' SALMAN HAMID, J.---This is a Suit for recovery of Rs, 161,893,638, filed by the bank/plaintiff against its borrower/defendant under Section 9 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 (Ordinance 2001), for attachment and ,sale of hypothecated assets. Murabaha Finance Agreement dated 7-2-2007 (M.F. Agreement) was entered into between the plaintiff and defendant, whereby Facility of Rs,150,000,000 (Finance) was sanctioned to the defendant towards Working Capital requirement. Other necessary documents towards security were obtained by the plaintiff from the defendant towards the Finance. In addition to the above Finance, it was claimed by the plaintiff that Forced T.R. Towards L.Cs. Was also created to the extent of Rs,5, 310,017 (Forced TR). Facility under M.F. Agreement and Forced TR not coming forth, this Suit for recovery of amount as mentioned above was filed.
2. Defendant in the leave to defend application altogether disputed that no amount whatsoever was due and payable. It was asserted that as far as Facility under M.F. Agreement is concerned, the same was not at all disbursed. With regard to Forced TR, it was mentioned that according to plaintiffs own showing (Annexure 'D' to the plaint) its conversion rate, at the relevant time, came to Rs,48,346,435 which as evident from paragraph 11(II) was paid off to the extent of Rs,51,184,543.
Therefore, it was urged that it is the plaintiff who owe to the defendant. Fortifying his arguments, learned counsel for the defendant referred to M.F. Agreement dated 7-2-2007 and stated that thereunder "Due Dates" have been defined, which say that the date on which any part of purchase price is due and payable by the defendant to the plaintiff, would be payable as specified in the declaration (Exhibit "D"). It was further mentioned that under the definition of, "Purchase Price" the selling price payable by the defendant to the plaintiff with respect to the goods as specified in Exhibit "D. Attention of this court was also drawn to the head "Mode of Payment" as mentioned in the M.F. Agreement, which says that defendant shall pay the Purchase Price on or prior to the Due Date(s), specified in the Declaration (Exhibit "D"). Ultimately, Exhibit "D" annexed with the plaint (page 59) was referred to and it was mentioned that though in paragraph 4 of the plaint it is clearly stated that the plaintiff disbursed Rs,150, 000,000 to the defendant on November, 24, 2007, Exhibit "D" itself shows that purchase price of Rs, 150,000,000, which came to Rs,154, 974,658, being resale price was to be paid in one lump sum amount on 25-5-2007. Arguing further on Exhibit "D" it was asserted that by plaintiffs own showing, as also reflected in Annexure "H" (page 109), amount disbursed is shown as Rs,150,000,000 (page 111-Annexure "I") wherein opening balance on 24-11- 2007 was shown as Rs,150,000,000 and that principal amount due in terms of Annexure "I" was again Rs,150,000,000 without disclosing resale price of Rs, 154,974,658; instead in Annexure "I", profit due to the extent of Rs,9,768,164 was mentioned which was added to Rs,150,000,000 and total amount due was shown as Rs, 161,893,638. It was thus mentioned that the plaintiff have miserably failed to show as to what amount was actually disbursed to the defendant and therefore, it was argued that at no stage of time any amount whatsoever towards Finance, in terms of M.F.
Agreement was disbursed to the defendant. It was also mentioned that in M.F. Agreement, the profit which has been charged by the plaintiff is no where disclosed and it was nothing but amount which at the best can be categorized as markup on markup, charging of which is not permissible under the law.
3. As to the Forced TR, it was argued that from plaintiffs own showing, at the relevant time it was to the extent of US$ 776,026.24 (18-1-2008), conversion rate whereof at such time came to Rs,48,346,435/- and that the plaintiff themselves have stated in their plaint that plaintiff have recovered Rs,51,184,543 under Forced TR. Therefore, no amount was payable by the defendant to the plaintiff towards such Forced TR. It was denied altogether.
