' SALMAN HAMID, J.--- A suit for recovery of Rs,98,559,237.50 under Financial Institutions (Recovery of Finances) Ordinance 2001 (Ordinance 2001) was filed by the plaintiff against defendants Nos.1 to 3, wherein it was claimed that at the request of such defendants the plaintiff sanctioned four financial facilities in favour of defendant No,1 i,e, (1) Cash Finances (Pledged) of Pak. Rs,100 million, Cash Finances (Hypothecation) of Pak. Rs,78 Million, FE 25 (Export Finance) of Pak. Rs,78 million and
(4) Post Shipment Loan/Discount Bills with F.E. 25 of Pak. Rs,100 million. However, financial assistances mentioned at Serial Nos.(1), (3) and (4) were not disbursed for want of and/or lack of security by defendant No,1; whereas financial facility mentioned at Serial No,(2) of Pak. Rs,78 million after sanction was also disbursed. An Agreement of Financing dated 19-2-2004 was executed in respect thereof. The defendants Nos.2 and 3 also furnished personal guarantees on behalf of defendant No,l. It was claimed in the plaint that this financial facility was renewed first time in the year 2005 in terms of facility offer letter dated 31-12-2005; then in 2006 in terms of facility offer letter dated 31-12-2005 and lastly in 2007 up to 31-12-2007 in terms of facility offer letter of the instant followed by the execution of financial agreements of the respective period. Corresponding security documents were also executed by the defendant No,1 and also by defendants Nos.2 and 3 which, amongst others included defendants Nos.2 and 3's personal guarantees. It was mentioned by the plaintiff that this amount not forthcoming and/or repaid, the plaintiff served notice of recovery last of which was dated 20-6-2009.
2. The defendants Nos.4 and 5 were arrayed as such, they being a pari passu charge holders of the hypothecated goods. No relief was sought by the plaintiff against such defendants.
3. Defendants Nos.1 to 3 filed their leave to defend applications within the stipulated period prescribed for. Narrations of the leave to defend applications would show that by way of preliminary objections, the ground of maintainability of the suit was raised inasmuch as that according to such defendants person who filed the recovery suit on behalf of the plaintiff did not have the authority and that nothing was due and payable by these defendants to the plaintiff.
Therefore, no cause of action had accrued to the plaintiff for filing the present suit. On merits it was alleged and/or urged that the plaintiff having failed to honour their commitments in making disbursements of three financial facilities, mentioned above at (1), (3) and (4), such defendants sustained losses and that it was claimed that an amount of Rs,13,261,641,097 were due and payable by the plaintiff to these defendants. That recovery suit for such losses would be preferred. The entire narration of the leave to defend applications(s) revolved around such losses and/or claim in respect thereof. Nowhere in the leave to defend application(s) it was specifically denied that the amount due and payable was not as such and/or no entry was specifically shown from the statement of account that the amount was not due and payable. Only general allegations with ' regard to non-disbursement of the finances had been raised: As a matter of fact at various places the execution of agreements and guarantees were not disputed or denied but only it was mentioned that such execution was conditional and based on reciprocal promises which the plaintiff did not perform.
4. In rebuttal, the plaintiff re-enforced its claim. It was mentioned in the replication that the financial facilities mentioned at Nos. (1), (3) and (4) above had not been disbursed because the defendant No,1 was a defaulter and its name had appeared as such in CIB of State Bank of Pakistan which was reported by another creditor of the defendant No,
1. The other reason for non- disbursement of financial facilities was shown to be that the defendant No,1 failed to offer any security for such financial facilities. Lastly it was mentioned that since huge amount was outstanding against these defendants towards present finance facility (the subject matter of the present suit), rest of the three finances could not be disbursed.
