' MUHAMMAD TASNIM, J.--- This is an application (C.M.A. No,7887 of 2010) under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called "Ordinance 2001") filed by defendants seeking leave to defend the suit unconditionally.
2. Brief facts leading to this case, as per plaint, are that defendant Messrs Dewan Sugar Mills Limited is a company incorporated under the Companies Ordinance and it has registered office at Karachi. At the request of defendant, plaintiff-Bank provided a cash finance facility for an amount of Rs,250,000,000 and such facility was sanctioned under letter, dated 28-9-2006. Defendant executed finance agreement dated 5-10-2006 containing the purchase price as Rs,250,000,000 and by bank value amounting to Rs,312,500,000. Defendant also executed letter of pledge, letter of set-off dated 29-9-2006, promissory note for Rs,312,500,000, letter of continuity dated 5-10-2006.
Entire amount was disbursed and was utilized by the defendant in full, but defendant failed to discharge its obligation and did not pay the financed amount along with mark-upto the plaintiff- Bank as agreed. Accordingly demand notice letter, dated 10-9-2009 was served upon the defendant, but to no avail. Finally plaintiff filed present suit claiming the following:
(a) Principal amount of finance availed:Rs.250,000,000.00
(b) Principal amount repaid Rs.72,482,403.86
(c) Balance principal amount Outstanding (a - b)Rs. 177,517,596.14
(d) Mark-up payable till 31-12- 2009 Rs.46,735,732.55 (e)
Amount of mark-up paidNIL
(f) Mark-up outstanding as on 31-12-2009 (d - e)Rs.46,735,732.55 Total Outstanding AmountRs.224,253,328.69"
3. After service of summons, in accordance with provisions of Ordinance, 2001, defendant filed leave to defend application admitting the availment of facility and also execution of all documents annexed along with plaint. After receipt of copy of counter-affidavit plaintiff-Bank filed replication maintaining its stand in the pliant and denied the allegations of the defendant in the leave to defend application.
4. Mr. Saalim Salam Ansari, learned counsel for defendant in support of leave to defend application has submitted that suit has not been filed by the authorized persons hence the suit is liable to be dismissed. He further submitted that mark-up has been charged over mark-up which is not permissible under the law. He further argued that plaint is not in conformity with the provision of section 9 of the Ordinance, 2001 hence same is liable to be rejected. Learned counsel for defendant further submitted that defendant has made excess payment to the plaintiff-Bank hence nothing is payable by defendant to plaintiff, on the contrary defendant has to recover substantial amount for which counter-claim has been filed by the defendant and even court-fee on the counter-claim has been affixed. Learned counsel further argued that statement of accounts filed by the plaintiff- Bank does not contain entries of payments made by the defendant hence defendant has challenged the same through its statement filed as annexure-D to the leave to defend application which has been quoted in paragraph-7 of the leave to defend application. He further argued that mark-up has been wrongly adjusted in violation of law. He further argued that rate of mark-up was wrongly applied. Learned counsel for defendant further argued that cheques given by the defendant to the plaintiff-Bank do not reflect in the statement of accounts and details of such cheques have been given by the defendant in Annexu re "D" to the leave to defendant application.
Learned counsel for defendant further submitted that points raised by the defendant in leave to defend application raise substantial question of law and facts and evidence is to be recorded in the matter. Learned counsel further prayed that a Chartered Accountant be appointed as Commissioner so that he may examine the accounts of the parties and determine the liabilities of the parties. Learned counsel further challenged the legality of the statement of account filed by the plaintiff-Bank along with plaint. He further submitted that facility granted to the defendant was running finance facility hence Bank was not legally allowed to fix the by back price at the time of execution of agreement for the reason that in case of running finance, mark-up is to be applied on daily product basis as per bank practice which has not been followed by the plaintiff-Bank hence entries of statement of accounts require thorough examination which can only be carried out by an expert i.e. Chartered Accountant. Learned counsel for defendant in the end submitted that leave to defend application be granted and defendant be allowed to contest the suit on merits.
