MUHAMMAD ALI MAZHAR, J. - By this order, I will dispose of C.M.A. No. 4652/2009 filed by the defendant No. 1 under Order* 6, Rule 17 and Section 151, C.P.C, in which it is inter alia contended that vide order dated 12.5.2004, this Court appointed a Chartered Accountant to examine seven accounts mentioned in paragraph 13 of the Plaint. The Chartered Accountant had submitted its Report and according to the report, an amount of Rs. 151,430,296.98 is payable by the Defendants to the Plaintiff. When the Chartered Accountant was reviewing the accounts, the Plaintiff filed a Statement of Project Loan Account which was not filed with the Plaint, In the year 1994, the Defendant No. 1 had floated its shares for public subscription on 11.7.1994 on account of which the Plaintiff had received a sum of Rs. 34,450,540/-. The Chartered Accountant disclosed in its report that these payments were not adjusted against other facilities. The Report further disclosed that the Plaintiff had been transferring the amount from one account to the other accounts and charging markup in the newly created accounts on the same amounts which were part of earlier accounts. The Chartered Accountant has further mentioned in the Report that analysis of the seven accounts resulted in disclosure of three additional finances provided by the Plaintiff as follows--
(i) LDA World Bank Loan.
(ii) Forced Loan.
(iii) Demand Finance 1993 (of 1993).
The Chartered Accountant has also disclosed that there are a number of missing vouchers not provided by the plaintiff for Running Finance and Cash Finance. There are number of entries in the accounts which do not carry any narration. On the basis of aforesaid report and 1he discrepancies pointed out by the Chartered Accountant, the defendant has craved leave of this Court for making necessary amendments in the leave to defend application as follows:- - Additional Grounds of Amendment into leave to defend Application:
(a) The Plaintiff did not adjust the share flotation money to the Project Loan Account on 11.7.1994 in spite of written instructions of Defendant No. 1 vide its letter dated 25.5.1994 which was sent to the Plaintiff by courier service. These documents are attached to the objections of the Defendants to the Chartered Accountant's Report attached marked 1 and 2. If such instructions had been followed, there would not have been any amount left in the Project Loan and for which reason nothing could have been transferred from the Project Loan by crediting the Demand Finance 1993.
Thereafter creating further accounts. The Plaintiff was not entitled under law and in fact to adjust, if any, the flotation money in any other account.
(b) The transfer of the amount from Project Loan to Demand Finance, 1993 and thereafter from DF 1993 to Demand Finance No. 1 1998 and Demand Finance No. 2 1998 were illegal and were made only for the purposes of charging further mark-up when, in fact, there was no liability to charge mark-up and there was no such agreement of charging mark-up on these accounts, In fact, all these accounts are fictitious. There are no finance agreements and even if there are (not in the knowledge of the Defendants), the same would be void. No mark-up can be debited to the account of the Plaintiff.
(c) From the accounts, all entries for which no vouchers were produced and those which do not carry any narration are liable to be deleted.
(d) The Plaintiff has to account for the two payments of Rs. 7 Lacs and Rs. 3 Lacs made by the Defendant No. 1 on 17.11.1999 and 18.11.1999, both by Pay Orders.
(e) The accounts are unreliable and the Plaintiff has to prove by evidence its claim, if any, against the Defendants.
(f) The 12 Finance Agreements relied upon by the , Plaintiff are all bogus and void. No amount was disbursed thereunder.
(g) . The Plajntiff has to explain the contradiction in the statement of account of running account, specially the entry B/F, 5,807,240/88 (Annexure D/6 to the objections to the Report) and the one of the same date supplied to be Chartered Accountant showing debit balance of Rs. 13,919,662/91.
(h) The amounts which have been illegally transferred from one account to account already included interest, penal interest, additional interest and mark-up. Ln the newly created accounts, further mark-up has been levied without any justification and authority. Even, the entries of interest, penal interest and additional interest and mark-up entries are liable to be removed.
(i) The Plaintiff cannot claim any amount under the seven fictitious accounts and these accounts are unreliably.
