JUDGMENT SYED ASGHAR HAIDER, J. - Defendant No. 1 availed finance facilities from the plaintiff bank (detailed in paragraph 4 of the plaint), during the course of time, the parties developed a cordial relationship and pursuant thereto, the plaintiff-bank accommodated the defendants by providing Running Finance and Cash Finance Facilities in the sum of Rs. 10 Million and 30 Million, respectively. The, contents of the plaint clearly reflect the quantum of due payment etc., therefore, for the sake of brevity they are not reproduced. It is also worth-while to mention here that the defendants executed several documents to secure these transactions, the said documents are detailed in para 8 of the plaint and, therefore, have not to be reproduced. The defendants jointly and severally defaulted in their obligations qua liquidating the said facilities, thus the plaintiff was constrained to file the present suit.
2. Pursuant thereto notices as required in Form-4 Appendix B to the Code of Civil Procedure, were issued on 20.5.2008. In response thereto the defendants filed PLA No. 31-B of 2008, raising defence as mentioned in para 4 of the PLA (about 70 questions of law and preliminary objections, (a) to (rrr)). On merits, defendant No. 1 virtually admitted availing facilities alleged by the plaintiff-bank, but took exception to several entries and raised objection qua markup, vaguely denied the contents of the plaint and documents adverted to in the plaint, but denial pleaded in law, stating that the documents are not in consonance with legal requirements.
3. In response thereto, replication was filed wherein the plaintiff bank reiterated the contents of the plaint and denied the assertions made.
4. The learned counsel for the defendant contended that the plaint is not in accordance with law as Amir Nawaz is not an authorized attorney as contemplated by Section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The claim of the plaintiff qua Running Finance and Cash Finance Facilities is incorrect, the amount claimed is bogus, imaginary and is not substantiated, there are disputed questions of facts between the plaintiff and defendants qua these transactions and the same cannot be adjudicated without recording of evidence. The running finance facility of Rs. 20 Million disbursed has been illegally rolled over and mark-up upon mark-up has been charged. The documents forming basis of filing suit are inadmissible in evidence and, therefore, not tenable in law. To fortify his contentions learned counsel referred the following precedents:
(i) Hafiz Muhammad Sadiq v: Muhammad Rashid and 3 others (2003 Y.L.R. 717),
(ii) Bashir Ahmed and 3 others v. Muhammad Aslam and 6 others (2003 S.C.M.R. 1864)
(iii) Azad J&K Government and others v. Ch. Abdul Majeed and others (2004 M.L.D. 844),
(iv) Tasnim-ud-Din v. Messrs Prudential Discount and Guarantee House Ltd. (2005 M.L.D.1681),
(v) Louise Anee Fairley v. Sajjad Ahmed Rana ' (P.L.D. 2007 Lahore 300)
(vi) Iqbal Ahmad Sabri v. Fayyaz Ahmad and another (2007 C.L.C. 1089).
5. In response thereto the learned counsel for the plaintiff clearly and unequivocally contended that the provisions of Section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have been complied with in letter and spirit, Mr. Amir Nawaz, is the authorized attorney of the bank and his power-of-attorney is available on record at Annex: A. The defendants have admitted the relationship of customer, no specific denial, has been 'made qua availing of facilities and as denial is not specific, therefore, relying on 2007 CLC 1089, P.L.D. 2007 Lahore 200, 2005 M.L.D. 1681, 2004 M.L.D. 844, 2003 YLR 717 and 2003 S.C.M.R. 1864, the defendants are not entitled to the grant of leave. The documents appended with the plaint are in consonance with record, there is no illegality in the same, the contents of the PLA and arguments made clearly depict relationship of a customer, the grounds taken in the PLA and argued at the Bar are entirely different, therefore, under the principle of secundum allegata et probata this cannot be permitted. The provisions of Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has not been .Complied with, there is preponderance of material available on record to show that due payment has been asked for. The statement of account is in accordance with law and details the facilities and fulfills all other legal requirements.