5. In support of aforesaid contentions learned counsel for defendant has placed reliance on the following case-law:---
(1) Pakistan Industrial Credit and Investment v. Messrs Bawany Industries Limited PLD 1998 Kar. 400,
(2) The Australasia Bank Ltd. v. Messrs H.S. Mahmood I lassan Akbar and others PLD 1983 Kar. 431,
(3) Habib Bank Limited v. Messrs Ahmed Food Industries (Pvt.) Ltd. And others 2002 CLD 668,
(4) Nazimuddin v. Messrs the Bank of Khyber and another 2005 CLD 647,
(5) Gul Habib v. Habib Bank Ltd. PLD 1983 Pesh, 31,
(6) Industrial Development Bank of Pakistan v. Al-Mansoor Ltd. And others PLD 1989 Pesh. 191,
(7) Allied Bank of Pakistan v. Masood Ahmad Khan 1994 MW 1557,
(8) Citibank N.A., a Banking Company v. Riaz Ahmed 2000 CLC 847,
(9) Habib-ur-Rehman and another v. Judge Banking Court No,4, Lahore and another 2006 CLD 217,
(10) Messrs United Dairies Farms (Pvt.) Limited and others v. United Bank Limited 2005 CLD 569,
(11) Messrs C.M. Textile Mills (Pvt,) Limited and others v. Investment Corporation of Pakistan 2004 CLD 587,
(12) Muhammad Nafees v. Allied Bank of Paksitan Limited and another 2004 CLD 937,
(13) United Bank Limited v. Messrs Ilyas Enterprises and others 2004 CLD 1338,
(14) The Central Bank of India, Ltd., Lahore v. Messrs Tajud-Din Abdur Rauf and others 1992 SCMR 846,
(15) PICIC Commercial Bank Limited v. Spectrum Fisheries Limited 2006 CLD 440,
(16) Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others 2003 CLD 931,
(17) United Bank Limited v. Pak. Leather Grafts Limited and 3 others 2010 CLC 701,
(18) Al-Madina Electric Store v. Habib Bank Limited 2006 CLD 734,
(19) Habib Bank Limited v. A.B.M. Graner (Pvt.) Limited and others PLD 2001 Kar. 264,
(20) Nusrat Textile Mills Ltd. And others v. United Bank Ltd. 2005 CLD 1421,
(21) Qamaruzaaman Khan v. Industrial Development Bank of Pakistan and others 2009 CLD 460,
(22) Umar Hayat v. Agricultural Development Bank of Pakistan 2003 CLD 204,
(23) Abdul Razzaq v. A,D.B,P. 2002 CLD 1707,
(24) Bhatt Export Private Ltd. v. United Bank Ltd. 2004 CLD 389,
(25) Messrs Mohib Exports Ltd. And others v. Trust Leasing Corporation Ltd. 2005 CLD 581,
(26) Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation PLD 1971 SC 550.
6. On the other hand Mr. Arshad Tayebally, learned counsel for plaintiff argued that facility availed by the defendant was not a running finance facility and has invited my attention to the facility advice letter dated 28-9-2006, which shows that finance facility in the nature of "cash finance facility" amounting to Rs,250,000,000 was allowed to the defendant. He has further invited my attention to the other documents executed by the defendant in consideration of above cash finance facility. Learned counsel also invited my attention to annexure-E to the plaint (page-59 of the record), which is the statement of accounts dealing with the principal amount. It clearly shows that in consequence to the facility advice letter dated 28-9-2006 cash finance facility was disbursed to the defendant in the sum of Rs,250,000,000 on 30-9-2006, such statement of accounts also shows all debit and credit entries and at the end of the statement of accounts principal amount recoverable from the defendant has been shown to Rs, 177.517.596.14. Learned counsel for plaintiff has also invited my attention to Annexurc "E/1", (page-63 of the record) which deals with the mark-up charged by the plaintiff-Bank over the cash finance facility granted to the defendant, such mark-up starts from 18-12-2008 to 26-4-2010, which shows an amount of Rs,46,735.732.55 being mark-up recoverable from the defendant. Learned counsel for plaintiff has further submitted that Deewan Group of Companies has number of companies and such other companies were maintaining, number of accounts with the plaintiff-Bank, but the subject-matter of the suit in this case is only the finance facility granted to the defendant by the plaintiff-Bank on account of "cash finance facility" amounting to Rs,250,000,000. He further submitted that for the aforesaid facility fresh documents were executed and such execution has not been denied by the defendant. He further argued that there is no discrepancy, whatsoever, which requires any evidence to be record or needs any probe by the Chartered Accountant. Learned counsel for plaintiff further submitted that leave to defend application filed by defendant is not in conformity of provisions of subsection (4) of section 10 of the Ordinance, 2001. He further argued that claim set out by the plaintiff-Bank in the plaint is in accordance with provisions of section 9(3) of the Ordinance, 2001. He further submitted that claim of plaintiffs has not been denied by the defendant in its leave to defend