JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J. - The respondent-Bank filed a suit for recovery of Rs. 300,693/- against the appellant and respondents No. 2 and 3. It was asserted that appellant opened an account with respondent- Bank PAF Road Branch, Sargodha and applied for finance facility which was sanctioned on 21.6.2010, the facility sanctioned was Rs. 200,000/- on revolving basis for three years, the mark-up was fixed at Rs. 16.5%, the expiry date of finance was 31.3.2005, in consideration of availment of financial facility, the appellant executed certain documents acknowledging the receipt of finance, the appellant also mortgaged property detailed in para 6 of the plaint. It was further asserted that property mortgaged subsequently proved to be fake and bogus, the respondent-Bank contemplated to criminal proceedings against the appellant and on 4.4.2005 the appellant submitted an application and requested that criminal action may not be initiated against him, as he would secure bank finance by substituting immovable property.. The plaintiff thus prayed that a decree for recovery of Rs. 300,693/- alongwith mark-up to be recovered from the sale of mortgaged property be passed against appellant and respondents No. 2 and 3.
2. The appellant filed an application for permission to defend the suit and raised objection that transaction subject-matter of the suit is a fraudulent transaction, it is the Agriculture Officer of respondent-Bank who availed the said loan, the appellant denied his signature on all the documents alleged to be executed by him. He further denied the execution of alleged letter dated 4.4.2005. The learned Trial Court on 13.11.2006 dismissed the application for permission to defend the suit and passed the impugned decree.
3. Learned counsel for appellant submits that learned Trial Court has failed to appreciate the facts that appellant never availed any loan nor executed the alleged charge documents. The learned Trial Court was requested to refer the signature of appellant to hand-writing expert for expert opinion but the learned Trial Court has refused to obtain opinion of hand-writing expert. He submits that appellant has successfully showed substantial question of law and fact which requires recording of evidence and as such appellant's application for permission to defend the suit was wrongly dismissed by the learned Trial Court.
4. Learned counsel for respondent-Bank submits that the appellant has not denied the opening of account with the respondent-Bank, the statement of account annexed with the plaint is sufficient to prove the disbursement of loan, the appellant has not denied the opening of his account and the disbursement therein. In these circumstances, how the appellant can deny the availment and utilization of loan. Further submits that learned Trial Court was within its jurisdiction to examine the signature of appellant on different charge documents and the conclusion drawn by the learned Trial Court is according to law. He further submits that letter dated 4.4.2005 is the admission of appellant for availment of loan. Learned counsel thus supports the impugned judgment and decree.
5. Heard, record perused.
6. It is an admitted fact that appellant has not denied the opening of his account but he has denied the availment of loan and submission of application for grant of finance. Under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the statement of account is the primary document which can prove the disbursement and withdrawal of Finance. The statement of account placed on record shows that a sum of Rs. 200,000/- was disbursed on 24.7.2000 to the appellant account but surprisingly no such document is available on record which shows that how# the appellant withdrew the amount of Finance. Learned' counsel lor respondent when asked to show any document which will show that appellant withdrew the amount of Rs. 200,000/- either through cheque, pay order or any debit voucher, he is unable to explain. There are only five entries in the statement of account which pertain to loan disbursement and debiting of mark-up only.
7. No doubt from the statement of account it is established that a finance of Rs. 200,000/- was disbursed to the appellant account but its withdrawal is nowhere mentioned nor proved by the respondent-Bank.
8. The appellant has specifically denied the availment of loan execution of charge document and mortgage of property. The denial of appellant to mortgage property further finds favour from the fact that mortgage for securing the Finance was fake. The learned Trial Court has ignored all appellant's objections and only considered a letter dated 4.4.2005, the authenticity of said letter is not proved. The appellant has specifically denied the said letter. In the absence of any evidence for withdrawal of the amount of Rs. 200,000/-, it cannot be held that the Finance was availed by appellant without recording the evidence specifically lien the pass book is also a fake document. It is not denied by the learned counsel for respondent that the mortgaged charge of bank got registered by the bank itself in the revenue record. The said act of respondent is sufficient to prove, prima facie, that the bank officials were involved in this case.
9. In these circumstances, learned Trial Court was bound to grant leave to defend the suit to appellant and after recording the evidence, the suit should have been decided. In this view of the matter, we allow this appeal, set aside the impugned judgment and decree and allow the appellant to defend the suit unconditionally, and remand the case to the learned Trial Court who will frame the issues and after recording the evidence will decide the suit within a period of three months on receipt of certified copy of this judgment, strictly in accordance with law. .
10. The appeal is allowed in the above terms.
RFA allowed/Leave to defend .