' NOOR-UL-HAQ N. QURESHI, J.--- This is an application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, filed by the defendant seeking leave to defend the suit unconditionally.
2. Plaintiff Summit Bank Ltd. Formerly known as Atlas Bank Limited through the instant suit prays that a decree for sum of Rs,76,581,682.60 be passed in favour of the plaintiff and against the defendant with markup till the realization along with costs of funds.
3. Brief facts leading to this case, as per plaint are that defendant applied working capital finance facility from the then Messrs Atlas Bank Limited, which was subsequently merged into plaintiff bank under notification of State Bank of Pakistan bearing No,BPRD (BPRD-02)/625-99/2010/10580, dated 29-12-2010, which was granted. In this regard, defendant entered into "Agreement for Running Finance on Markup Basis". In accordance with the terms and conditions of the said "Agreement", finance facility of Rs,61,000,000 was provided to the defendant and in accordance with the terms and conditions mentioned in the Agreement, defendant agreed to repay the finance facility with markup to the plaintiff bank. In consideration and acknowledgment of and to secure the said facility, the defendant provided his property as security by deposit of title deeds bearing House No,3, street No,9, Sector F-8/3, Islamabad.
4. It is also alleged in the plaint that defendant in clear contravention and violation of the Finance Agreement, defaulted in making repayment to the plaintiff bank. On the date of filing the suit, Rs,76,581,682.60 is outstanding against the defendant. It is further urged in the petition that despite repeated demands, defendant failed to repay the outstanding amount. Hence, this suit.
5. In response to the notices sent, defendant filed application for leave to appear and defend the suit.
6. The defendant seeks leave to appear and defend the suit mainly on the grounds that suit has neither been properly instituted nor signed and verified by a competent authority and duly authorized person, plaintiff has concealed and suppressed the material documents, authenticity genuineness and admissibility of the documents cannot be proved in the absence of original documents, which must be produced by the plaintiff in the Court, entries in the statement of account being exaggerated and manipulated, plaintiff has not come to the Court with clean hands and suit is not maintainable in its present form.
7. On facts, it is submitted by the defendant that contents of plaint are denied for want of proof. In reply to Para No,5, it is stated that bank issued . Working Capital Finance Facility to him for indefinite period upon the terms of agreement, which he has to pay back through installments as per bank schedule. He has regularly paid back the installments. He returned back Rs,49,252,945.77 till 31-8- 2009. It is further asserted that as per sanction letter and requisite terms and conditions, the applicant/ defendant was bound to deposit monthly installments at the rate of 4% markup, whereas the plaintiff bank had no right or entitlement to recover the amount on excess to duly settled markup of 4%, besides the payment in excess of 4% markup, made by him is paid in shape of Principal amount, which is now denied by the bank. It is further stated in Para 5 of the reply that all of a sudden, plaintiff bank told the defendant that now rate of markup has been increased to the extent of 18% and the excess amount paid by him is about markup, while the defendant has paid Rs,49,252,945.77 out of Rs,6,100,000, but the plaintiff filed a suit for recovery of Rs,76,581,682.60 before this Court without taking into consideration the paid amount mentioned above.
8. In the start of the application, defendant/applicant has stated in Para B of page 1 that plaintiff has already acknowledged the payment made by the defendant through installments till 1-7-2010 and no default has been made by him. It is further alleged that after the financial crises, defendant remained unable to pay the entire amount than it was the duty of the plaintiff bank to facilitate him and receive the installments as was agreed to pay and he is willing to pay the remaining installments as scheduled in the running finance, but the plaintiff bank filed the suit for recovery without any reason and default of the defendant.
9. It is also stated at Page 2 in Para-C that defendant has suffered in great loss in his business and due to financial crisis; he is unable to pay back his due installments. On the other hand, when the concerned bank merged into Messrs Summit Bank, the official of this bank also refused to get the amount from the defendant as installments and ordered to pay back the whole financed amount, which could not be possible for the defendant to arrange at once in any manner. It is further alleged that defendant was not aware of merger of the bank and unable to return back the installments due to financial crisis, which was happened due to loss in business.
10. In the last, it is stated that application for leave to defend the suit be granted unconditional as defendant has raised and bona fide disputed and he be allowed to produce evidence.
11. Plaintiff bank/respondent also filed reply to the leave application and reiterated the contents of the plaint and prayed for the dismissal of the application being misconceived as the defendant has admitted the availing of finance facility and its utilization and also execution of documents, therefore, suit of the plaintiff be decreed.