6. Heard. It is established beyond any shadow of doubt that there was a business relationship inter se the parties, it not only stand admitted on record, but has also not been denied by the defendants. Perusal of the contents of the plaint reflect that the legal requirements of Section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have been fully adhered to and fulfilled, the statement of account is in consonance with the contents of the plaint and is accompanied by various documents to support the transaction. There is no material contradiction in the contents of the plaint and documents appended, it also is worth-while to mention that the statement of account is not only reflective of the relationship governing the parties, but details all the entries as required by law. In the PLA the defendants have raised around 70 questions of law and about 70 preliminary objections. Section 10 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, postulates that a defendant shall not be entitled to, defend the suit unless he obtains leave from the Banking Court and in default of his doing so the allegations of fact in the plaint shall deem to be admitted. Section 10(3) postulates that the application for leave shall be in the form of a written statement and shall contain a summary of substantial questions of law as well as fact in respect of which in the opinion of the defendant evidence needs to be recorded.
Section 10(5) also commands that the application for leave to defend shall be accompanied by all the documents which, in the opinion of the defendant, support the substantial questions of law or fact raised by him. Section* 10(6) stipulates a penalty and holds that if the provisions of Section 10 (3), (4) and (5) have not been complied with the leave application shall be dismissed.
7. Order VII, Rule 1, CPC pertains to a written statement, while Rule 2 relates to the format of a written statement, it requires that all matters, which show that the suit is not maintainable or a transaction is void or voidable on point of law and all grounds of defence must be raised. On the touch stone of this principle the PLA is not in the correct format. As stated earlier 70 questions of law and 70 preliminary objections raised are ambiguous at best and in form of questions, therefore the format of PLA is incorrect. Further there also is no corresponding material or even document to substantiate the questions of law and preliminary objections raised, they are also intermingled and indecipherable, further, the defendant while filing written arguments, confined himself and his defence to following points only, that there is conflict in the plaint and the statement of account, that there are disputed questions of law and fact involved, therefore, the defendant is entitled to the grant of leave, no disbursement has been made, the documents referred to are invalid in law and entries in statement of account at pages 699 and 849 of the suit are incorrect. As referred to earlier the ingredients of fraud, misrepresentation and want of jurisdiction are required to be incorporated in the written statement with details, there is nothing to this effect available in the PLA.
The transaction inter se the parties stands established not on!y from the plaint but from the PLA itself, which at best-terms the transaction invalid in law, but the liability has not been specifically denied, which virtually affirms the contents of the plaint. The statement of account has been admitted to a degree by the defendant but charging of mark-up has been termed exorbitant, this virtually amounts to an admission and seals the fate of the transaction, it, therefore, is clearly established that there was a valid and binding transaction inter se the parties, thus, objection No. 1 has no merit and is repelled.
'8. As far as submission pertaining to para 21 of the plaint is concerned, an exception has been taken that there are omissions, which have not been specifically explained, the objection is not tenable as statement of account is in consonance with the legal requirements, the objection has been satisfactorily explained in para 21 of the plaint, both are in harmony and complete consonance. Contrarily, in terms of Section 10 of Ordinance, 2001, it is obligatory and mandatory upon the defendants to elaborate these points and file a detailed statement of account to offset the effect if any in the statement of account filed by the bank, this has not been done, therefore, this contention also has no force and is thus dismissed. The precedents referred to by the learned counsel for the defendants have no nexus with the present dispute.
9. There are no disputed questions of law and fact, the contents of the PLA virtually admit the liability at best denial may be termed evasive, which is no denial, therefore, cannot be made basis to nullify the whole transaction. The factum of disbursement of facilities stands admitted from the following documents:---
(1) Annexures B to L21 of the plaint.
(2) Demand Promissory Note dated 19.11.2007.
(3) The running finance facility Annexure L12.
(4) Cash Finance Facility Annexure LI 5.
(5) Letters issued by the defendant dated 01.01.2008 and 05.03.2008 (Annexure M3 and M4).
(6) Undertaking dated 18.03.2008 Annexure M5.
(7) Partial Settlement Agreement dated 23.06.2008 executed by the defendant.
(8) Final settlement of account appended with the plaint.
Thus not only has the plaintiff successfully proved the disbursement but correspondence referred to above clearly establishes that the defendants committed a clear default in liquidating their obligation and thus have failed to raise a plausible/bona fide defence in terms of Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001,
10. Further notwithstanding the decision of the PLA on merits, it is also not in consonance with the legal requirements of Section 10(3) and (5) of the Ordinance, 2001 and therefore, is not tenable.
11. As a result of the discussion above, the suit of the plaintiff is decreed as prayed for in terms of Section 14 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 with costs, cost of funds and future mark-up till realization. The liquidated damages are disallowed. A decree sheet be accordingly prepared.
12. In case the decretal amount is not liquidated within 30 days of the passing of this decree the proceedings would stand Converted into execution petition as ordained by Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.