The Senor Manager of the plaintiff filed a counter-affidavit in which it is igter alia. Contended that during hearing of application for leave to defend, the leamed counsel for defendants raised a specific plea of allegedly charging markup on mark-up in the statements of* account filed by the plaintiff Bank with the plaint and also pointed out certain entries allegedly showing charging of mark-up on mark-up. The Chartered Accountant was appointed to examine seven accounts (annexed to the plaint). A perusal of Annexures P/1 tb. P/9 to the plaint, admitted by the defendants in the application for leave to defend and vide letter dated 10.6.1997 admitted the total financing from the plaintiff as Rs. (53) million as per their Balance Sheet for the year ended 30.6.1996 and also requested to the Manager, H.B.L., S.I.T.E. Branch, Karachi to provide statement of account from 30.12.1993 upto date including the detail of outstanding mark-up and vide letter dated 25.11.1997 (Annexure P-3/2), the defendants confirmed that the entries as transferred to Demand Finance account stand identified and thus reconciled. Board Resolutions are attached with the plaint whereby the defendants undertook that no further rescheduling would be requested. On .The request of the defendants vide their letter dated 4.1.1998 (Annexure P/38), the plaintiff vide Memorandum (Annexure P/39) renewed Running Financing Limit of Rs. (30) million and enhanced Inland Bills Purchased Finance Limit from 2.5 million to Rs. 7.5 million and deferred the installment of demand finance upto 31.3.1999 and in consideration thereof, the defendants executed and delivered Agreements for Financing and other charge document, In view of rescheduling/restructuring renewal and enhancement of- finance facilities, this Court appointed commissioner for verification of seven accounts enclosed with the plaint. After the Commissioner/Ghartered Accountant submitted his Report, the defendants filed their objections to the said Report and on behalf of plaintiff reply to the objections were filed, wherein it was specifically stated that Chartered Accountant and the defendants had no authority to deal with the past and closed transactions, It is further submitted in the counter-affidavit that the defendant No. 1 is a public limited company, whose accounts are audited each year by its own Auditors/Chartered Accountants firm and the Annual Reports are published every year and same are filed by the defendant No. 1 with Security & Exchange Commission of Pakistan (SECP). The defendants in their application for leave to defend have relied upon the contents of the plaint in their Suit No. B-90/2001 filed by them against the plaintiff Bank earlier in time to the instant suit, and filed copy of plant as Annexure "A" to their leave application to the instant suit. Ln para (20) of'the plaint in their Suit No B-90/2001, the defendants have summarized their claims against the Bank on account of mark up and on account of excise duty, allegedly illegally recovered by the Bank, and further claimed alleged losses and damages, lt is further submitted that in the instant suit, the defendants did not specifically challenge any entry in the seven Statements of account filed with the plaint and also did not file their own statement of account to rebut plaintiff s Statements of accounts, therefore, after filing the leave to defend application; the defendants are estopped from introducing new pleas or the change their defence which has not been taken by them or to reopen past and closed transactions, the remedy in respect, whereof has become time-barred, lt is further submitted that there was no question of filing statement of Project loan account before the Chartered Accountant or with the plaint in the instant suit, as the same was past and closed transaction in consequences of rescheduling/restructuring of over dues in the year 1993 granted by the plaintiff Bank on the request of the defendants. Again in the year 1998, on the request of the defendants the plaintiff Bank allowed rescheduling/restructuring of over dues, which were accepted and' acted upon by the defendants and thereafter in the years 1999 & 2000, further rescheduling/restructuring of over dues and renewal/enhancement of finances were granted. Due to above reasons, the statements of accounts annexed to the plaint start by the entries pertaining to the year 1998, which have not been specifically rebutted or challenged by the defendants in their Leave to defend application or by filing their own statements of account, as the defendant No. 1 is a Public Limited Company and maintain its own accounts duly audited each year by their own Auditors/Chartered Accountants, lt is'amazing that the defendant No. 1 wants to reopen past and closed transactions pertaining to the year 1993-1994, which have not been agitated in the Leave to defend application filed in the instant suit, lt is settled law that a Public Limited Company is required under the law to maintain its own accounts and the statements of accounts filed by the Bank certified on oath under Bankers Books Evidence Act carries presumption of correctness. The defendants did not file their own statement of account to rebut specific entries in the Statements of accounts filed by the Bank for the obvious reason that they had no specific objections to any specific entries in Bank's statement of Accounts. The defendants are estopped from challenging the specific entries in the statements of account annexed to the plaint, after filing of their Leave to defend application on the ground that relevant vouchers were not provided by the Bank to the Chartered Accountants. The mala fide on the part of the defendants is evident that in para 10(a) they have referred to a false and fabricated letter dated 25.5.1994 allegedly sent to the plaintiff by an unknown courier service, which was neither delivered to nor received by the plaintiff, which was not even mentioned or referred in defendants' Leave to defend application, lt is further urged that this Court has been exercising jurisdiction under Ordinance XLV1 of 2001 which is a special law, wherein there is no scope of filing interlocutory applications touching the merits of the case, before disposal of application for Leave to defend the suit. Similarly no amendment in the Leave application or improvement therein or nullifying the admissions already made therein and in the documents annexed thereto can be allowed. The Chartered Accountant has already filed his Report after verification of seven statements of accounts, therefore, defendants' Leave to defend application be dismissed and mortgaged decree may be passed for recovery of said amount according to law.