application. Learned counsel further argued that in the leave to defend application in pares-7 thereof, it has been stated by the defendant that it has made payment of Rs,25 Millions between the periods commencing from October 2005 to September 2006. He submitted that this position is not correct and is not relatable to the finance facility which is subject-matter of this case. Learned counsel for plaintiff further submitted that present cash finance facility was allowed to the defendant on 30 September, 2006 hence no payment should have been made by the defendant from October 2005 till September 2006. He further submitted that the defendant might have made payment of the aforesaid amount, but in some other accounts, but not relating to the finance facility which is subject-matter of this case. Learned counsel for plaintiff submitted that cheques mentioned in annexure-D to the leave to defend application were not deposited by the defendant in the present account that is why they are not reflecting in the statement of account. He further submitted that defendant has deliberately not given the details of the cheques just to misguide the Court and to seek relief. Learned counsel further submitted that leave to defend application merits no consideration and the same be dismissed. In support of his contention learned counsel for the plaintiff has placed reliance on the following case-law:--
(1) Industrial Development Bank of Pakistan, Karachi v. Messrs Zamco (Pvt.) Ltd. And others 2007 CLD 217,
(2) National Bank of Pakistan v. Messrs A.I. Brothers (Private) Limited and others 2007 CLD 1356,
(3) Haji All Khan & Company, Abbottabad and others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362,
(4) United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816,
(5) Messrs Saudi Pak Commercial Bank Limited v. Messrs Marvi Agrochem (Private) Ltd. And others 2007 CLD 1374,
(6) Industrial Development Bank of Pakistan v. Muhammad Ayub and others 2009 CLD 346,
(7) Shahid Farooq Sheikh v. Allied Bank of Pakistan Limited 2005 CLD 1489,
(8) Zeeshan Energy Ltd. And others v. Faisal Bank Ltd. 2004 CLD 1741,
(9) Bank of Khyber v. Messrs Spencer Distribution Ltd. And others 20Q3 CLD 1406, (10)Messrs U.B.L. v. Messrs Sindh Tech. Industries Ltd. And others 1998 CLD 1152, (11)Messrs Malik & Company and others v. Muslim Commercial Bank and others 2002 CLD 1621, (12)Habib Bank Limited v. Messrs Sabcos (Pvt.) Ltd. 2006 CLD 244, (13)Banque Indosuez v. Jet Travels Limited and others 1991 CLC 446, (14)National Bank of Pakistan v. Muhammad Ashraf Sanik and another PLD 1987 Lah. 17, (15)Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275,
(IQ) Muhammad Arshad and another v. Citibank N.A., Al Fallah Building, Lahore 2006 CLD 1011, OM National Bank of Pakistan v. Messrs A.I. Brothers (Private) Limited and others 2007 CLD 1356,
(18) American Express Bank Ltd. v. Adamjee Industries Limited 1995 CLC 880,
(19) Messrs Razzaq & Company v. Messrs Riazeda (Pvt.) Ltd. 1990 CLC 1243,
(20) Siddique Woollen Mills and others v. Allied Bank of Pakistan 2003 CLD 1033.
7. I have heard learned counsel for the parties and have perused the record with their assistance and have gone through the judgments cited at the bar by the respective parties,
8. Now taking up the first contention of learned counsel for defendants regarding competence of persons who had signed the plaint in this suit. Such power of attorneys are in favour of Mr. Minhajuddin Shaikh son of Kamaruddin Shaikh and Mr. Nazimuddin Soomro son of Mir Muhammad Soomro. Learned counsel for defendant has further argued that the bank should have produced along with the aforesaid power of attorneys, the memorandum of articles and the resolution of the board of directoRs, A bear perusal of power of attorneys would show that these power of attorneys have been issued by the plaintiff-Bank itself under its common seal and has been executed by President of the Bank and the same is notarized in accordance with law. The aforesaid power of attorneys in paragraph 10 contains as under:--- "(10) To commence, prosecute, continue and defend all actions, suits or legal proceedings whether civil, criminal or revenue, including proceedings to procure or establish the bankruptcy or insolvency of any person or firm or liquidation or winding up of any company, or otherwise; to appoint Solicitors, Advocates, Pleaders, Vakils and other legal agents; to make sign, verify execute, plaints, petitions, Written Statement, Memorandum of Appeal, applications, tabular statements, Vakalatnamas, Warrants of Authority or any other papers, writings or documents expedient or necessary in the opinion of the Attorney to be made, signed, executed, verified, presented or filed."
