' SADIQ HUSSAIN BHATTI, J.---The appellants are aggrieved by and dissatisfied with the Judgment and Decree dated 12 November, 2010 passed by a learned Single Judge in Suit No,B-9 of 2010 whereby appellants' application for leave to defend was dismissed and the suit filed by the respondent against the appellants was decreed. Through the present HCA the same judgment and decree have been assailed by them.
2. Brief facts of the case are that appellant No,1, a public limited company, carrying on business of printing and publishing, obtained finance facility from the respondent in the year 2005 which was valid up to 31-5-2006. From time to time the facility was renewed and enhanced and lastly the finance facilities were renewed in January, 2009. The terms and conditions which were settled, for the finance facility were contained in letter dated 31-1-2009. For repayment of the facility and due discharge of their liability, the appellants hypothecated their stock of cardboard, paper, ink and deposited original title deeds of plot D-118, SITE, Karachi with all buildings, machinery, equipment, accessories, etc. Thereon. The appellants Nos.2-4 also executed guarantees in their personal capacities for repayment of the finance facilities. When the appellants committed breach of the terms contained in letter dated 31-1-2009 and defaulted in fulfillment of their 'obligations towards repayment of the finance facility, the appellant No,1 was served with a legal notice dated 7-8-2009 which was replied and a request for deferring the current overdue payment till 31-12-2009 was made which was declined by the respondent. Accordingly, a final notice dated 5-12-2009 was served by the respondent on the appellants, recalling the finance facility and calling upon the appellants to clear their liability within 10 days from the receipt of the notice. As the appellants failed to discharge their liability within the stipulated period, the respondent filed Suit No,B-9 of 2010 for recovery of the defaulted amount notice whereof was served on the appellants who filed an application seeking leave to defend the suit as required under the law. A learned Single Judge of this Court heard the application for leave to defend filed by the appellants and dismissed the same vide the impugned judgment and decree. Therefore, the appellants have filed the present High Court Appeal assailing the judgment and decree dated 12-11-2010 passed in Suit No,B-9 of 2010.
3. Learned counsel for the appellants contended that according to the Sanction Letter dated May 31, 2005, the Running Finance Facility was for a period of one year only, however, the appellant No, 1 continued to repay RFF even beyond the expiry of the agreement. It was also contended that several documents were got signed by the respondent from the appellants. It was contended that no fresh finance was disbursed by the respondent to the appellant No,1 after expiry of the RFF on May 31, 2006. It was also submitted that no supporting bank statement was filed by the respondent reflecting the mark-up levied. It was also argued that rate of markup was not mentioned. It was further argued that the additional documents filed with the replication were not fil+ed with the plaint of the suit. It was also contended that the learned single Judge was not justified in straightaway decreeing the suit as it was the duty of the Court to apply its judicial mind to the documents placed before it.
4. On the other hand, learned counsel for the respondent denied that any documents were forcibly got signed by the respondent from the appellants. He stated that it is an admitted position that the appellants availed finance facilities from the respondent-bank and all the documents required by the respondent-bank for extending such finance facilities to the appellant No,1 were executed voluntarily by the appellants. He referred to various documents to show that even after 31st May, 2006, the appellants kept withdrawing money from their account' under the finance facility provided by the respondent-bank. He stated that the learned single Judge correctly declined the leave to defend to the appellants and decreed suit of the respondent as the appellants failed to fulfill the conditions for grant of leave to defend. He further stated that the learned Single Judge has amply dealt with the objections of the appellants in an elaborate manner and even discussed the judgments relied upon by the appellants. He also denied that, the statement of account was not filed as, according to him, Annexure J to the plaint contains all the entries up to September, 2009.
5. We have hard the learned counsel for the parties and have perused the record with their assistance.
6. It is an admitted fact that when the leave to defend application was dismissed vide the impugned order the suit of the respondent bank was decreed. However, it is to be seen as to whether the documents placed before the learned Single Judge were confidence inspiring so as to call for decreeing the suit. In this regard the learned counsel for the appellants relied on the case reported as C.M. Textile Mills (Pvt) Ltd. v. Investment Corporation of Pakistan (2004 CLD 587) wherein it was observed as under:- "9-A. It is plaintiffs burden to set out and formulate a plaint complaint with mandatory requirements of the law. To succeed in the suit, the plaintiff has to prove its claim as raised and pleaded in the plaint. If the suit has been developed on documents, the plaintiff will be entitled to the relief only on showing the cause(s) of action to arise from the documents sued upon. The requirement of exact adherence to the legal demands is more stringent for the plaintiff invoking jurisdiction of special Court created under a special law when the conditions and pre-requisites for resort to such jurisdiction have been specifically and expressly prescribed in the special law.
The Court in such matters cannot presume plaintiff assertions and pleadings to be correct. The Court has to apply the terms of the special law as also the requirements of proof. The Courts are to follow the word of law than to follow the words of plaint even in absence of a contest from a defendant."