The Defendant's Managing Director filed his rejoinder and submitted that the order dated 12.5.2004 will speak for itself. This Court in the first instance desired to have the accounting done by the chartered accountant. The accounts filed with plaint are nothing but re-scheduling of the liabilities.
The plaintiff did not intentionally file accounts which were rescheduled and as a result of which, the Plaintiff created of its own seven accounts filed with the Plaint, lt is also now the admitted position that no amount, as mentioned in the seven accounts, were advanced to the Defendant No. 1 same being re-scheduled amount Re-schedule does not mean adding mark-up on mark-up and capitalizing mark-up or charging mark-up beyond agreement of finance or without such agreement. The Balance Sheets are prepared for the Companies Ordinance purposes by the external auditors and they take amounts as advised to them directly by the financial institutions.
The order dated 12.5.2004 would show that the Court appreciated the illegal entries of capitalization and mark-up on mark-up. The Defendant No. 1 had pointed the same to the Chartered Accountant. The chartered accountant was required to consider the legal position of these as per rules and regulations and law. Banks are supposed to be honest and ethical, lt is denied that the amendment application is changing defence. On the contrary, it is addition to the defence. There are no past and closed transactions as the Plaintiff itself admitted that the present accounts are merely re-scheduling amounts and nothing else. If true accounts are taken, it will be found that nothing is due from the Defendants to the Plaintiff. The fact that the amount of share flotation has not been adjusted in the Project Loan Account became evident from the chartered accountant's report and Suit B-90 of 2001 was filed on the assurances of the Plaintiff Bank that same has adjusted in the Running Finance. If any payments have been made even after re- scheduling it does mean that the Defendants are barred from their right to challenge the accounts and from calling upon the Plaintiff to render true and lawful accounts, lt is denied that the chartered account did not take into consideration the claim of the Defendant No. 1 regarding Rs.
34.0 million due to alleged grounds of past and closed transactions. Had the vouchers been filed by the plaintiff with the statement of accounts at the time of filing the plaint, objections would have been taken about the missing vouchers. The plaintiff bank intentionally did not provide any vouchers as'either the same did not exist or else contain material against the interest of the plaintiff.. Re-scheduling and re-structuring does not mean the admission of liability, lt is denied that there is no scope of filing interlocutory applications under the Ordinance XLV1 of 2001.
Heard the learned counsel for the parties. The learned counsel for the defendants Mr. Manspor-ul- Arfin referred to page 1435 of the report submitted by Auditor "Anjum Asim Shahid Rahman" in which it has been stated that a list ot missing vouchers as provided by H.B.L, and BAL for running finance and cash finance is attached as annexure "R", which rs available at page 133 of the report, lt is further mentioned at the same page that Management of H.B.L, could not produce any evidence that the payments against amount received on account of flotation of shares in August 1994, payment claimed against cash finance through pay order dated November 17, 1999 and payment claimed against cash finance through pay order dated November 18, 1999 were adjusted against other facilities. He further argued that the plaintiff has to account for the two payments of Rs. 7 Lacs and Rs. 3 Lacs made by the defendant No. 3 on 17.11.1999 and 18.11.2009. According to the learned' counsel, there is a contradiction in the statement of account of running finance specially the entry B/F, Rs. 5,807,240/88 and the one of the same date supplied to the chartered accountant showing debit balance of Rs. 13,919,662/91. Lt was further alleged that the plaintiff was, illegally transferring the amount from one account to another with penal interest, additional interest and mark-up and in the newly created accounts further mark-up has been levied without any justification. The learned counsel further argued that under sub-section (10) of Section 10 of. The Financial Institutions (Recovery of Finances) Ordinance, 2001, it is clearly provided that where the application for leave to defend is accepted, the Banking Courts shall treat the application as a written statement, therefore, he argued that it was incumbent upon the defendant to move an application under Order 6, Rule 17, C.P.C, for necessary amendments and if at this stage this application is moved, then no amendment will be allowed in case the leave is granted and if the present leave to defend application is converted into written statement, therefore it is necessary for the defendant to move application for necessary amendments in view of the discrepancies pointed out by the Chartered Accountant. He further submits that under Section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, it is clearly mentioned that a Banking Court in the exercise of its, civil jurisdiction shall have all the powers vested in Civil Court under the Code of Civil Procedure, 1908 and a Banking Court shall in matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 So far as Order 6, Rule 17, C.P.C, is concerned, the learned counsel argued that the Court may at any stage of the proceedings allow either party to alter or amend the pleadings if amendment is necessary for the purposes of determining the real matter in controversy, In support of his arguments, the learned counsel relied upon the following judgments:-
1. PLD 1970 Karachi 179 (Falah-ul-Momineen Trust v. V.P. Abdullah), ln this case, the learned Single Judge of this Court has held that the legislature in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, a provision like Section 151, C.P.C, was enacted to empower the Courts to meet such an unforeseen eventuality.
