' ABID AZIZ SHEIKH, J.---This appeal has been filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO, 2001") against the judgment and decree dated 15-7- 2008 to the extent of cost of funds allowed to the respondent bank.
2. Brief facts of this case are that the appellant filed a suit for declaration and permanent injunction against the respondent bank seeking declaration that the appellant has already discharged all the liabilities accrued under Loar case No,258865 as per terms of the agreement and the respondent/defendant bank be permanently restrained from demanding any amount on the basis of above mentioned loan.
3. The respondent/defendant bank filed petition for leave to defend which was converted into written statement. The respondent bank claimed that an amount of Rs, 1,54,764 is outstanding against the appellant and statement of account was also filed along with the petition for leave to defend.
4. The learned Banking Court after hearing the parties, vide impugned judgment and decree dated 15-7-2008 while determining the outstanding liability of the appellant, reduced the claim of respondent bank for excess markup charged after the expiry date of facility, however, the respondent bank was allowed costs of fund from the date of default till 11-1-2008.
5. Learned counsel for the appellant argued that the learned Banking Court had no jurisdiction to grant cost of funds to the respondent bank in the suit filed by the appellant and if at all any determination was to be done it could only be done in the suit filed by the respondent bank.
Reliance is placed on Habib Bank AG Zurich through Manager v. Mustafa Shams-ud-Din Ghatilla and 2 others (2003 CLD 658).
6. Conversely, the learned counsel for the respondent bank argued that the appellant himself approached the learned Banking Court for determination of his claim, where the learned Court reduced the claim of the respondent bank for excess mark up charged after the expiry period, however, in terms of section 3 of F.I.O., 2001 the cost of funds was lawfully allowed to the respondent bank from the date of default till the recovery of total outstanding amount.
7. We have given our anxious consideration to the contentions of learned counsel for the parties and also perused the record.
8. It is admitted position that the appellant himself filed a suit for declaration and permanent injunction and submitted to the jurisdiction of the learned Banking Court for the determination of the outstanding liability of appellant towards the respondent bank. The suit was contested by the respondent bank wherein it was claimed that the outstanding amount against appellant was Rs,154,764. The learned Banking Court after going through statement of account, rejected the claim of respondent bank to the extent of mark up charged after the expiry date of finance, however, allowed the respondent bank to charge cost of funds from the date of default till 11-1-2008 at the rate specified by the State Bank of Pakistan.
9. It is also admitted position between the parties that the expiry date of finance facility was 7-1- 1999 whereas the outstanding finance liability was finally paid in Court on 11-1-2008. In our view, the learned Banking Court has rightly rejected the claim of the respondent bank regarding the excess markup charged after the expiry date of the finance as held in Hali Fazal Elahi and Sons through_ Muhammad Tariq v. Bank of Punjab and another (2004 CLD 162) and allowed cost of funds for said period in terms of section 3 of the F.I.O., 2001 from the date of default till 11-1-2008 as per the rate specified by the State Bank of Pakistan. The aforesaid finding of the learned Banking Court is also in consonance with the provisions of section 3 of the F.I.O., 2001 and the law laid down by this Court in Habib Bank Ltd. v. Karachi Pipe Mills Ltd. (2006 CLD 842), Prime Commercial Bank Limited v.
A_gricide (Private) Limited and others (2006 CLD 940) and Trycot Sunthetic Fibre Company through Proprietor and another v. Habib Bank Limited (2012 CLD 1670).
10. The appellant is not in a position to challenge the jurisdiction of the learned Banking Court as he himself approached the Court for determination of his liability, where the excess markup was reduced in favour of appellant, however, cost of funds allowed as per section 3 of the F.I.O., 2001.
The appellant cannot approbate and reprobate, to argue that Banking Court had jurisdiction to reduce excess markup but had no jurisdiction to declare that cost of funds be charged instead of, excess markup as per proviso of section 3 of F.1.0., 2001.
11. In view of above discussion, we find no illegality in the impugned judgment and decree passed by the learned Judge Banking Court. Therefore, the instant appeal has no merits and the same is hereby dismissed with no order as to costs.