9. The last paragraph of the power of attorneys reads as under:-- "In witness whereof, the Common Seal of Saudi Pak Commercial Bank Limited, is hereunto affixed at the Central Office of the Bank at Karachi on this 19th Day of November, 2002 in the presence of Mr. Muhammad Rashid Zahir, President, the person duly authorized by the Board of Directors for the purpose, who has hereunto signed in the presence of."
10. A perusal of above quoted paragraph from the power of attorney would indicate that attorney has been authorized to commence, prosecute, continue and defend all actions, suits or legal proceedings whether civil, criminal or revenue, including proceedings to procure or establish the bankruptcy or insolvency of any person or firm or liquidation or winding-up of any company, or otherwise; to appoint Solicitors, Advocates, etc. It further authorizes the attorney to sign, execute, verify plaints, petitions, written-statement, memorandum of appeal, applications and other allied documents.
11. From the examination of the concluding para of the power of attorney quoted hereinabove, it will be seen that plaintiff-Bank had issued power of attorneys under the common seal of the Bank and the signatories of the plaint were appointed attorneys by President of the Bank, who was duly authorized by Board of Directors for the aforesaid purpose.
12. The judgment cited by learned counsel for the defendants in the case of United Bank Limited (supra) (2010 CLD 701) is distinguishable on facts as in the reported judgment two officers who had signed the plaint had failed to show that Messrs Ayaz Hashim Shamsi Aamir M. Karachiwala who had purportedly granted sub-power of attorney to the other two officers under Clause 14 of the officers power of attorney dated 23-4-2008 had the power to do so or not but in the present case power of attorney was executed in favour of signatories of the plaint by the bank under its common seal signed by the President of the Bank, who was authorized by the Board of Directors for such purpose and was notarized in accordance with law. In this view of the matter the judgment cited by the learned counsel quoted above has no application or relevance with the present case.
13. The other judgment cited by learned counsel for the defendants in the case of The Central Bank Of India Ltd. Lahore v. Messrs Taj-ud-Din Abdur Rauf and others 1992 SCMR 846. In the reported judgment attorney Mr. S.K. Shikari filed suit for recovery against defendants on behalf of the bank who was allegedly holder of power of attorney on behalf of the bank but said Mr. S.M. Shikari at one stage of the proceedings submitted that he had filed the suit on receiving instruction from the appellant bank's Central Office in Bombay, subsequently he made another statement on the same day that he was not in a position to state as to whether the said instructions were supported by under any provision of the Articles of Associations of the Bank and had again on 12-3-1951 stated that the directors of the appellant bank were authorised under Article 116{7) of the Articles of Association of the Bank but neither he produced the alleged letter from the Central Office at Bombay to the Lahore Branch containing instructions to institute the present suit, nor the Articles of Association were produced by the bank. In view of above, suit was dismissed having been filed by an incompetent person but in the present case, as stated above, the persons who signed the plaint were equipped with power of attorneys in their favour by the bank issued under the common seal of the batik hence judgment in the case of The Central Bank of India is distinguishable on facts and does not improve the case of the defendants.
14. The other judgment in the case of PICIC Commercial Bank Limited v. Spectrum Fisheries Limited 2006 CLD 440 wherein proceedings under sections 306 and 305 of Companies Ordinance, 1984 were initiated by the PICIC Bank and said petition was filed by authorized officers who were duly authorized by the President and the Company Secretary of the petitioner under the authority given to them by the board resolution dated 17th March, 2001. In the reported case the Board of Directors had authorized the Chief Executive Officer/President and the Company Secretary of the petitioner as attorneys of the bank who in turn had authorized the person who signed the petition but had delegated their powers to the officers of the Bank. But in the present case the bank had issued power of attorneys in favour of President of the Bank to execute power of attorney for the purpose of filing case in favour of signatories of the plaint hence in this view of the matter judgment relied upon by the learned counsel for the defendants is also distinguishable on facts and does not apply to the circumstances of the present case. The other judgments in the cases of Al-Madina Electric Store v. Habib Bank Limited 2006 CLD 734, Nusrat Textile Mills Limited and others v. United Bank Limited 2005 CLD 1421 and Habib Bank Limited v. A.B.M. Graner (Pvt.) Limited and others PLD 2001 Kar. 264 are concerned all the three judgments are distinguishable on facts and are not applicable to the case in hand.