Apart from Section 151, C.P.C., the Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself, It is further held that the refusal to exercise inherent jurisdiction amounts to refusal to exercise jurisdiction vested. The Legislature has in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, a provision like. Section 151, C.P.C, was enacted to empower the Courts- to meet such an unforeseen eventuality. Apart from Section 151, C.P.C., the Court has also inherent power to take all steps to execute its own mandates and orders as this power flows'from the jurisdiction itself. The support for this view can be had from the following passage on page 136, Corpus Juris Secundum, Vol. 21. "While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and Constitutional provisions, every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of jurisdiction, and for the enforcement of its judgments and mandates". This power has been judicially recognized and stated as an implied power flowing from the jurisdiction itself in the Interpretation of Statutes by Maxwell, 10th Edn., Page 136.
1980 CLC 1454 (Muhammad Din v. Shaukat Ali). Ln this judgment, the learned Single Judge of the Lahore High Court has held that Code of Civil Procedure not strictly applicable to proceedings before Rent Controller. Procedural provisions contained in Rent Ordinance mot exhaustive. No illegality has been committed by the Rent Controller in following the principles of said Code so far as not offending against provisions of Ordinance Amendment of pleadings not barred under the Ordinance.
Z. NLR 1983 Civil 159 (Lai Muhammad v. Additional District Judge), ln this case, it has been held that amendment in applications/replies which do not fall within the meaning of "pleadings" under Rule 1, Order 6, C.P.C, can be allowed by Trial Court by resort to proviso to Rule 4, Order 12 and or inherent jurisdiction under Section 151, C.P.C.
4. AIR 1938 Patna 209 (Bihari Sahu and others v. Mt. Sudama Kuer and others), ln this judgment, it is held that powers of Court under Order 6, Rule 17, C.P.C, are not exhaustive and the Court has jurisdiction to allow an amendment to be made in an application to sue as pauper.
5. NLR 1992 CLJ 25 (Hussain Nasser v. Syed Shamim Yaqub). Ln this judgment, it is held that a rule regarding amendments similar to that as incorporated in Order 6, Rule 17, C.P.C, is also invocable in respect of applications. A corollary of such rule is that an amendment sought is not to be disallowed if the same fairly arises in the case and following this principle amendments have been allowed in pleadings even at the stage of Supreme Court proceedings. This, however, is no license for permitting a party to delay or defeat justice by seeking to introduce unnecessary or extraneous material in the garb of seeking amendments.
6. PLD 1985 SC 345 (Mst. Ghulam Bibi and others v. Sarsa Khan and others), In this judgment, it is held that language used in rule 17 of Order VI, C.P.C, to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy is mandatory in nature.......... ". Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts, In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question; it becomes the duty of the Court to permit the amendment. What has been stated above is, however, subject to a very important condition that the nature of the suit insofar as its cause of action . Is concerned . Is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit .Itself would become different from the one initially filed, lt is further held that if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change the question of limitation would then remain only of . Form and not of substance. That is why this Court has so far followed the liberal rule in interpreting Order VI, rule 17 so as to permit amendment if otherwise, necessary notwithstanding the possibility that on account of some formal change, the question of limitation - might have acquired pronounced importance, had it not been a case of amendment under Order VI, rule 17. Other principles governing the question of amendment in pleadings have adequately been determined and examined in the precedent law and no more discussion is necessary insofar as the question^of law and principle is concerned.
7. PLD 1992 SC 30 (Mst. Rahim Noor v. Mst. Salim Bibi and others), ln this judgment, the Hon'ble Supreme Court has held that C.P.C, does not prohibit the permission to amend pleadings even at late stage, when, of course it is otherwise necessary.
8. 2004 CLC 697 (Mst. Mumtaz Begum and others v. Province of Sindh and others), In this judgment, the Division Bench of this Court has held that amendment in pleadings can be sought at any stage of "proceedings" and the expression "at any stage of proceedings" used in Order 6, Rule 17, C.P.C, has to be liberally construed. Even the amendment in the pleadings can be ordered up to the stage of Supreme Court. The Courts are further required in law to allow all such amendments that may be necessary for the purpose of determining the real question in controversy. During pendency of proceedings, if any development takes place in the proceedings, the Courts would not overlook such development and that too when it is material for the purposes of deciding controversy between the parties. The scope for grant of application under Order 6, Rule 17, C.P.C, is Very wide and such application ought to be granted liberally as same restrains parties from multitude of proceedings.