12. Since learned counsel for the defendant was given one week's time to rebut the contention raised by learned counsel for the plaintiff by arguing his case. Despite elapse of one week, nobody has appeared on behalf of the defendant to rebut the same, therefore, there remains no way except to decide the instant suit on the basis of averments of leave to defend the suit. Mainly the contentions were raised that suit has not been filed by the authorized persons, excess markup has been charged, which is not permissible under the law and the claim of the plaintiff bank is highly exaggerated. Also, defendant has good prima facie case and entitled for leave to defend the suit unconditionally. Also, it is contended that due to financial crisis, defendant failed to pay installments, for which, he is now ready to pay the same in installments.
13. Conversely, learned counsel for the plaintiff has argued that defendant has failed to raise any substantial question of law or fact, which requires any evidence to be recorded. Learned counsel further argued that since no question of fact and law has been raised, application for leave to defend the suit be dismissed and suit be decreed. Learned counsel for the plaintiff bank in support of his contentions has relied upon the following case-laws reported in "2011 CLD 393 (Allied Bank Limited v. Muslim Cotton Mills Private Limited and 3 others)" 2012 CLD 189 (National Bank of Pakistan v. Messrs Apollo Textile Mills Limited and 4 others) and "2003 SCM R 1156 (Siddique Woollen Mills and others v. Allied Bank of Pakistan).
14. Arguments heard and perused the record minutely.
15. Now taking up the first submission of the learned counsel for the applicant/defendant that suit has not been filed by competent person, hence, the same is liable to be dismissed. The examination of the record shows that two persons namely Mr. Kamran Ashraf and Mr. Muhammad Naeem Khalique have filed the suit under their signatures, who have appointed attorney by the bank and its common seal. Power of Attorney of both the officers are available on record as Annexures-A and B, respectively. Both the Power of Attorneys have been executed by the President of the Bank in favour of both the above named attorneys and the same are notarized in accordance with law. Accordingly, I hold that suit has been validly filed and the same is maintainable.
16. From the perusal of plaint and PLA, it revealed that defendant applied Working Capital Finance Facility 'from the. Then Atlas Bank Ltd, which was allowed and defendant is availing the same and in consideration and acknowledge of and to secure the finance facility, the defendant provided his property as security by deposit of title deeds of his house and other documents. It is admitted by the defendant in his application for leave to defend the suit at page 1 in Para B that plaintiff has already acknowledged the payment made by the defendant through installments till 1-7-2010 and no default has been made by him. It is further admitted that after the financial crises, defendant remained unable to pay the entire amount, than it was the duty of the plaintiff bank to facilitate him and receive the installments as was agreed to pay and he is willing to pay the remaining installments, as scheduled in the running finance, but the plaintiff bank filed the suit for recovery without any reason and default of the defendant.
17. It is also admitted at Page 2, in Para. C that defendant has suffered in great loss in his business and due to financial crisis, he is unable to pay back his due installments. On the other hand, defendant has stated that when the concerned bank merged into Messrs Summit Bank the official of this bank also refused to get the amount from the defendant as installments and ordered' to pay back the whole financed amount, which could not be possible for the defendant to arrange at once in any manner. It is further admitted that defendant was not aware of merger of the bank and unable to return back the installments due to financial crisis, which was happened due to loss in business.
18. It is also note-worthy to note here that in reply to Para 5 of the plaint, defendant has admitted the issuance of capital finance facility for indefinite period upon the terms of agreement, which he has to pay .Back through installments B as schedule of the bank. It is also admitted that he is regularly paying the installments but due to unavoidable circumstances, same was not paid.
19. Since the defendant has not discharged his obligation as per agreement, suit has rightly been filed by the plaintiff. Defendant has failed to make out any substantial question of law as well as facts in respect of which any evidence is required to be led by the parties.
20. In view of above discussion, the application for leave to defend the suit is not made out, which is dismissed. Consequently, the suit of the plaintiff is decreed against the defendant with cost in the sum of Rs,76, 581,682.60 along with costs of funds at the prevailing rate fixed by the State Bank of Pakistan from the date of default till realization. Such decree is to be executed, inter alia by the sale of mortgaged properties and hypothecated stocks, if any. Office is directed, to prepare the decree sheet .Immediately. The suit is converted into execution proceedings under section 19(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and the decretal amount shall be recovered through execution of decree in accordance with the provision of Code of Civil Procedure or any other law for the time being enforced or such manner as the Court order on the request of the decree holder cbnsider appropriate, including recovery as arrear of land revenue. Execution proceedings are entrusted to Additional Registrar (Judicial) in view of section 11 of Sindh Chief Court Rules, who shall exercise powers vested under section 11 ibid.