5. Defendant No,4 also filed its leave to defend application, wherein it was mentioned that the defendant No,1 have forcibly removed the chowkidar and the Muccadam from the premises of the godown and the pledged stock of Rs,48,401,000 was illegally taken away by the defendant No,1 and that the defendants Nos.1 to 3 are the defaulters of defendant No,4. Recovery suit No,B-78 of 2009 against such defendants is pending before this court for recovery of Rs,509,286,661.94.
6. However, in stark contrast to what was raised in the leave to defend application(s), learned counsel for the defendants 1, 2 and 3, at the time of hearing attempted to argue that the plaintiff have failed to meet the test of section 9(2) of Ordinance 2001 inasmuch as that statement of accounts that was filed by the plaintiff does not conform to the requirements thereof. Therefore, it was urged that plaint was liable to be rejected and at best the defendants Nos.1 to 3 are entitled to leave unconditionally. The cases which were cited by the learned counsel for the plaintiff on such point were C.M. Textile Mills (Pvt.) Limited through Chairman and 5 others v. Investment Corporation of Pakistan (2004 CLD 587), Bank of Punjab through Manager v. Mrs. Mah Tallat Sultan and another (2006 CLD 773), National Bank of Pakistan through Manager v. Messrs Mujahid Nawaz Cotton Ginners through Partners and 6 others (2007 CLD 678), Bankers Equity Limited and 5 others v.
Messrs Bentonite Pakistan Limited through Chief Executive and 7 others (2010 CLD 65) and Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited and 3 others (2011 CLD 408).
7. I have gone through the case-law cited by learned counsel for defendants Nos.1 to 3 and have also looked into the documents filed by the plaintiff and the defendants.
8. Argument that was raised by learned counsel for the defendants Nos.1, 2 and 3 on section 9(2) of Ordinance 2001 would have had some force and could have been looked into had there been a case on merits vis-a-vis that the denial for payment of the liability was clearly made out. Since in the leave to defend application there is no categorical denial of the liability to pay back and only it is passingly mentioned, that nothing was due and payable without any substantiation, there is available hardly any ground which could be taken as "substantial". The defendants Nos.1, 2 and 3 nowhere have disputed the disbursement of the financial facility or have brought to the notice any payment not reflected in the Statement of Account. The defendants Nos.1, 2 and 3 have not disputed debit and credit entries in the Statement of Account nor have they denied or disputed the execution of security documents. The defendants Nos.1, 2 and 3 did not also make compliance of the provisions of section 10(4) of Ordinance 2001. Details of finance availed, amounts paid with dates amounts outstanding and amount disputed are not shown or available in the leave to defend application(s).
9. The statement of accounts filed with the plaint sufficiently fulfils the requirements of section 9 of Ordinance 2001 and section 2(8) of Bankers' Books Evidence Act 1891 inasmuch as that all the entries relevant for the purposes of determination of the liability are available which statement of accounts was not disputed or challenged, save that it does not conform strictly with the requirements of the Bankers' Books Evidence Act 1891 and, therefore, it should not be looked into. In my opinion the plaintiff having given the statement of account in sufficient detail and break-up, not only therein but also in the body of the plaint, have met the 'requirements of section 9 of Ordinance 2001 as the requisite information was ably communicated to the defendants Nos,1 to 3.
Regarding authorization of the plaintiff, I have examined the relevant document and I am convinced that the present A suit was competently filed.
10. Above trace would show that no substantial question of law and fact was raised by defendants Nos.1, 2 and 3 in their leave to defend application(s) that requires recording of evidence for which leave was necessary and they (defendants Nos.1, 2 and 3) also having admitted their liability (para 12[a]), no case for leave was made out. Therefore, such are dismissed.
11. However, the plaintiff is still required to file break up of accounts, showing therein specifically the principal amount disbursed, the resale price thereof, separating it from accrued mark up, if any, so that further action by way of passing of final decree is followed. This exercise be conducted and concluded by the plaintiff within fortnight from the date of announcement of this order. Similarly, the defendants Nos.1 to 3 are also at liberty to file detailed statement of accounts on the above lines and within the period, as mentioned above.