9. 1989 CLC 1459 (Kuwait Flour Mills Co. v. m.v. Kashmir and another), In this judgment, it is held that subsequent developments after filing of the suit are matter of evidence. Pleadings can always be amended and claimed relief can be. Adjusted in view of subsequent happenings,
10. 2005 CLD 836 (Industrial Development Bank of Pakistan v. Messrs Zamco (Pvt.) Limited and others). This is also a case under Financial Institutions (Recovery of Finances) Ordinance, 2001 in which the learned Single Judge of, this Court has held that where the plea raised is supplementary and not destructive that could be allowed to be raised and even the limitation would not come in way to raise such plea. The only consideration should be that the plea should not be inconsistent or divergent to the pleas raised in the plaint earlier, In this case, an application was moved by the defendants Nos. 6, 8 and 9 under Order 6, Rule 17, C.P.C., whereby they sought amendment with additional grounds in the leave to defend application. The application for making necessary amendment was allowed with the direction to file amended application within fifteen (15) days'time.
11. PLD 2008 SC 442 (Agriculture Development Bank of Pakistan v. Mubarak Dairies Limited and others). This matter pertains to Contract Act, Sections 171 and 59. Ln this matter, petitioner was made to know through letter, the specific instructions by the Judgment-Debtor to adjust the specified amount. The Bank having accepted that amount with specific directions to adjust the same into the indicated loan account was bound to adjust the same in that account. The Bank, . In pursuance of the indicated instructions, afterwards had no discretion/power/authority to vary that agreed adjustment for . Any other account on its own whim and will without express consent of the Judgment-Debtor-respondent. Therefore, the. Provision of Section 59 of the Contract Act has rightly been applied by the learned Division Bench, through its judgment to the facts and .
Circumstances of the present case. The wordings of Section, "whether a debtor owing several distinct debts to one person makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debts, the payment, if accepted must be applied accordingly" are clear, used with lucidity and unambiguous, and need no further comments or interpretation to apply it to the facts, and circumstances of the case wherein express intimation was given to the bank by the Judgment- Debtors to adjust the dispute amount into the decretal amount.
The learned counsel for the plaintiff Mr. Badar Alam argued that the defendant has raised altogether new grounds in the application which are not permissible to be taken as it amounts to changing the complexion of written statement. The Chartered Accountant's report is still under objections by both the parties "and has not been taken on record. Order 6, Rule 17, C.P.C, is only applicable for the amendment in the pleadings and not in interlocutory applications. The word "pleadings'" means only the plaint and written statement as defined and envisaged under Order 6, Rule T, C.P.C. The Financial Institutions (Recovery of Finances) Ordinance, 2001 provides where application for leave to defend is accepted, the Banking Court shall treat the application as written statement so according to above provision of law, it is evident that under sub-section (10) of Section 10 of the aforesaid Ordinance, no amendment can be brought in the leave to defend application, which has not attained the status of written statement so far. Lt is further argued that no amendments can be sought on the basis of Chartered Accountant's report. On merits, he argued that the report of Chartered Accountant is contradictory. At page 423 in the Column, adjustment of R, 33 Million on account of floatation of shares in August 1994 is shown in view of Annexure "S" but in the bottom of report, it is mentioned that they were not provided any sanction advices of bank and financing agreements including records such as statements of accounts, deposits slips and bank's debit and credit advices. Lt is further mentioned in the report that statements provided were incomplete as regards the period of account and with respect to transactions. The learned counsel further referred to Annexure 'S' at page 735, which was written by the Vice- President of the plaintiff to the Director of the defendant on 19.12.1994 in which it' was mentioned that the statement indicating adjustment of proceeds of public flotation amount to Rs.
33 Million was handed over to the defendant's representative on 10.10.1994, however another photocopy was again attached to this letter for, ready reference. Learned counsel argued that the defendant is a public limited company, it is not imaginable that; they were working without adjustment of flotation of shares and adjustment of Rs. 33 Million. He also referred to annexure P-1 at page 49 of the file, which was communicated by the defendant to the Senior Executive Vice- President of the plaintiff by which Bela Revitalization Plan was submitted to HBL President on 27.1.1997. He further referred to another Annexure P-7 at page 63 of the file, which was also written by the defendant to the plaintiff* whereby the defendant furnished undertaking that no further rescheduling would be requested by them, In the same letter, another undertaking was furnished for depositing sponsor's shares with transfer deeds within 30 days of the date of sanction.
Alongwith this letter, a resolution copy was attached showing-authorization in favour of Managing Director to negotiate and avail limits of Rs. 120 Million for H.B.L According to this letter, the rescheduling was done in the year 1998 and accordingly, an agreement was signed on 6.4.1998.