4. Besides above objection, the learned counsel for the defendants also hit on the maintainability of the present suit and argued that the power of attornies are undated and that neither names of the persons executing power of attorneys nor authority under which the said powers had been executed was disclosed. It was also asserted that the said ' power of attornies were unregistered document. However, it was mentioned that neither any board resolution authorizing issue of power of attorneys was produced nor any resolution was brought on record to show that such power of attornies were duly executed after board resolution.
It was specifically mentioned that while Mr. Tahir Bhatti has produced special powers of attorney, Syed Ghulam Nabi Shah has only produced plain power of attorney which goes to the root of the matter. It was also asserted that both the power of attorneys, though similar yet reason for one being special power of attorney and other being plain power of attorney was not explained. It was finally argued that while special power of attorney had been purportedly signed by Head of Human Resources and Head of Services respectively, other power of attorney was signed by Country Operation Head and the Chief Information Officer without disclosing their names which again was fatal as far as filing of present suit on the basis of above two power of attorneys is concerned.
5. In rebuttal, learned counsel for the plaintiff had no answer to charging of accrued profit of Rs,9,768,164. With regard to the payment of Rs,51,184,543 towards Forced TR as against payment of Rs,48,346,435 as mentioned in Annexure "D" to the plaint again nothing was stated in rebuttal.
However, great emphasis was given that no authorization or power was produced by the defendants to show that the person who had filed the leave application was authorised in such regard. Case-law was cited in such respect. It was asserted that leave to defend application be dismissed and suit be decreed.
6. I have heard arguments of both the learned counsel and perused the record. It is clear from the Exhibit "D" (page 59) that the principal amount was Rs,150,000,000 under the M.F. Agreement and its resale price was Rs,154,974,658. Such resale price having been settled, prima facie plaintiff were not entitled to charge profit of Rs,9,768,164 of which no plausible explanation was available to the plaintiff. It is clear that in paragraph 4 of the plaint and so also in the Statement of Account, available at (page 111-Annexure "I") the opening balance as on 24-11-2007 is shown to be Rs,150,000,000. In such Statement of Account resale price of Rs,154,974,658 was missing altogether.
Instead Rs,9,768,164/- have been shown towards profit due, justification of which is nowhere available. It is also clear that resale price of Rs,154,974,658 was to be made in one lump sum amount on 25-5-2007. If such amount was so payable on the referred date i,e, 25-5-2007 then the plaintiffs claim that it was disbursed in November, 2007 seems to be misplaced and require reconciliation by way of evidence. It is also to be proved as to what amount was actually due and payable under Forced TR if compared with figure mentioned at the foot of Annexure "D", which is the application and agreement for irrevocable documents created on 18-1-2008. This document shows that Forced TR of US$776,026.24 was created. If such amount is calculated at the rate of Rs,62.30 (conversion rate at the relevant time), it comes to Rs,48,346,435. As against this, the plaintiff has mentioned that the defendant has paid amount towards such Forced TR to the extent of Rs,51,184,543. This too needs reconciliation through evidence. As to the authorization of the persons, who have filed leave to defend application, I have noticed that resolution in such respect is available on the record of the file, which sufficiently complies with the provisions of Ordinance 2001. The case-law cited by the learned counsel for the plaintiff in such regard need not therefore, be discussed.
7. All the above discrepancies having been raised, come within the pale of substantial questions of law and fact and 'require evidence and to prove the case leave has become inevitable, which is hereby granted.
The issues, which have cropped up for consideration at trial, after looking at the pleadings are as under:--
(1) Whether plaintiff actually disbursed Rs,150,000,000 to the defendant of which resale price was Rs,154,974,658 and in view of such resale price whether plaintiff are entitled to claim Rs,9,768,164 towards profit outstanding?
(2) What amount is due and payable under Forced TR?
(3) Whether present suit has been filed competently and authorized by the person, whose name is available in the verification clause?
(4) What should the decree be?