has not attended to the questions in the impugned judgment and decree; that the appellants were not available in the country at the time of alleged execution of documents which were later on used for approval of the so called loan; that the learned Single Judge did not provide an opportunity to the appellants to prove their plea through documentary evidence; that they were away from Pakistan at the time of alleged execution of documents; that the appellants themselves have been defrauded by respondents Nos.2 and 3, in connivance with the Bank Officials, therefore, they can not be held responsible for the lapse which occurred due to malpractices of respondents Nos.2 and 3; that the learned Single Judge illegally accepted the pleadings of respondent No,5 as evidence; that since the appellants were not given ample opportunity to defendant themselves, the statement of accounts remained un-scrutinized and un- rebutted; that the impugned judgment and decree is not tenable; that the suit of respondent No,5 was not maintainable as the same was filed on the basis of documents which were against the norms and precautionary measures taken by the Financial Institution; that the guarantees submitted by respondent No,1 along with the suit were defective in view of the provisions of sections 143 and 144 of the Contract Act; that instead of referring the matter to the handwriting expert for opinion whether the signatures of the appellants on the documents were genuine or not the learned Single Judge himself compared the signatures available on the said documents with those available on the petition for leave to appeal, thus, he acted totally in violation of the law laid down by the Hon'ble Supreme Court of Pakistan reported as "Mst. Akhtar Begum v Muslim Commercial Bank Limited" (2009 SCM R 264) as well as the judgment delivered by this Court in the case of "Mst. Riffat Jehan and another v. Habib Bank Limited and 10 others" (2005 CLD 941); that the statement of accounts annexed with the suit by respondent No,5 was not prepared in line with the provisions of the Banker's Books Evidence Act as each page of the said statement was not verified on Oath; that the impugned judgment and decree is based on surmises and conjectures inasmuch as respondent No,1 has not attached even a single document tending to manifest that the appellants availed loan facilities; that the learned Single Judge has omitted to note that the properties, as claimed by respondent No,1, were never mortgaged; that the learned Single Judge proceeded on wrong hypothesis while awarding cost of funds to respondent No,1 as there is no provision for awarding such cost under C.I.R.C. 2000; that the impugned judgment and decree is based on suppositions and that in case the impugned judgment and decree is not set aside the appellants are bound to suffer irreparable loss and incalculable injury.
7. Learned counsel appearing on behalf of respondent No,1, while defending the impugned judgment and decree, argues that the appellants who stood guarantors being Directors of respondent No,4 for repayment of the loan sanctioned in its favour are Fully liable for return of amount; that in addition to being a guarantor, Sh. Muhammad Azeem (appellant No,1) mortgaged his landed property thus he was responsible for the repayment of the loan; that respondent No,4 was provided loan facility as per request and while approving the said loan all the codal formalities were fulfilled strictly in accordance with law; that seeing with the naked eye it was clear that signatures of the appellants available on the documents used for procuring loan were similar with those available on the PLA filed by them, therefore, there was no need to refer the matter to the handwriting expert; that inaction on the part of the appellants towards the fate of their valuable immoveable properties is meaningful; that the appellants miserably failed to establish .On record that at the time of execution of the documents for loan they were not in Pakistan; that it is not the case of the appellants that they did not visit Pakistan rather they took the plea that they are foreign nationals; that since the appellants did not fulfil their commitments towards the repayment of loan, the learned Single Judge rightly passed the impugned judgment and decree; that respondent Nos.2 and 3 while filing their PLA admitted that documents were handed over to Habib Bank Limited as a trust, thus the question of any forgery or fraud does not arise and that in case the impugned judgment and decree is set aside, the C.I.R.C. Would be deprived of its vested right which accrued to it after 20 years of the sanctioning of loan.
8. Learned counsel appearing on behalf of respondents Nos.2 to 4 submits that the impugned judgment and decree is not tenable as the same was passed in a suit which was filed by an incompetent person for the reason that Chief Executive of C.I.R.C. Was not appointed by the Federal Government, therefore, he was not competent to file the suit; that the transfer and assignment agreement dated 9-12-2003 was not a legal document as the same was hit by the principle of lis pendence; that the learned Single Judge, while decreeing the suit did not take into consideration that no amount was disbursed to the respondents/ defendants, therefore, they were not liable to pay anything to the Bank; that the learned Single Judge did not take into consideration that the suit was hopelessly time barred; that the learned Single Judge erred in law while totally relying on copies of liability creating documents; that the learned Single Judge omitted to note that the statement of accounts filed along with the suit was not verified in accordance with law; that the impugned judgment and decree is not sustainable in view of the fact that suit under section 9(3) of Financial Institutions (Recovery of Finances) Ordinance 2001 was not maintainable; that the learned Single Judge did not take into consideration that the claim in the suit was contrary to the stand taken by HBL in C.O.S No,35 of 2003; that the documents of the properties belonging to respondent No,2 were handed over to the Habib Bank Limited just to show the financial status of respondent No,2 but the same were misused by the Bank Officers/Officials; that the learned Single Judge did not attend to the questions raised by the respondents in their petition for leave to appear and defend the suit; that the statement of accounts in absence of verification or rebuttal by the respondents could not be relied upon and that while awarding cost of fund the learned Single Judge travelled beyond his jurisdiction.