Learned counsel referred to a Memorandum for (1) Renewal of RF Limit of Rs. 30.000 (M) upto 31.12.1999, (2) Enhancement of BPF Limit from 2.500 to 7.500 (M) and (3) Deferment of Installments of DF upto March 1999 NO. M/s. Bela Automotive Limited, which is available at page 157 as annexgre P/37. The learned counsel further referred to another letter annexure P/55 available at page 215 of the file, whereby the defendant itself confirmed the agreement of a package for different facilities listed at Sr. Nos. 1 to 6. Alongwith. This letter,, another credit' proposal is also attached. Annexure P/57 at page 219 is an offer letter sent by the plaintiff to the defendant for different facilities i.e. Running Finance,' Cash Finance and FIM, IBP, Demand Finance and Demand Finance (Mark-up Frozen). Finally, the learned counsel for the plaintiff also referred to an Annexure P/55 at page 229, which is an agreement for financing for shot/medium/long term on mark up basis, which was executed on 16.10.1999. The nutshell of the arguments of the learned counsel for the plaintiff is that different facilities availed by the defendant are admitted facilities which the defendant availed against different sanctions of agreements. The application filed for the alleged amendment is not maintainable and based on concpcted grounds. The only purpose of filing this application is just to delay the proceedings. The banking suit was filed in the month of October, 2001 and the leave to defend application (CMA No. 9277) was filed on 22.1*1.2001. Since then, the leave to defend application is pending and the defendants are^ delaying its disposal for one or the other pretext without any lawful justification, ln order to cause more delay, the defendant has adopted a tactic to file this interlocutory application to drag the proceedings for further period under the garb of this application. The learned counsel also referred to the objections filed by the defendant No. 1 to the Chartered Accountant Report, It appears to me that the defendant No. 1 simply highlighted some weakness in the report and also filed an application (CMA No. 7734/2008) With the prayer to refer to the matter to Chartered Accountant-with the directions to account for and reverse entries for the items mentioned at Serial Nos. (i) to (viii) in Paragraph 6 of the application which do not have any adverse affect on the instant application moved for amendment, In support of his arguments, the learned counsel for the plaintiff referred to the following case-law:-
1. 2005 CLD 1489 (Shahid Farooq Sheikh v. Allied Bank of Pakistan Limited), In this judgment, the learned Division Bench of the Lahore High Court has held that written statement could be filed only'after grant*of leave to defend suit. Leave application would be in the form of written statement, but not written statement. Banking Court after granting leave application would treat same as written statement. Written statement filed without grant of leave to defend suit could not be considered. Banking Court while deciding suit would take into consideration only contents of leave application.
2. 2003 CLD 1610 (Messrs Maroof Knitwear (Pvt) Limited v. Allied Bank of Pakistan Limited). This matter pertain to the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, in which, the Hon'ble Supreme Court considered the amendment in the application for leave to defend and held that amendment in application was rightly declined by the Banking Court as well as by the High Court. The borrower raised the plea that the amendment in pleadings could be sought at any stage. The Hon'ble Supreme Court held that Court was vested with the power to allow amendment in its discretion in pleadings at any stage of proceedings but it did not bind the Court to allow the amendment in all cases once application was moved. Discretion exercised by the Court for not allowing the amendment did not suffer from any illegality or arbitrariness, however the Hon'ble Supreme Court allowed the borrower to use material available on record of the suit in support of and to substantiate the grounds raised in the original application for grant of leave to appear and defend the suit. Leave was refused.
3. PLD 1993 SC (Pakistan Fisheries Ltd. And . Others v. United Bank Ltd.), In this judgment, the Hon'ble Supreme Court has considered the . Value of precedents as authority and held that emphasis has to be placed on the material facts, before the Court, for such facts may serve as a guide for the reasons for pronouncement of law by the Judge or the statement of the rule of law followed by him. Ln - this connection, the Hon'ble Supreme Court referred to the remarks of Lord Halsbury in 1901 AC 495 in Quinn v. Leathem "that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified'by the particular facts of the case in which such expressions are to be found."
The reasons of citing the aforesaid judgment by the learned counsel for the plaintiff is to lay emphasis that each and every case should be decided on its own facts and circumstances. He also tried to Distinguish the case-law cited by the learned counsel for the defendant in support of application and argued that none of the case-law is applicable to the peculiar circumstances of this case. He further urged that all the case-law cited by the learned counsel for the defendant relevant to the allowance of amendment in the, pleadings pertains to the civil suits and in some cases the Court allowed the amendment and changed the nomenclature of suits from Declaration to Specific Performance, ln one case the only amendment allowed in relation to the correction of father's name, in some cases the prayer for possession was allowed to be included after the dispossession of the plaintiff and in one case the name of owner was allowed to be corrected as per sale-deed, therefore, according to the contention of the learned counsel for the plaintiff, none or the judgments attracted to the facts and circumstances of the present case, therefore, all judgments are distinguishable.