15.. In the case of Banque Indosuez v. Jet Travels Limited and others 1991 CLC 446 a learned Single Judge of this Court (as he then was) while dealing with the point in issue has held as under:--- ".... On verification it was found that photostat copy of the Power of Attorney was in the name of only one person i.e. Syed Rasheed Akhtar while the plaint is signed by both, Syed Rasheed Akhtar as well as Saleem. Mr. S.A. Sarwana states that due to oversight he could not file Power of Attorney of Saleem. He shows the original to the Court and files a photo copy of the Power of Muhammad Saleem, which is taken on record. The objection is, therefore, repelled. So far as the resolution by the Bank is concerned, it is not necessary to produce the same before the Court at the time of filing of the suit. Mr. Farooque Naek has relied upon the case of National Bank of Pakistan v. Muhammad Ashraf Sanik and another PLD 1987 Lah. 17, wherein a suit filed by National Bank of Pakistan by a person holding Power of Attorney which authorised him to institute/defend any action or other proceedings relating to affairs of Principal, was held to be a proper authority. This ruling would not help the Defendants."
16. In the case of National Bank of Pakistan v. Muhammad Ashraf Sanik PLD 1987 Lah. 17 a learned Single Judge of Lahore High Court (as he then was) while dealing with the aforesaid point in paragraph 21 of the report has held as under:-- "21. The only other contention raised on behalf of the defendants which is left to be considered is the objection as to the competence of the signatory of the plaint to institute the suit on behalf of the plaintiff. Suffice it to say that the certified copy of the registered Power of Attorney in favour of Mr. Zia-ud-Din one of the signatories of the plaint has been placed on record which clearly authorizes him (refer recital 13) to institute/defend etc., any action or other proceedings relating to the affairs of the Bank and it squarely meets this objection. Otherwise also the objection in the light of the case-law cited by the learned counsel for the plaintiff does not appear to have force."
17. In the case of Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275 a learned Single Judge of West Pakistan High Court in the year 1966 while dealing with the point in issue had held that authority of a person who signs the plaint can be questioned by the principal. The learned Judge in the reported judgment has observed as under:--- " In my opinion the fact that the person did or did not have authority can effectively be challenged only by the principal. If in spite of the objections taken the principal continues to recognize the authority of the agent to institute the suit I am inclined to think that this would amount to a ratification and the suit would still be a validly instituted suit."
18. The upshot of the above discussion is that since the plaint in the present suit has been presented by the two signatories who are attorneys and were duly authorized by the bank, it is valid presentation and suit is maintainable under the law. Even otherwise, section 9(1) of Ordinance 2001 provides that financial institution may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise. A bear reading of above provision would show that plaint can be present by a financial institution before a Banking Court duly signed and verified on oath either by a Branch Manager or such other officer of the bank who holds a power of attorney or has been authorized otherwise. In the present case power of attorney has been brought on record which fulfils the requirement of section 9(1) of Ordinance 2001. Accordingly, I hold that suit has been validly filed and the same is maintainable.
19. With regard to the arguments of the learned counsel for defendant that mark-up over mark-up has been charged by the plaintiff-Bank in this case, which is not permissible under the law. This argument of the learned counsel for defendant is not supported by any material available on record. The statement of accounts filed by plaintiff-Bank along with plaint (appears at page No,59) which deals with the principle amount and other statement of accounts annexure-E/i (appears at page 63 of the record) shows that mark-up has been charged over the amount advanced to the defendant in accordance with agreed terms. Learned counsel for defendant failed to point out any entry in the statement of account to support his arguments hence contention of the learned counsel for defendant is repelled for the aforesaid reasons.
20. Next contention of the learned counsel for defendant that plaint is liable to be rejected as the same has not been filed in conformity with the provisions of section 9 of the Ordinance, 2001. A bare perusal of the subsection 3 of section 9 of the Ordinance, 2001 shows that the plaint, in the case of a suit of recovery instituted by financial institution, shall specifically state amount of finance availed by the defendant from the financial institution. It further requires that the amount paid by the defendant to the financial institution be mentioned and the dates of payments may also be mentioned in the plaint. It further requires that the amount of finance and another amount relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit shall also be mentioned in the plaint.