7. One of the documents placed before the learned single Judge by the respondent/plaintiff bank along with the plaint was a letter dated December 22, 2009, addressed by appellants to the respondent bank in response to the legal notice, which makes it crystal clear that the appellants were availing the finance facility extended by the respondent bank right up to December 22, 2009 and they were unable to meet their repayment obligations for which they requesting the respondent bank to defer the repayments. The letter reads as under:-- "Sub: Payment of overdue Mark up and monthly installments.
' Dear Madam, ' With reference to your letter COB/AREA-II/SOUTH/ 306/2009 dated December 19, 2009, while acknowledging with thanks the kind cooperation we have been receiving from your esteemed Bank, we wish to inform you that due to prevailing economic recession, domestic business position and political instability in the country we could not make payments of our outstanding markup and quarterly installments as our process of recovery of the accounts was slow.
' However, we are making our best efforts in processing our overdue accounts and anticipating the improved recovery position in near future. It is in this context that we seek your further cooperation by showing flexibility in servicing the markup by 31st December,. 2009 and also request you to defer the payments of term finance installments for one year." (underlining is ours).
8. This letter does not leave even an iota of doubt that the appellants admit that they have not been able to make payments to the respondent bank on time and sought 'further cooperation' of the respondent bank. In case what is argued before us is correct - that the RF facility expired on May 31, 2006 and no disbursement were made thereafter, then the contents of the letter re- produced above are absurd. Nowhere in the leave to defend application or before us it has been alleged that this letter was not written by the appellants to the respondent bank. It is strange that on the one hand the appellants are alleging that "admittedly no disbursement was made under the so-called agreement of 2009 the said agreement and documents, being without consideration are null, void and sham documents", and on the other hand, vide the above quoted letter, they are appreciating with thanks the kind cooperation extended to them by the respondent bank and admitting their own default.
9. It was also argued that the claim of the respondent bank was not supported by Statement of Account and thus mandatory provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as "Ordinance, 2001") were violated which rendered the, plaint liable to be dismissed. Reliance was placed on the case of Bankers Equitu Limited and others v. Bentonite Pakistan Limited and others (2003 CLD 931) wherein a learned single Judge of the Lahore High Court held as under:-- "7. In view of the above, subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory for a Banking institution to support its plaint in a suit against the customer by a Statement of Account duly certified under the Bankers' Books Evidence Act, 1891 and also by all other relevant documents relating to grant of finance. Without such a 'Statement of Account' filed along with the plaint, a customer will obviously-remain totally unaware of the amount advanced, mark-up charged and the basis, break-up, premise, mode of calculation of account, nature of default and the actual amount of Bank's claim against the defendant-customer. He will thus be unable to frame his defence within the limited period prescribed by law, to show reasonable, serious and plausible grounds of contest to be able to seek and obtain leave to defend the suit. Absence of filing the requisite Statements of Account along with the plaint, will essentially amount to absence of providing adequate, proper and reasonable opportunity of defence to the defending customer. Being thus unable to file a proper leave petition within thirty days under section 10(2) of the Ordinance of 2001 or within twenty one days under section 10(12) ibid, such a customer may or may not later be able to amend his leave petition. His defence shall, thus be rendered illusory, hence denied. Upon the compliance a Banking Company with the provisions of section 9(2) of the Ordinance of 2001, depends the right of defence of a defendant in the summary suits as visualized under the Ordinance, wherefore, the filing of duly certified Statements of Account by a Banking company along with its plaint, cannot be taken to be a mere formality or a technicality. This provision can only be held to be mandatory.
Without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit under this law. "
10. There is no cavil with the proposition that unless full particulars supported by documents are disclosed in a plaint the defendant would not be able to rebut the same properly. Therefore, section 9(2) of the Ordinance, 2001 makes it mandatory that the plaint 'shall be supported by a statement of account. This aspect of the case was dealt with by the learned single Judge in the impugned Order as under:-- "28. The other argument of learned counsel for the defendants that statement of account is not certified under the Bankers' Book Evidence Act or it does not contain the "debit" and "credit" entries and does not show numerous amounts paid by defendant No,1 towards repayment of its facilities, a bare perusal of the statement of account which appears at page 113 of the record clearly shows that all details regarding "withdrawal and "deposits" are appearing therein. No doubt, the words "debit" or "credit" have not been used but instead of "debit" or "credit" words "withdrawal" and "deposit" have been used. Mere non-using the words debit and credit will not make the statement of account invalid. The statement of account filed by the bank is duly certified under Bankers' Book Evidence Act and has been signed by two authorized persons. It clearly reflects all the amount withdrawn by the defendants as also the entries of payments made by the defendants to the plaintiff".
11. The respondent/plaintiff bank duly complied with section 9(2) of the Ordinance, 2001 by filing the statement of account duly certified under Bankers' Book Evidence Act and any additional documents filed with the replication application would not render the plaint to be defective.
12. There is no doubt that the appellant No, 1 obtained finance facilities from the respondent-bank and availed the same. For obtaining such finance facility the appellant No,1 executed various documents and appellants Nos. 2-4, being Directors of appellant No,1, executed necessary guarantees. When the appellants defaulted in their repayment obligations, the respondent bank, after issuing legal notices, recalling the finance facility and calling upon the appellants to settle their accounts with the prescribed time, filed the suit for recovery of their outstanding dues. The appellants filed leave to defend which the learned Single Judge, dismissed by observing as under:- - "32. An examination of the leave to defend application filed by the defendants clearly demonstrate that provisions of subsection (4) have not been complied with. The defendants have filed Annexure "D" to the leave to defend application wherein availment of running finance, term finance No,1 and term finance No,2 have admitted.