After considering the pros and cons of this matter, I have reached to the conclusion that the entire controversy is roaming around four different provisions. One is Order 6, Rule 1, C.P.C., which defines that "pleadings" means plaint or written statement. The next provisions which are necessary to be considered are Sections 7 and 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and lastly Order 6, Rule 17, C.P.C. The above provisions read as under:- Order 6. Rule T. C.P.C.
Pleading. "Pleading" shall mean plaint or written statement.
Order 6. Rule 17. C.P.C.
Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and. All such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Sections 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001
7. Power of Baking Courts.- (1) Subject to the provisions of this Ordinance, a Banking Court shall,-
(a) in the exercise of its civil jurisdiction have all the powers vested in Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908)
(b) .................... Provided that a Banking Court shall not.......... (2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) All proceedings before a Banking Court...
(4) Subject to sub-section (5), no Court..
(5) Nothing in sub-section (4) shall be deemed to affect:-
(a) the right of a financial institution to ....
(b) the powers of the financial ......
(6) All proceedings pending in any Banking Court
(7) In respect of proceedings................
Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001
10. Leave to defend.- (1) In any case in which the summons has been served on the defendant as provided for in sub-section (5) of Section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice.* .
(2) The defendant shall file the application for leave to defend within thirty days of the date of first service by anyone of the modes laid down in subsection (5) of Section 9: Provided that.............. (3) The application for leave to defend shall be in the form of a written statement, and shall contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded.
(4) ln the case of a suit......................
(a) the amount.....................
(b) the amount of........... ......
(c) the amounts of ............
(d) the amount if any..... Explanation. For the purposes of clause (b) ...... ..
(5) The application for leave to defend shall be accompanied by all.................
(6) An application for leave to defend
(7) The plaintiff shall be given an opportunity of filing a reply to the application for leave to defend, in the form of a replication.
(8) Subject to Sectioh 11, the Banking Court........
(9) ln granting leave under ..............
(10) ' Where the application for leave to defend is accepted, the Banking Court shall treat the application as a written statement, and in its order granting leave shall frame issues relating to the substantial questions of law or fact, and subject to fulfilment of any conditions attached to grant of leave fix a date for recording of evidence thereon and disposal of the suit.
(11) Where the applications for leave .....
(12) Where an application for leave to.. The contention of the learned counsel for the plaintiff is absolutely right that the term "pleading" only covers the plaint and written statement and interlocutory application is not included in the meaning of "pleading" but at the same time another important aspect cannot be oversight that Financial Institutions (Recovery of Finances) Ordinance, 2001 is a Special Law in. Which under Section 7 it is clearly provided that in exercise of its civil jurisdiction, a Banking Court shall have all the powers vested in Civil Court under the Code of Civil Procedure, 1908 and Criminal Procedure Code, 1898. Though, there is no separate provision for filing interlocutory applications in the Ordinance, 2001 (XLVI) of 2001, but Banking Court has been vested with the jurisdiction to follow the procedure laid down in the Code of Procedure. Being a Special Law, it is clearly provided under sub-section (10) of Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 that where the application for leave to defend is accepted, the Banking Court shall treat the application as a written statement and in its order granting the leave shall frame issues relating to the substantial questions of law or fact and subject to fulfilment of any conditions attached to grant of leave, fix a date for recording of evidence thereon and it is further provided in sub-section- (11) that where the application for leave to defend is rejected or where a defendant fails to fulfill the conditions attached to the grant of leave to defend, the Banking Court shall forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant. The contention of the learned counsel for the plaintiff- if taken correct then, for the necessary amendment, the defendant has to wait first for the allowance of its leave to defend application, whereafter the leave to defend will convert into a written statement and he has to apply for the necessary amendments in the written statement, which is not the wisdom of legislature in the special law referred to above since it is clearly mentioned in this very Ordinance that leave to defend application if allowed, it will be "as it is" converted into a written statement and no separate written statement need to be filed. Let assume that in this matter, Court grants leave on the basis of present leave to defend application and after its conversion into a written statement, the defendant applies for amendment, then again there will be a serious dispute between the parties that no such ground was raised in the leave to defend application,, therefore, after its conversion into a written statement, no amendment is required.To be allowed. Then, the Court will have to consider whether the grounds not taken into the leave to defend application can be entertained in the form of amended written statement. Order 6, Rule 17, C.P.C, is beneficial provision with the aim of curtailing the multiplicity of proceedings and gives a vast discretion to the Court for allowing