21. Keeping in mind the above provisions of law if plaint of the plaintiff is examined more particular paragraph-8 of the plaint, which has been quoted in the earlier part of this order, it will be seen that plaintiff has specifically mentioned principal amount of finance availed by the defendant, the principal amount repaid, balance principal amount, outstanding markup payable by the defendant till 31-12-2009 and total amount recoverable from the defendant. It fulfils the requirement of subsection (3) of section 9 of the Ordinance, 2001 hence it is held that provisions of subsection (3) of section 9 of the Ordinance, 2001 have been complied with by the plaintiff while presenting the plaint in this suit.
22. Now taking up next contention of learned counsel for defendant that excess payment to the plaintiff-Bank has been made by the defendant and nothing Is payable by the defendant to the plaintiff-Bank. He further submitted that on the contrary defendant has to recover substantial amount from the plaintiff-Bank for which counter-claim has been filed by the defendant and even court-fee on such counter-claim has been affixed.
23. To support the above contention, learned counsel for defendant has invited my attention to paragraph-9 of leave to defend application wherein it has been stated that between the periods from October, 2005 to September, 2006 defendant has made total payment of Rs,250,000,000. It has been further stated in this paragraph that from October, 2006 to September, 2007 an amount of Rs,392,698.936 has been deposited. It is further mentioned that between periods from October, 2007 to September, 2008 an amount of Rs,8,000,000 has been deposited. Lastly it is mentioned that from October, 2008 to September, 2009 Rs,80,764/440 have been deposited. It has further been mentioned by defendant in paragraph-9 of leave to defend application that total amount withdrawn by defendant was Rs,623,054,945 It further shows that an amount of Rs,731,463,376 have been deposited by the defendant. It further reflects that an amount of Rs,108,408,431 is recoverable by the defendant from the plaintiff-Bank. In the same para dates and cheque numbers of three cheques have been shown, which according to defendant, have been deposited by it with the plaintiff-Bank, but same do not reflect in the statement of accounts.
24. Learned counsel for plaintiff while rebutting these entries in paragraph 9 to leave to defend application has submitted that cash finance facility of Rs,250,000,000 was allowed to the defendant per letter dated 28th September, 2006 (appears at page 21 of record). Learned counsel for plaintiff has further invited my attention to annexure-E which is statement of accounts wherein first entry has been shown to have effected on 30th September, 2006 whereby an amount of.
Rs,250,000,000 was credited by the plaintiff-Bank in the account of defendant. Learned counsel for plaintiff has submitted that finance facility was extended to the defendant on the last day of September, 2006 hence any payment made by defendant prior to such date are not relatable to present finance facility, which is subject-matter of this case. He further submitted that defendant is a Group of Companies and their number of companies are maintaining number of accounts with the plaintiff-Bank. He further submitted that defendant might have deposited amount mentioned in paragraph-9 of leave to defend application, but in some other accounts and in relation to some other finance facility, but amount mentioned in paragraph-9 of the leave to defend application were never deposited by the defendant in the present account hence they do not find place in the statement of accounts. Similarly learned counsel for plaintiff has submitted that the cheques mentioned in para under reference might have been deposited by the defendant in some other account, but these cheques were never deposited in the present account from which present proceedings have arisen. In this view of the matter argument of learned counsel for defendant has no force accordingly same is repelled.
25. Other submission of the learned counsel for defendant that statement of accounts file by the plaintiff-Bank does not contain the entries of payment made by the defendant is also not tenable in view of my findings in the above paras.
26. Now taking up the contention of learned counsel for defendant that substantial question of law and facts have been raised by defendant which requires evidence to be recorded. He further submitted that a Chartered Accountant may be appointed to examine the accounts of the parties and to determine the liabilities of the parties. The examination of the statement of accounts filed by the plaintiff-Bank clearly shows that entire finance facility was disbursed to the defendant on 30th September, 2006 and it reflects all payments made by the defendant to the plaintiff-Bank on account of principal in the statement of accounts. Similarly statement of accounts relating to mark-up shows that plaintiff-Bank has charged mark-up from 18th December, 2008 till 26th April, 2010 and present suit was filed on 4-5-2010. In this view of the matter there is no discrepancy in amount which requires any evidence or necessitates appointment of any Chartered Accountant for making enquiry in the accounts of the parties. This case pertains to only one financial facility, which was admittedly disbursed to the defendant, who has admitted such availment of facility in full and has also admitted the execution of documents. The amount paid by the defendant on account of principal reflects in the statement of accounts and nothing has been paid on account of mark-up by the defendant to the plaintiff-Bank hence in my view it does not require any enquiry to be made by an expert namely Chartered Accountant or recording of evidence, hence contention of learned counsel has no force. No substantial question of law or facts has been raised by the defendant in these proceedings.