9. We have given our anxious consideration to the arguments put forth by the learned counsel for the parties in support of their respective contentions and have also gone through the record of the suit in addition to the impugned judgment and decree. During the said exercise we have observed that respondent No, 4 firstly availed finance facility to the tune of Rs,20,00,0000 vide agreement dated 31-12-1998. According to the said agreement the loanee was to pay the mark-up price of Rs,2,25,20,548 along with other fee/charges till 31-8-1999. However, the loanee requested for renewal of the loan and a request was also made for enhancement of original facility to further ten million. The request of the loanee was acceded to and vide agreement dated 1-9-1999 the loanee was to pay Rs,3,37,80,822 against the finance facility of Rs,3,000,0000 till 31-8-2000. Again, vide agreement dated 1-9-2000, the facility was renewed and the loanee was required to pay Rs,3,37,80,822 till 31-8-2001. The appellants, along with respondents Nos.2 and 3, stood guarantors for the said loan. Further appellant No,1, respondents Nos.2 and 4 mortgaged landed properties situated in revenue estate of Mauza Fateh Garh Tehsil and District Sialkot. Out of the total availed facility, the loanee repaid only Rs,21,04,273 and did not abide by the terms and conditions of the agreement mentioned above, resultantly, compelling the plaintiff to file the suit against the loanee as well as the guarantoRs, Pursuant to the notices issued in the suit, the appellants filed their petition for leave to appear and defend the suit and took the plea that they never signed the papers and the same were result of forgery and fraud whereas respondents Nos.2 to 4, while submitting their separate petition for leave to appear and defend the suit, took the stance that the documents of the properties were handed over.To the Habib Bank Limited just to manifest the financial status of the loanee. However, the learned Single Judge dismissed both the petitions for leave to appear and defend the Suit on the ground that no substantive question of law and fact was raised in the said petitions requiring recording of evidence.
10. Now adverting to the contentions raised by the learned counsel for the appellants we have noted that their prime grounds are that the documents used for sanctioning of loan on their behalf were forged because they did not sign the said papers as they were away from the country being German national and the learned Single Judge instead of referring the matter to the handwriting expert to ascertain whether the signatures on the documents presented before the Bank were those of appellants, himself proceeded to compare the signatures of the appellants on the documents appended with the suit and those available on the PLA filed by the appellants. In this regard, we have found that the appellants did not attach any document with their PLA with a view to establish that on the date of execution of the documents in question, the appellants were not available in Pakistan rather they took the plea that their cancelled/torn passport was returned to appellant No,1 in June 2007, therefore, it was not possible for them to produce the same at the time of submission of their PLA. It is important to note that the letter dated 13th June, 2007, issued by the Deputy Assistant Director (Immigration), Directorate-General, Immigration and Passport (Headquarter) Islamabad makes it abundantly clear that application for the return of cancelled/torn passport was submitted on 11-6-2007. The said fact makes it crystal clear that the appellants did not make any effort at the time of filing PLA to establish that at the time of execution of documents used for procuring loan they were not in Pakistan. The fact that the appellants are German nationals makes no difference because it is not their case that they never visited Pakistan in the years when the documents were executed for approval of loan. This being the position, the arguments of the appellants on this point are hereby spurned.
11. In so far as the question of non-sending of the matter to the hand writing expert is concerned, suffice it to note that there is no cavil to the proposition that in case of any ambiguity the court should refer the matter to the expert for opinion but it is also equally true that under Order XIII, rule 4, C.P.C. The Court has power to consider all the documents, whether exhibited or not, to arrive at a just conclusion. In the case in hand the learned Single Judge after satisfying himself that the signatures on the documents appended with the suit duly tally with the signatures of appellants available E on the PLA filed by them formed the opinion that they were genuine. Even otherwise, opinion of an expert cannot be conclusive till the time when the same finds support from the relevant documents. It is not necessary for the Court to refer the matter to the handwriting expert in each case rather it is the prerogative of the Court to send the same to the handwriting expert or to form an opinion after bare perusal of the material in question. The said stance of the appellant also does not appeal to reason when the same is put in juxtaposition with the plea of respondent No,3 that the documents of the property were handed over to the HBL as a trust. Another important feature of this case is that the loan was firstly sanctioned in the year 1998 and renewed in the following years i.e. 1999 and 2000 but the appellants did not bother to know the status. Of their property till the time the suit was filed against them. Consequently, we have no hesitation in our mind to hold that the learned trial court had rightly exercised its power to compare the signatures of the appellants instead of sending the same to the handwriting expert.