amendment. Under this provision, the Court may at any'stage of the proceedings allow, either party to alter or amend its pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy between the parties, In a judgment reported in PLD 1985 SC 345, the Hon'ble Supreme Court has held that the language used in Order 6, Rule 17, C.P.C, to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy...,Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question. The Court is required by law to not only to allow an application made by the party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts, ln the cases falling under first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment. If the cause of action does not change the main substance of the suit or nature of the suit would not change and if that does not change the question of limitation would then remain only a form and not a substance. That is why the Court has so far followed the liberal rule in interpreting Order 6, Rule 17, C.P.C, so as to permit amendment if otherwise necessary notwithstanding the possibility that on account of some formal, change, the question of limitation might have acquired pronounced importance, In another judgment reported in NLR 1992 CLJ page 25, the learned Single Judge of this Court has held that a rule regarding amendment similar to that.As incorporated in Order 6, Rule 17, C.P.C, is also invocable in respect of applications. A corollary of such rule is that an amendment is not to be disallowed if the same fairly arises in the case and following this principle, amendments have been made in pleadings even at the stage of Supreme Court proceedings, In another judgment reported in 2005 CLD 836, pertaining to the banking jurisdiction, the learned Single Bench of this Court has taken the cognizance of Qrder 6, Rule 17, C.P.C, vis-a-vis the Financial Institutions (Recovery of Finances) Ordinance, 2001 and held that where the plea raised is supplementary and not destructive that could be allowed to be raised and even the limitation would not come in way to raise such plea. The only consideration should be that the plea should not be inconsistent or divergent to the pleas raised in the plaint earlier, In this judgment, it is nowhere stated that the defendant cannot be allowed to move the application under Order 6, Rule 17, C.P.C, for necessary amendment rather the application filed in the Court was allowed. So for all intent and purpose, the applicability and principle of allowing an application for amendment under Order 6, Rule 17, C.P.C, was upheld and its applicability in the banking jurisdiction conferred under a special law has been approved. The learned counsel for the plaintiff has also relied upon a judgment which is reported in 2003 CLD 1610. Ln this case also, amendment was sought in the application for leave to defend, which was denied by the Banking Court as well as High Court. The Hon'ble Supreme Court held that Court was vested with the power to allow amendment in its discretion in the pleadings at any stage of the proceedings but it did not bind the Court to allow the amendment in all cases once application was moved. Discretion exercised by the Court for not allowing the amendment did not suffer from illegality or arbitrariness. If this judgment is taken into consideration, it also provides ample guidance that application under Order 6, Rule 17, C.P.C, for necessary amendment in leave to defend application is maintainable and entertainable in the banking jurisdiction, however it is a different aspect whether the Banking Court allows or dismisses it. After insertion of Article 10-A by virtue of Constitution (Eighteenth Amendment) Act, 2010 right of fair trial has become a fundamental right under the Constitution of Islamic Republic of Pakistan which envisages that for the determination of civil rights and obligations or any criminal charge, a person shall be entitled to have fair trial and due process.
Constitutional safeguards must be deemed to form part of all laws, It the amendment application is allowed in the present case, it will not cause any prejudice to the plaintiff as immediately after filing the amended leave to defend application, the plaintiff shall have a right to file replication with the additional grounds to controvert the pleas of the defendant. Procedural enactment should be liberally construed so as to render enactment of substantive rights effective. According to a judgment reported in PLD 1995 SC 406, the Honourable Supreme Court has held that all Rules of procedure are meant to promote cause of justice and therefore, they could not be used-as an engine of oppression against a party to suit. Courts do not favour non-suiting of parties on mere technicalities and always prefer decision on merit. The judgments cited by the learned counsel for the defendants on general principle of allowing amendment and legal proposition relating to Order 6, Rule 17, C.P.C, are quite applicable in the present case, while, the judgment cited by the learned counsel for the plaintiff are distinguishable, even in one judgment cited by him which is reported in 2003 CLD 1610, the Honourable Supreme Court in a banking suit observed that amendment is rightly refused by the Banking Court and High Court but in .This judgment also, it is nowhere held that Banking Court has no jurisdiction to allow amendment in the leave to defend application. The defendant has applied the amendments on the basis of Chartered Accountant report and the pleas raised are supplementary but neither destructive, nor inconsistent with nor divergent to the pleas raised by the defendant in the leave to defend application.
For the foregoing reasons, the application is allowed. The defendants are directed to file amended leave to, defend application within ten days and immediately after filing the amendment leave to defend application, the plaintiff shall file replication in the next ten days. Office is directed to fix the leave to defend application for hearing in the Court after expiry of stipulated time.
Amended .