' The defendants have shown payment from 2-7-2005 to 30,9-2009 but no payment appears to have been made by the defendants after 30-9-2009. No other document which in the opinion of defendants raises the substantial question of law or facts has been annexed with the leave to defend application. In this way the provisions of subsection (5) of section 10 of the Ordinance 2001 have also not been complied with.
' In view of the above and in view of judgments quoted hereinabove the present application filed by the defendants does not fulfill the requirement of section 10 of the Ordinance 2001 hence liable to be dismissed."
13. On merits, the learned Single Judge, after elaborately discussing the matter, held as under:- "A perusal of letter dated 5-12-2009 would show that the defendants did not pay the installments of term finance No,1 from May, 2009 to November, 2009 and they also failed to pay installments in relation to term finance No,2 from August 2009 to November 2009 despite repeated demands their finance facility was recalled through above letter. In this view of the matter on merits as well defendants have no case whatsoever for which any evidence is to be recorded. Even otherwise no substantial question of law or fact has been raised by the defendants in their leave to defend application."
14. In the case reported as National Bank of Pakistan v. Al-Asif Sugar Mills Limited, etc (2001 MLd 1317) it was held that a bank cannot recall demand finance unless there was default in deposit of installments agreed between the parties. It was further held that proceedings under Banking Laws can be maintained for recovery of amount as is already due and the factum of its becoming due pendent lite is immaterial. In this case it is an admitted position that there was default on the part of the appellants and the amount sought to be recovered was. Already due and payable, which enabled the respondent-bank to recall the finance facility and institute a suit for recovery of the due amount.
15. In the case of Soneri Bank Limited v. Compass Trading Corporation (Pvt.) Limited and others (2012 CLD 1302), it was held as under:-- "5. I have heard learned counsel as above, and examined the record with their assistance and considered the case-law referred to. I have recently had occasion to consider in some detail the provisions of the 2001 Ordinance as presently relevant in my order announced on 10-1-2012 made in Suit B-50 of 2009, titled Pakistan Kuwait Investment Co. (Pvt.) Ltd. v. Active Apparels Investment Ltd. And others ("earlier order"). I reached, among others, the following conclusions:-- "25. In my view therefore, the scheme of the 2001 Ordinance, as presently relevant, is as follows. (It may be recalled that the present context is of a suit where the financial institution is the plaintiff and the customer is the defendant.) The obligations imposed by section 9(2) make clear that while making his application for leave to defend, the defendant is to be confronted with the best possible case that the plaintiff can put forward. The foundation of such a case must be the statement of account, and section 9(2) ensures that the statement, by being certified under the 1891 Act, is placed at its highest possible footing, i,e,, is the equivalent of actually producing the original books of account. However, since the production of a certified statement of account is a necessary but not sufficient condition to charge the defendant with liability, section 9(2) further provides that the relevant documents relating 'to the grant of finance must also be produced (if only by way of copies). These documents serve to corroborate the claim made in the statement of account...."
16. In the case of Akber Soap Factory 'and another v. National Bank of Pakistan (2002 CLD 1698), a Division Bench of the Lahore High Court held as under:-- "2. We note from the PM dated 13-9-2000 submitted on behalf of the appellants/ defendants before the learned Banking Court that they had acknowledged their liability to repay the amount of finance availed by them. Before us, learned counsel for the appellants contended that mark-up had been wrongly calculated by the respondent-Bank.
3. Although we were of the opinion that in view of the' admissions contained in the PM filed by the appellants, there was no room for any-denial of liability at the appellate stage, we nevertheless adjourned the case twice to enable the appellants to approach the respondent Bank for the purpose of showing to the bank the basis for their assertion that mark-up had not been properly calculated., Learned counsel for the bank has today stated that despite the adjournments allowed to the appellants, they have not approached the Bank. No valid reason for this omission has been given by learned counsel for the appellants. From this circumstance, we can only infer that the appellants are attempting to delay decision in this appeal."
17.
17. In the present case also the appellants, vide their letter dated December 22, 2009, have admitted that they "could not make payment" of the outstanding dues of the respondent bank and then raised objections to the statement of account but on scrutiny the same were found to be superficial and having no substance. The learned counsel for the appellants has not been able to prove that any of the entries in the Statement of Account produced before the trial Court was wrong. In case there was any discrepancy in the Statement of Account, the same should have been brought to the notice of the Court to reconcile the same.
18. Thus, it would be seen that the learned single Judge dismissed the leave to defend application of the appellants on technical ground as well as on merits. Learned counsel for the appellants has not been able to show any infirmity in the impugned Order. We are in agreement with the findings arrived at by the learned Single Judge and do not find any infirmity in the impugned order calling for interference by us. We, therefore, dismissed this appeal vide our short order dated 23-1-2013.
The above are the reasons for the same.