JUDGMENT MUHAMMAD TASNIM, J. - This suit has been filed by the plaintiff under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called "Ordinance 2001") for a Decree in the sum of Rs. 137,216,749/- with further prayer for a decree for sale of mortgaged property, pledged goods mentioned in the plaint alongwith costs of funds from the date of default till its realization.
2. The facts giving rise to the present suit as per plaint are summarized as under:-
3. The plaintiff-Bank being the assignee and successor-in-interest of ABN Amro Bank (Pakistan)
Ltd., which subsequently merged in the plaintiff-Bank. It is the case of plaintiff that the. Prime Commercial Bank was merged into ABN Amro Bank and all the liabilities, interests, accounts of Prime Commercial Bank were transferred to the ABN Amro Bank with the permission and under the rules and regulations of SBP. Then one again, the ABN Amro Bank was acquired by the Plaintiff Bank with the approval of SBP and again all the liabilities, interest, accounts of ABN Amro Bank were subsequently transferred to the Plaintiff Bank. It is further case of plaintiff that as the Defendant was the Customer of Prime Commercial Bank and all the Defendant's payment obligations and liabilities that he owed towards the Prime Commercial Bank under the terms and conditions of finance agreement(s) executed between the Prime Commercial Bank and the Defendant, after the merger/acquisition of Prime Commercial Bank into ABN Amro Bank's merger/acquisition into the Plaintiff Bank, stands transferred to the Plaintiff Bank and the Defendant owes the outstanding liabilities towards the Plaintiff Bank.
4. At the request of the defendant following finance facilities were granted to him:
(i) Running Finance Facility of Rs.70,000,000/- '
(ii) Finance against Trust Receipt of Rs. 10,000,000/-
(iii) Letter of Credit of Rs.80,.000,000/-
(iv) Finance against Imported Merchandise of Rs.28,000,000/-
5. In consideration of above finance facilities, number of documents including agreement of running finance, memo, of confirmation of sale and buy back, irrevocable authority to recovery accrued mark-up, demand promissory note, letter of continuity, memorandum of deposit of title deeds and continuing guarantees were executed and delivered by the defendant to the plaintiff. In addition to above, defendant also created registered mortgage in favour of plaintiff-Bank. It is further case of the plaintiff-Bank that vide letter dated 22.11.2007 finance facility against imported merchandize was enhanced from Rs, 28,000,000/- to Rs. 40,0, 000/-. In consideration of the aforesaid enhanced finance facility on account of finance against Imported merchandize, further documents in shape of agreement of finance, promissory note, letter of continuity, letter of pledge, ^ continuing guarantees were also executed.
6. The aforesaid finance facility was availed by * the defendant but same was not repaid as agreed, in the circumstances present soil was fifed by plaintiff-Bank as aforesaid.
7. After service of summons upon the defendant, defendant appeared and filed leave to defend application on 03.08.20D9. On receipt of copy of leave to defend application plaintiff-Bank filed its replication on 18.01.2010. After hearing the parties, the Court dismissed the application for leave to defend inter alia on the grounds that availment of facility was admitted, execution of documents were also admitted and application for leave to defend was not in conformity of the provisions of sub-section (3), (4) & (5) of Section 10 of the Ordinance, 2001 hence by invoking Section 10(6) of the Ordinance, 2001 application was dismissed. While dismissing leave to defend application, Court ordered the parties to file their respective break up of accounts within two weeks from the date of order. The Court while dismissing leave to defend application had observed as under:- "......... In view of the above the objection of the Defendant on the suit being filed incompetently is overruled and further due to the candid admission of payments made and payments due by the Defendant and the same not being supported by documentary evidence of any repayments made by the Defendant and further admission to the execution of the several documents to which the Defendant has admitted in his leave to defend application, this Court is dismissing the leave to defend application as in the same the Defendant has failed to raise any substantial questions of law and facts and in fact it does not comply in substance with the mandatory provisions of sub- sections (3), (4) and (5) of Section 10 of the Ordinance and lastly the non-compliance of the mandatory provisions of Section 10(4) of the Ordinance and thus the parties are directed to file their respective break up of accounts within two weeks from today."
8. In terms of above order, both the parties filed their break up of claim. After filing of claim, learned counsel for parties were heard. With the assistance of learned counsel for the parties record has been examined. Learned counsel for the parties also explained the entries in the break up of claim.
The break up filed by the defendant is as under:- "Finance availed by the defendant from the Prime Commercial Bank and ABN Amro bank Rs.
