' MAMOON RASHID SHEIKH, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is directed against the judgment and decree dated 4-4-2007 passed by the learned Judge Banking Court-III, Lahore, whereby the suit of the respondent for the recovery of Rs,4,449,575 was decreed against the appellant with costs and cost of funds minus the principal sum already deposited by the appellant.
2. The brief facts necessary for the purposes of deciding the appeal are to the effect that the appellant is a customer of the respondent and on 12-7-2002 the appellant filed a suit, against the respondent for the recovery of Rs,5,762,225 on the premise that the appellant availed of finance facility from the respondent against his U.S.$ deposits with the respondent and the respondent issued NDRP Certificates valuing US $ 370,000 which were under lien of the respondent. After the incident of destruction of the World Trade Centre in the USA on 11-9-2001 the value of the US $ started declining. The appellant, therefore, requested the respondent to encash his US $ and to liquidate the appellant's liability. The respondent, however, delayed the matter and by the time the respondent encashed the US $ the rate of the US $ vis-a-vis. Pak Rupee had further declined resulting in loss to the appellant. Had the respondent encashed the US $ in time a surplus of Rs,424,938 would have remained to the credit of the appellant. The suit was therefore filed to recover the alleged monetary loss suffered by the appellant. The respondent filed its PLA and whilst the same was pending the respondent on 2-6-2003 filed a suit for recovery of Rs,4.440 million against the appellant. On 14-7-2003 the appellant filed his PLA in the respondent's suit. The learned trial Court heard arguments on the PLAs in both suits on the same day and through a consolidated order/judgment dated 4-4-2007 whilst granting leave to defend to the respondent in the appellant's suit dismissed the appellant's PLA and decreed the respondent's suit against the appellant.
3. The learned counsel for the appellant submits that the basic question which the learned trial Court identified for determination in both suits was that there existed a variance between the parties on the question of delay and encashment of US $ and the difference in the rate of US $ prevailing on the date of request and the date of encashment. The learned trial Court whilst identifying this triable issue proceeded to decree the suit of the respondent against the appellant without recording any evidence and at the same time granted leave to defend to the respondent in the appellant's 'suit. In so doing the learned trial Court erred in law for if there were triable issues in one suit then the same held true in the other suit. The leave to defend, therefore, should also have been granted to the appellant.
4. The learned counsel has also raised questions regarding the competence of the attorney of the respondent in instituting and filing the suit against the appellant. Contends that according to the copy of the power of attorney executed by the respondent in favour of its attorney who filed the suit the attorney could only act jointly with another attorney of the respondent. The respondent's suit was, however, filed by the said attorney singularly. The question of the competence of the attorney to file the suit could, therefore, not have been determined without recordal of evidence. He has further called into question the, statement of accounts appended to the plaint and has also raised questions regarding the repetitive "transfer entries" therein. Contends that these entries are not substantiated and are in fact entries in respect of markup which have been disguised as "transfer entries". Relies on the judgments reported as Messrs Ali Match Industries Ltd and 3 others v.
Industrial Development Bank of Pakistan (1997 SCMR 943), Faisal Bank Limited v. Badin Board Mills and 6 others (2010 CLD 442), United Bank Limited v. Messrs Ilyas Enterprises through Proprietor Mr. Ruas Malik and 2 others (2004 CLD 1338) and Messrs Ittefaq Industries (Regd.) through Managing Partner and 2 others v. Bank of Punjab through Dulu constituted Attorneu (2004 CLD 1356).
5. Further contends that had the respondent acted on time and encashed the US $ the appellant's liability would have been discharged and his account would have been in credit to the tune of Rs,424,938. These aspects were ignored by the learned trial Court whilst decreeing the suit against the appellant. Further contends that the impugned judgment is not based on any reasoning. Even otherwise, if the PLA of the respondent was to be rejected then the suit of the respondent could not have been decreed straight away without requiring the respondent to prove its case. Further submits that in the PLA the appellant had mentioned that it had written a letter dated 17-9-2001 to the respondent for encashment of US $, this letter was duly received by the respondent on 22-9- 2001. The respondent denies having received this letter. As the very question of timely encashment of US $ was the crux of both suits the learned trial Court erred in not granting leave to defend to the appellant as this question required determination by way of framing of issues and recordal of evidence.
6. The learned counsel for the respondent controverts the stance of the learned counsel for the appellant. At the outset they submit that the suit filed by the appellant for the recovery of Rs,5,762,225 has since been dismissed as the appellant failed to produce his evidence. This goes to show the falsity of the appellant's suit/claim.
7. On merits contend that the impugned judgment and decree was passed by considering the facts and circumstances obtaining in both suits. The appellant had failed to set up a triable case in its PLA, therefore, he was rightly denied leave to defend by the learned trial Court. The appellant failed to comply with the provisions of section 10 of the Ordinance, ibid, inasmuch as he did not set out the required details therein. His PLA was, therefore, liable to be summarily rejected. Further submit that the provisions of section 9(1) of the Ordinance, ibid, envisage that a suit can be filed by the Branch Manager of the Bank. The suit was filed by the attorney of the Bank who happened to be its Branch Manager, therefore, the requirements of section 9(1), ibid, were fulfilled. On the question of statement of accounts submit that each and every entry in the statement of accounts was fully substantiated and explained. Further contend that the basic foundation of the appellant's case that he suffered financial loss by the delayed encashment of US $ by the respondent vanished with the dismissal of his suit. The instant appeal, therefore, merits dismissal. Rely on United Bank Limited v. Tanvir Khalid (2003 CLD 291), Muhammad Ramzan and 4 others v. Agricultural Development Bank of Pakistan through Manager (2004 CLD 1376) and Messrs Al-Kashmir Traders and 6 others v.
United Bank Limited through Muhammad Jarar (2005 CLD 1116).
8. Arguments heard. Record perused.
9. We find that through the impugned judgment the learned trial Court has narrowed down the controversy between- the parties to the question of the alleged delay having been committed by the respondent in encashment of US $ and the consequential alleged monetary loss suffered by the appellant due to the difference in the conversion rate of the US $ on the relevant dates. Having once done so the learned trial Court on the one hand proceeded to dismiss the appellant's PLA and decreed the respondent's suit and on the other hand by stating that the respondent has raised substantial questions of law and facts which required determination by recordal of evidence proceeded to accept the respondent's PLA. We find that the learned trial Court erred in law in having done so for the reason that if on the same basic premise there were triable issues in one suit then the same holds true for the other suit. We further find that the observation of the learned trial Court that the appellant was unable to substantiate his objections regarding the statement of accounts and the competence of the Bank's attorney to institute/file the suit are also based on an erroneous view of the law. Reliance in this regard is placed on the judgments reported as Appollo Textile Mills Ltd and others v. Soneri Bank Ltd. (PLD 2012 SC 268) and Habib Bank Ltd. (Foreign Exchange Branch) v. Dost Muhammad Cotton Mills Ltd. And others (PLD 1997 Karachi 331).
10. Under the circumstances the appeal is accepted and the impugned judgment and decree dated 4-4-2007 is set aside. The matter is remanded to the learned trial Court for decision afresh, in accordance with the law, on the appellant's PLA which shall be deemed to be pending.
11. The learned trial Court is further directed to proceed in the matter expeditiously and decide the case strictly on its merits without being influenced by any observation having B been made in this order.
12. The record of the case be remitted forthwith.
13. There is no order as to costs.