27. With regard to the submission of learned counsel for defendant that since defendant has raised a calim on account of set-off/counter-claim leave be granted to the defendant by considering the claim of set-off. The argument of learned counsel is opposed to rule laid down by the superior Courts. To deal with the issue, it will be advantageous to reproduce the observation of the Superior Courts on the above point.
28. In the case of American Express Bank. Ltd. (supra) while declining with the leave to defend application learned Single Judge of this Court had observed that defendant is not entitled to leave to defend on the ground that he had counter-claim against the plaintiff. The learned Judge dealt with the above issue in the following words:- "The facts of the above case are similar to the facts of the present case; and respectfully following the judgment of the Division Bench I would hold that the defendant No,1 is not entitled to leave on the ground that it has a counter-claim against the plaintiff.
' In view of the above, it is not necessary to discuss the merits of the defendant's allegation that the pledged goods were sold for less than their proper value.
' The upshot of the above discussion is that the defendant No,1 has failed to disclose any defence.
Consequently, leave to appear and defend the suit cannot be granted to it. That disposes of C.M.A.1443/87 insofar as it relates to defendant No, 1."
29. In the case of Messrs Razaq & Company (supra) learned Division Bench of this Court while dealing with the subject has held as under:--- "As regards counter-claim of the appellants in respect of damage to the consignment exported, that is not germane to the point of issue viz. About grant or refusal of the leave to appeal.
(7) If the pleas being raised by the appellants are accepted for the purpose of granting leave to defend, that would change entire complexion of the suit, making it an ordinary suit and thus frustrating the very purpose for which Order XXXVII was incorporated in the Code of Civil Procedure, containing the provisions comparable to similar provisions in the Rules of the Supreme Court in England. The purpose of legislating the provisions contained in Order XXXVII of the Code of Civil Procedure, has been explained by the Supreme Court of Pakistan in the case of Abdul Karim Jafrani v. United Bank Limited 1984 SCMR 568 in the following words:- ' The overall object envisaged by the legislature was to provide for expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and prevent the plaintiff from obtaining an early decision by raising untenable and frivolous defences.
(8) We find that the appellants have not made out a case warranting interference in exercise of discretion by learned Single Judge. Accordingly this appeal stands dismissed in limine."
30. Finally the honourable Supreme Court of Pakistan in the case of Siddique Woollen Mills etc. (supra) while dealing with the issue has held as under:-- "(4) In the course of arguments we have perused the written statement filed by the petitioners before the Banking Court which was in fact treated as an application for leave to appear and defend wherein liability towards outstanding amount of the respondent-Bank was not denied except raising the plea that the bank has retained the goods of the petitioners unauthorizedly. In our opinion it does not constitute a defence in favour of the petitioners independently nor it give rise to a bona fide dispute between the parties because in such like cases the Court is required to examine the liability and its acceptance by the borrower. As far as question of sustaining losses by the borrower on account of conduct of the Bank is concerned it can be sorted out in some other forum instead of claim relief on such basis from the Banking Court. A Banking Court in exercise of its jurisdiction under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 can only entertain defence of the borrower if prima facie a bona fide dispute has been disclosed."
31. The examination of the above quoted extract from the judgments of the honourable Supreme Court of Pakistan and the High Court it is crystal clear that by raising claim of set-off or counter- claim defendant will not be entitled to grant of leave. If leave is granted on this ground alone, it will change the complexion of the suit instituted under a special law i.e. Ordinance 2001. The claim, if any, defendant has against the plaintiff, can properly be dealt with by the Court of competent jurisdiction including the Banking Court in accordance with law through separate proceedings.
32. The case of Pakistan Industrial Credit and Investment (supra) cited by learned counsel for defendant does not deal with leave to defend application, but it is the judgment after recording of evidence of the parties and in such case there was dispute about over payment hence Commissioner for taking accounts was appointed. The judgment cited by learned counsel is not attracted in the circumstances of the case as the same is distinguishable on facts.