37.573m Finance payable by the defendant to above banks Rs. 12.900m."
9. Whereas the plaintiff-Bank has filed four breakups, one relating to running finance facility, other in respect of finance against imported bills, third relating to finance against the trust receipts and fourth one is in respect of finance against documents (L.C). .10. An examination of the break of claim relating to all the finance facilities filed by the plaintiff- Bank shows that breakup relating to running finance facility contains principal amount availed by the defendant. It also reflects the repayments made by the defendant to the plaintiff-Bank on account of principal, it also shows the mark-up accrued upon the finance availed and it further shows that no payment on account of mark-up has been paid by the defendant to the plaintiff- Bank. Learned counsel for plaintiff submitted that while remaining within the upper limit of Rs.
70,000,000/- the defendant not only withdrew various amount from account and also deposited various amount in the same account from time to time.' He further submitted that plaintiff-Bank charged mark-up on day-to-day basis on each day on the exact amount that stood withdrawn in the account of that particular day. Learned counsel further submitted that while remaining in the limit of Rs. 70,000,000/- defendant availed an amount of Rs. 190,731,569.28 and amount paid by defendant on account of finance facility was Rs. 96,378,008.28/-. He also pointed out that mark-up charged on the amount availed by the defendant comes to Rs. 15,504,222.00/-. He further submitted that nothing was paid on account of mark-up by the defendant to the plaintiff-Bank. In this way an amount of Rs. 109,857,783.00/- is recoverable from the defendant by the plaintiff-Bank on account of Running Finance Facility.
11. The break-up provided by the plaintiff-Bank on account of running finance facility is quoted hereunder:- "i. RUNNING FINANCE FACILITY OF Rs. 70.0. 000/- The RF Facility expended by the Defendant was Rs. 70,0, 000/-. While remaining within their upper limits of Rs. 70,000,000/- the Defendant withdrew various amounts from his account from time to time and also deposited various amounts in the same account from time to time. The Plaintiff Bank charged mark-up on a day-to-day basis with mark-up charged on each day was on the exact amount that stood withdrawn in the account on that particular day, the amounts given below are based on total turnover in the account with aggregate credits amounts subtracted from aggregate debit amounts to arrive at the current amounts.
(a) The amount of finance availed by the Defendant belong the Total amount withdrawn by the Defendant from its account from time to time] Rs.190,731,569.28
(b) Amount paid by the defendant and adjusted by the Plaintiff Bank in Principal Amount [Being - the total amount deposited by the defendant in his account from time to time] Rs. 96,378,008.28/-
(c) The amount of mark-up charged by the Plaintiff Bank at the rate of 3 Months KIBOR + 1% Rs.
15,504,222.00
(d) Amount of mark-up paid by the Defendant to the Nil Plaintiff Bank. Nil Principal Outstanding as Claimed in plaint Rs.94,353,561 .00 Rs. 15,504,222.00 Mark-up Outstanding Total amount of Finance, payable by the Defendant (Principal Outstanding Plus (+) Mark-up Outstanding in respect of RF Facility: Rs.109,857,783.00/-''
12. Break-up of claim pertaining to finance against imported bills shows that amount of Rs.
40,000,000/- was sanctioned and defendant availed an amount of Rs. 39,645,131.21, the amount paid by the defendant to the plaintiff-Bank on account of principal is Rs. 27,771,131:21/- but no payment was made on account of. Mark-up. The break up of claim o f the plaintiff-Bank on account of above finance facility is as under:- "2.FINANCE AGAINST IMPORTED BILLS (FIM) OF Rs. 40.000.000/- (a)The amount of finance availed by the Defendant [being the total amount withdrawn by the Defendant from its account from time to time] Rs. 39,645,131.21/-
(b) The amount of mark-up charged by the Plaintiff Bank Nil Total Amount agreed to be paid by the Defendant (a+b) Rs.39,645,131.21/- Amount paid by the Customer
(a) Amount paid by the Defendant and adjusted by the Plaintiff Bank in Principal Amount (being - the total amount deposited , by the Defendant in its account from time to time] Rs.27,771,131.21/- (b)The amount of mark-up charged by the plaintiff Bank Nil (c)Amount paid by the defendant and adjusted by the Plaintiff Bank in mark-up amount: Nil Total of (a) and (c) amount paid by the Defendant Rs 27 771 131 21/- Principal Outstanding as Claimed in plaint RS. 10,209,000/- Mark-up Outstanding NIL Total amount payable by the Defendant with regard to this Finance Facility: Rs. 10,209,000/-"