12. Now coming to the other contention of the appellants that they were defrauded by respondents Nos.2 and 3, we are of the view that on the one hand the appellants owned that all the transactions on their behalf were performed by respondents Nos.2 and 3 while they were away to Germany and on the other they took the stance that respondents Nos.2 and 3, in connivance with the officials/officers of the Bank, defrauded them by preparing forged and fake documents. The appellants have not denied that they were not the directors of respondent No,4 in whose favour the loan was sanctioned. It is important to note over here that appellants and respondents Nos.2 and 3 are close relatives and it is not possible for them to defraud each other rather all of them have tried to swa llow the loan availed by them.
13. Insofar as the contentions of respondents Nos.2, 3 and 4 are concerned, we have noted that on the one hand their plea is that the documents attached with the suit were forged and fictitious and on the other they have pleaded that the documents pertaining to different properties were handed over to HBL as a trust to show the financial status of respondent No,4. It is interesting to note that the said respondents have not made it clear that for what purpose the necessity of showing the financial status of respondent No,4 had arisen. Further, they have admitted that they have business relations with HBL for the last twenty yeaRs, It is not possible for a bank to prepare forged documents as it would not only entail penal action against the delinquents but the reputation of the Institution as a whole would also be at the stake. The documents tendered by the loanee at the time of availing finance facility, at different times, speak volumes about the fact that respondent No,4 got the loan and appellants as well as respondents Nos.2 and 3 being directors of it, stood guarantors against the said loan. Consequently, they cannot get rid off their liability by ignoring all the documentary evidence produced by the bank.
14. Now taking up the plea of the appellants and respondents Nos.2 and 3 that the statement of accounts was not properly verified or scrutinized as they were not given the opportunity to rebut contents thereof, we are of the view that while dismissing petitions for leave to appear and defend the suit filed by the appellants and respondents Nos.2 and 3, the learned Single Judge put off the hearing of the suit for scrutiny of statement of accounts filed by the bank. Further, while passing the impugned judgment and decree, on 16-3-2006, the learned Single Judge has observed that the learned counsel for the plaintiff explained the entries in the statement of accounts with the assistance of Manager Finance according to which after third agreement, on 1-9-2000, the plaintiff disbursed an amount of Rs,49.89 millions to the plaintiff in addition to the penalties of Rs,18,95,727 paid to the State Bank of Pakistan, on 12-11-2001, 20-42-2001 and 24-10-2002. The total finance facility availed by the loanee was Rs,74.895 millions out of which only Rs,47.00 millions were repaid leaving principal outstanding amount of Rs,27.895 million. The said details are duly borne out from the documents produced by the plaintiff along with the suit. Resultantly, it is not open for the appellants as well as for respondents Nos.2 and 3 to urge that the statement of accounts was not scrutinized properly. Even otherwise, it is cardinal principle of law that technicalities cannot be allowed to impede the way of substantive justice rather they should be ignored while determining rights of the parties, the learned Single Judge has rightly done so.
15. Another salient feature of this case is that neither the appellants nor respondents Nos.2 and 3 have ever mentioned in their petitions for leave to appear and defend the suit that the amount claimed by the bank was never credited in the account of respondent No,4, which fact alone is sufficient to determine the liability of the appellants.
16. As a necessary corollary to the discussion made in the fore-going paragraphs, we have no doubt in our mind to hold that the suit was competently filed by respondent No,1 and the same was decreed by the learned Single Judge vide impugned judgment and decree while considering all the pros and cons of the case. On the other hand, learned counsel for the appellants has miserably failed to point out any Material illegality committed by the learned Single Judge while decreeing the suit. Consequently, we find no force in this appeal which is hereby dismissed. The parties shall bear their respective costs.
17. Since the appeal filed by the appellants against the impugned judgment and decree dated 16- 3-2006 has been dismissed, therefore, Execution First Appeal No, 1009 of 2010 has become infructuous and the same is also hereby dismissed as such.