' QAISER RASHID KHAN, J.---The instant appeal has been preferred by the appellant bank under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against the judgment and decree dated 4-11-2006 passed by the learned Judge, Banking Court-II, N.-W.F.P., Peshawar.
2. Succinct facts leading to the instant appeal are that the respondent/defendant through his application dated 3-6-1997 applied to the appellant/bank for financial assistance; which was accepted and an amount of Rs,433,000 was sanctioned for the purchase of tractor and Rs,22,400 for its implements on 21-8-1997 and 4-12-1997, respectively, which amount was accordingly received by the respondent. By way of security the respondent mortgaged his Agricultural property in favour of the appellant/plaintiff/bank. Moreover, a finance agreement was also executed in, favour of the appellant/bank by the respondent. As per the terms of the agreement the respondent had to pay buy back price/mark up of Rs,785,352 to the appellant/bank through eight yearly installments with effect from 7-7-1998 to 7-7-2005. However, the respondent only paid a sum of Rs,33,543 to the appellant/bank towards the adjustment of his liability and on his failure/neglect/refusal to pay the regular installments as well as outstanding dues, the appellant was constrained to file a recovery suit against him before the learned Banking Court
3. The respondent/defendant when served under section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, filed an application for leave to defend the suit. The learned trial Court after obtaining written reply from the appellant/plaintiff to the application of respondent/defendant, heard the arguments of the learned counsel for the parties and passed the impugned judgment and decree dated 4-11-2006, hence the instant appeal.
4. Arguments heard and record on file perused with the valuable assistance of the learned counsel of the parties.
5. Admittedly, as per terms and conditions of the agreement executed between the parties, the respondent was obliged to pay regular yearly installment to the appellant/ bank but during all those eight years till the suit was finally decreed the respondent displayed total indifference in respect of his monetary liability that he owed to the appellant/bank and paid only a token amount of Rs,33,543. Thus the appellant had little option but to knock at the door of the learned Banking Court through a recovery suit claiming the entire amount outstanding against the respondent. On the refusal of the learned Banking Court to grant leave to defend the suit to the respondent, the suit was decreed on 4-11-2006. Little wonder that the learned Judge Banking Court on the one hand dismissed the application for leave to defend the suit of the respondent/defendant and decreed the suit of the appellant/plaintiff but strangely enough determined some schedule of installments for the respondent to pay off his liabilities and that too, payable upto 7-7-2008. We have been unable to understand the rationale and wisdom behind the judgment and decree so passed by learned Judge Banking Court which he was not empowered and authorized under the Ordinance ibid to pass and. That too, when the date of expiry of the buyback agreement was itself 7-7-2008.
6. Thus the learned Judge Banking Court clearly violated the mandate of Ordinance ibid and in his volition stretched the date of payment of outstanding dues to 7-7-2008 which is patently illegal and thus not tenable. For brevity's sake it may be mentioned that though 7-7-2008 was the date of expiry of the limit but in a situation when the respondent had been regularly paying the due installments. In the case in hand the default committed by the respondent resulted in recalling the entire outstanding amount through a recovery suit.
7. The learned counsel for the appellant submitted that even to date the respondent has not paid off his liabilities even after three years of the expiry of the limit.
8. At this stage, learned counsel for the respondent produced the statement issued by appellant/bank on 28-11-2011 duly signed by the Manager as well as Assistant Manager (Operations) vide which the respondent has paid an amount of Rs,345,000 to the appellant/bank after the suit was decreed. Thus after deducting the amount of Rs,33,543 so paid by the respondent earlier to the appellant/bank together with Rs,345,000, a sum of Rs,406,809 stands outstanding against the respondent. Needless to mention that the agreement between the parties stood expired on 7-7-2008 after which no further mark up can be claimed by the appellant/bank from the respondent.
9. As a sequel to the above detailed discussion, the instant appeal is accented, the judgment and decree of the learned Judge Banking Court-II, N.-W.F.P. Peshawar dated 4-11-2006 is set aside and the suit of the appellant/plaintiff is decreed for a sum of Rs,406,809 with costs of fund in terms of Ordinance ibid along with costs of suit.