13. With regard to finance against trust receipts, the amount sanctioned to the defendant was Rs.
10,0, 000/- and the amount availed by the defendant was 9,834,829.00/-, but no payment was made on account of principal by the defendant. The amount of mark-up accrued on the above amount comes to Rs. 344,220.00/-, total amount recoverable by the plaintiff-Bank from the defendant comes to Rs. 10,179,049/-. The break up of finance against trust receipts is quoted hereunder:- "3. FINANCE AGAINST TRUST RECEIPTS OF Rs. 10.000.000/- The amount of finance availed by the Defendant Rs.9,834,829.00/- The amount of mark-up charged by the Plaintiff Bank at the rate of 3 Months KIBOR +1% Amount paid by the Customer .
(a) Amount paid by the Defendant and adjusted by the Plaintiff BanK in Principal Amount:
(b) The amount of mark-up charged by the Plaintiff Bank Rs.344-220.00/-
(c) Amount paid by the Defendant and adjusted by the Plaintiff Bank in Mark-up Amount: Total of (a) and (c) amount paid by the Nj, Defendant Principal Outstanding as claimed in plaint Rs. 9,834,829.00 Mark-up Outstanding Rs.344,220.00/- Total amount payable by the Defendant with regard to this Finance Facility: Rs. 10,179,049/-"
14. Lastly the break up of claim regarding finance against documents (LC) shows that total amount sanctioned was Rs. 80,000,000/-, the amount availed, by defendant Rs. 5,428,559.00/-, no amount was repaid by the defendant oh account of principal. The mark-up accrued upon the aforesaid amount comes to Rs. 1,542,558.00/-, no payment was made on account of mark-up leaving the amount recoverable by the plaintiff Bank from the defendant to Rs. 6,970,917.00/-. The break up of finance against documents (LC) is quoted hereunder:-
4. FINANCE AGAINST DOCUMENTS (1C) OF Rs. 80.000.000/- The amount of finance availed by the defendants Rs.5,428,359,00/- The amount of mark-up charged by the Plaintiff Bank at the rate' of 3 Months KIBOR+ 1% I Amount paid by the Customer
(a) Amount paid by the Defendant and adjusted by the Plaintiff Bank in V Principal Amount; NIL
(b) The amount of mark-up charged by the Plaintiff Bank Rs. 1,542.558.00/-
(c) Amount Paid by the Defendant and adjusted by the Plaintiff Bank in Mark-up Amount: Nil Total of (a) and (c) amount paid by the Defendant: Nil Principal Outstanding as claimed in plaint Rs 5428,359.00/- Mark-up outstanding Rs. 1,542,558.00/- Total amount payable by the defendant with regard to this Finance Facility: Rs 6 970 917 00/-
15. On the other hand the examination of the break up submitted by defendant shows that defendant had availed finance facility from the Prime Commercial Bank and ABN AMRO Bank io Rs.
37.573 Million. It also shows that finance payable by the defendant to the above bank is Rs. 12.900 Million, but nothing has been produced on record to substantiate the amount mentioned in the break up filed by the defendant. On the contrary plaintiff-Bank has produced on record photostat copies of all the documents mentioned in the earlier part of the order, which were executed by the defendant and delivered to the plaintiff-Bank in consideration of all the four finance-facilities availed by them. There is no, denial on the part of the defendant that facilities mentioned above were not availed by the defendant from the Prime Bank or ABN Amro Bank which were subsequently merged in the Plaintiff Bank. There is also no denial on the part of the defendant to the execution of the documents delivered by defendant to the Prime Bank or ABN Amro Bank.
16. Learned counsel for defendant did not dispute or challenge the entries mentioned in the breakup of statement filed by the plaintiff-Bank during the course of arguments. He only relied upon the breakup filed by defendant as quoted hereinabove.
17. Perusal of the record shows that availment of financial facilities on account of running finance facility, finance against imported bills, finance against trust receipts and finance against documents (LC) are admitted. Execution of documents by defendant is also admitted and plaintiff- Bank has successfully established its claim on account of above finance facilities, which are recoverable by the plaintiff-Bank from the defendant. The break filed by plaintiff bank clearly show the payments made by defendant in different finance facilities.
18. In the circumstances of the case, suit of plaintiff is decreed as prayed with costs of funds from the date of default till realization, costs of the suit is also allowed.