' SYED IFTIKHAR HUSSAIN SHAH, J.---Through this appeal the appellant has assailed the legality of judgment and decree dated 20-8-2009 passed by the learned Judge Banking Court-I, Multan whereby suit instituted by the respondent for the recovery of Rs,20,96,127.67 was decreed.
2. Succinctly, the facts of the case are that Muhammad Rafique appellant No,1 being sole proprietor of M/s. Muhammad Shafique and Brothers 63-B, Grain Market, Khanewal applied for finance facility to the United Bank Ltd. Vide application dated 25-5-2004, which was sanctioned/ approved vide Sanction Letter/CA No,2929/WD/04 dated 26-5-2004. Appellant No,1 utilized the limit after completion of all necessary legal docum6ntations on 16-6-2004 including registration of mortgage on 14-6-2004 in favour of the Bank from 25-6-2004 as and when required. On the request of appellant No,1, the respondent Bank renewed cash finance facility to the tune of Rs,2,400,000 on 28- 8-2005 on the security of hypothecation of stocks of Seed, Fertilizer and Pesticides and existing mortgaged property. The renewed cash finance facility was repayable on or before 31-5-2006 along with mark-up. Appellant No,1 availed the cash facility in aggregate of Rs,25,62,024.34 against the total repayment in aggregate of Rs,4,65,896.67 and Rs,20,96,127.67 was outstanding against the appellant, which he failed to re-pay the due amount despite the issuance of various notices.
3. The appellants/respondents made a petition for leave to defend the suit, which was declined, vide order dated 20-8-2009 and consequently the suit was decreed. Hence, the present appeal.
4. Learned counsel for the appellants has contended that no amount was disbursed to the appellant during the agreed period i,e, 1-6-2005 to 31-5-2006; that the previous outstanding amount was rescheduled just in extension in time and the amount of loan was not enhanced but even then mark-up has been charged on the rescheduled amount but the learned trial Court has not considered this aspect of the case and has refused leave to defend the suit arbitrarily and that the impugned judgment and decree is not in accordance with law, the same is liable to be set aside.
5. On the other hand, learned counsel for the respondent has contended that the appellants have admitted that they have availed the facility of loan and failed to repay the same in accordance with the terms and conditions of the loan agreement. Furthermore, the appellant had made a petition before the learned Executing Court for the recovery of decrial amount in installments which was also allowed. The appellants have admitted the validity of the decree; as such they are estopped to assail the same through this appeal.
6. We have heard the learned counsel for the parties and have also perused the record.
7. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law which regulates the relationship between Financial Institutions and the customeRs, The special law provides different obligations for the financial institutions and the customers which are to be fulfilled while instituting the plaint or applying leave to defend in the matter. The suit instituted by the respondent was supported by the statement of accounts duly certified under the Bankers' Books Evidence Act, 1891 and supported by the documents reflecting the grant of finance.
8. The leave to defend the suit was made under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, by stating that the defendant disbursed nothing during the period 1-6- 2005 to 31-5-2006. The considerable amount was deposited by them in their account and they deposited the total sum of Rs, 10,98,596.92, which was appropriated towards the alleged cash finance and the statement of account furnished by the bank is contradictory one. The learned trial Court, after hearing the parties, held that the agreement between the parties is admitted one and there is nothing substantial to prove the same through the evidence and declined the leave.
9. Defendant No,1 was allowed cash finance facility amounting to Rs, 2,400,000 vide sanction letter dated 26-5-2004 and the said finance facility was renewed on 28-8-2005. The statement of accounts submitted by the respondent bank was duly certified under the provisions of Bankers'
Books Evidence Act, 1891 and the amount of Rs,16,73,553.83 was due against appellant No,1, which was treated as outstanding balance against him instead of Rs,20,96,127.67 as claimed by the respondent bank and the suit was decreed.
10. After the decree of suit, the appellants admittedly made an application in the execution petition, requesting for the recovery of decrial amount in installments. The learned Executing Court, after getting reply of the decree holder, accepted the application for making payment of decrial amount in installments and vide order dated 27-10-2010, following installments were made:- "1st installment shall be paid on or before 15-12-2010.
2nd installment shall be paid on or before 15-3-2011.
3rd installment shall be paid on or before 15-6-2011".
It was further decided that in case the judgment debtor fails to pay the decrial amount according to the scheduled installments, the decree holder bank shall be at liberty to seek the recovery of the remaining entire outstanding decrial amount in lump sum through execution proceedings. The appellant has voluntarily accepted the validity of the impugned judgment and decree by promising to pay the decrial amount in installments and the learned Executing Court has made the installments of the decrial amount according to the wishes of the appellant. Therefore, now the appellant is estopped to question the legality and validity of the impugned judgment and decree.
No illegality or irregularity has been pointed out by the learned counsel for the appellants in the impugned judgment and decree, which is in accordance with law. The appeal in hand is without any merits, the same stands dismissed.
KMZ/M-32/L .