33. In the case of The Australasia Bank Ltd. (supra) cited by learned counsel for defendant, once again it does not pertain to leave to defend application, but it is a judgment by the Court and while passing preliminary decree Court held that plaintiffs, in the reported judgments, were holding account and all the documents necessary for rendering account. Considering the facts of the case and relationship between the parties the plaintiffs were the accounting party. In order to ascertain the money due to the plaintiffs from the defendants jointly and severally plaintiffs were directed to render true and correct account before the Commissioner. The judgment cited by learned counsel does no apply in the circumstances of the case as the same is distinguishable on facts.
34. The case mentioned at Serial No,3 (Habib Bank Limited) (supra), no doubt pertains to an order of disposal of leave to defend application, but such order for appointment of Chartered Accountant/Commissioner was passed by consent of the parties, but in the present case when request was made by the defendants' side for appointment of Chartered Accountant to examine the accounts the learned counsel for plaintiff vehemently opposed the request and submitted that present case does not require any accounting discrepancy hence leave to defend application be heard and decided on merits. For these reasons, the judgment referred by learned counsel for defendant is of no held to him.
35. In the other case (Nazimuddin) (supra) cited by learned counsel for defendant a Chartered Accountant was appointed to take accounts of the parties and determine the liability, but said order was also passed by consent of the parties. As submitted earlier no consent was given by the plaintiffs site in this case hence defendant cannot take advantage of this judgment as well.
36. The other judgments cited by learned counsel for defendant deal with the authenticity and correctness of statement of accounts, but in the present case there was no such dispute as pointed out by me in the earlier part of the order that only one finance facility was allowed to the defendant for which mark-up has been charged as per agreed terms. All the payments made by the plaintiff on account of principal are reflecting in the statement of accounts so also in paragraph-8 of the plaint. No amount was paid by the defendant to the plaintiff on account of mark-up hence judgments cited by learned counsel for the defendant with regard to correctness or otherwise of the statement of accounts are not attracted in the circumstances of the case.
37. Learned counsel for plaintiff has submitted that "cash finance facility" was availed by the defendant which has been admitted by the defendant. He also submitted that execution of documents by the defendant is also admitted. He submitted that since defendant has failed to repay the amount to the plaintiff-Bank as agreed, defendant is not entitled to leave to defendant the suit and the application be dismissed. He relied upon the case of National Bank of Pakistan (2007 CLD 1356), wherein learned Single Judge of this Court finally concluded as under:--- "As regards the question, whether defendants in Suit No,1445 of 1999 are entitled for leave, the defendants have not denied that financial facilities have been granted by the Bank and or received by them, the execution of document has also not been denied by the defendants, the defendants are therefore not entitled for leave to defend the suit. Suit No,B-02 of 2004 is, therefore, dismissed and Suit No,1445 of 1999, is decreed for the sum of Rs,58,138,577 with cost of funds at the prevailing rate fixed by the. State Bank of Pakistan from the date of filing of the suit till realization."
38. The learned counsel for the plaintiff-Bank also relied upon the case of Muhammad Arshad and another (2006 CLD 1011) wherein the honourable Supreme Court of Pakistan while dealing with issue of terms of agreement entered into between the customer and the Bank has held as under:-- "We have no hesitation in our mind to hold that agreement dated 26-6-1999 was authentic, genuine and executed between the parties and acted upon. A careful perusal of the agreement dated 26-6-1999 would reveal that mark-up was charged in accordance with the terms and conditions stipulated therein. It is to be noted that in the agreement dated 26-6-1999 it has been stipulated in a categoric manner that the petitioners had also entered into mark-up agreement which was executed on 21-6-1995 and thus, it stood admitted by the petitioneRs, It would not be out of place to mention here that an amount of Rs,21,05,280 was mentioned as mark-up in the last agreement. It would be too late in the day to challenge its authenticity on the pretext of certain blank columns. The question which arises here at this juncture would be that as to why certain columns were left blank and if it was so done why the incomplete agreement was signed by the petitioners? No answer could be given by the learned Advocate Supreme Court on behalf of the petitioneRs, In our considered view the plea of "blank columns" would hardly renders any assistance to the case of petitioneRs, In view of the provisions as contained in section 20 read with section 118 of the Negotiable Instruments Act, 1881 no benefit could be given to the petitioner on the ground that the agreement was not completely filled in when executed as it would have no substantial hearing on the validity of the agreement."
39. In the circumstances, leave to defend application filed by defendant is dismissed for the aforesaid reasons. Consequently the suit of the plaintiff is decreed as prayed with costs against the defendant along with costs of funds from the date of default till realization.
40. In view of above order applications (C.M.As. Nos.11741 and 12085 of 2010) have become infructuous.