' SHAMS MEHMOOD MIRZA, J. --- This is a suit filed under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) seeking recovery of Rs, 54,962,711/- from the defendants on account of a sale & lease back facility granted to defendant No, 1 and default by it of its payment obligations.
2. Brief facts of the case are that defendants approached the plaintiff through resolution and request letter both dated 05.03.2008 for the grant of a sale & lease back facility amounting to Rs, 89,000,000/-. The said request was accorded approval by the plaintiff through its offer letter dated 12.06.2008, which contained the detailed terms and conditions of the facility. The parties accordingly entered into lease agreement dated 12.06.2008 and the defendants also executed a sale invoice dated 12.06.2008 in favor of the plaintiff. In addition to the above, the defendants also executed demand promissory notes dated 20.06.2008, undertakings, trust receipt, personal guarantees in favor of the plaintiff as mentioned in paragraph No, 6 of the plaint. In terms of the afore-mentioned agreements, defendant No, 1 sold its assets mentioned in the sale invoice to the plaintiff and simultaneously took them on lease. The sale & lease back facility was for a period of four years with six months grace period. After making some payments of the lease rentals, the defendants committed default of their payment obligations which resulted into filing of the present suit.
3. In pursuance of the summons issued by this Court, defendants entered appearance by filing a joint application for leave to defend bearing PLA No, 32-B of 2010 (the PLA).
4. In support of the grounds urged in the PLA, the learned counsel submitted that the suit was filed by an unauthorized person and that there was no valid statement of account appended with the plaint. In order to expand on his submissions, paragraph No, 2 of the plaint was referred wherein Ch. Muhammad Asghar, Legal Head of the plaintiff, was stated to be the duly authorized attorney of the plaintiff for the purpose of filing the present suit. Learned counsel then referred to the power-of- attorney appended with the plaint which was in the name of one Muhammad Salman. It, was, therefore, contended that the assertions made in 'paragraph No 2 of the plaint are not backed up by any document on the record and that in view of the absence of the power-of-attorney of Ch. Muhammad Asghar from the record, the present suit cannot be said to have been filed by an authorized person. It was further submitted that the statement of account appended with, the plaint does not "now any disbursement of amounts under the lease and sale back facility and that the amounts deposited-by defendants are also not reflected therein. Objection with regard to the certification at the foot of the statement of account was also vehemently urged by the learned counsel and it was stated that said certificate does not qualify to be in accordance with Section 2(8) of the Banker's Books Evidence Act, 1891.
5. Learned counsel for the plaintiff has referred to C.M. No, 12-B of 2010 which was filed by the plaintiff on 11.01.2010 for placing on record the power-of-attorney of Ch. Muhammad Asghar as also to order dated 12.01.2010 passed on the afore-mentioned application to contend that the power- of-attorney of the afore-mentioned official was validly brought on the record. The said order reads as under:--- ' Through the instant C.M., the applicant/plaintiff wants to file Power-of-Attorney with the assertion that due to some inadvertent mistake the same could not be annexed with the plaint. The suit- is at preliminary stage, hence, the prayer sought for is allowed subject to all just and legal exceptions and without prejudice to the rights of other party. C.M. Stands disposed.
' It is apparent from the record that the power-of-attorney of Ch. Muhammad Asghar was brought on record before the summons could be issued to the defendants. The defendants were, therefore, not caught by surprise and no prejudice was caused to them as at the time of filing of the PLA they will be taken to be aware of the fact that power-of-attorney of Ch. Muhammad Asghar has been brought on the record. In this regard reference may be made to judgments reported as Tahir Anees v. Messrs Citi Bank N.A. 2011 CLD 1062 and Habib Bank Limited v. Messrs Ess Emm Ess Corporation Pakistan Limited and 5 others 2005 CLD 854. According the said judgments, non-fling of power-of-attorney is a mere irregularity and that such a defect can be cured at any stage of the proceedings.
6. The objection with regard to the statement of account also does not hold much substance. The transaction which is the subject-matter of the suit is that of a sale & lease back of the assets under which the plaintiff made the payment of Rs, 50,865,000/- to the defendants through cheque dated 30.06.2008, which is appended with the plaint, for the sale of the assets. In terms of lease agreement dated 12.06.2008, lease rentals were required to be paid in 44 monthly installments. The question of disbursing the amount to the defendants thus did not arise in view of the nature of the transaction in question. The statement of account AR ended with the-plaint rightly showed only the lease rental payable as also the lease rental paid by the defendants.
7. The defendants have not denied the execution of the documents but have simply denied availing of the facility. In view of the incontrovertible evidence on the record regarding payment of amount of the assets through cheque, the learned counsel was time and again asked to explain his stance regarding non-availing of facility to which he simply replied by stating that the statement of account relied upon by the plaintiff is not valid in law. The stance taken by the defendants is not tenable as the statement of account conforms to the requirements of law. The defendants have taken up the plea that the amounts paid by them are not reflected in the statement of account. This plea is also not borne out of the record as the statement of account clearly reflects the payments made by the defendants. The plaintiff has also appended its statement of account being maintained with Bank Al-Falah Limited from where the amount of Rs, 50,865,000/- was transferred to the defendants, which again substantiates the payment made through the cheque as also the transaction contemplated by lease agreement and sale invoice dated 12.06.2008. That the transaction of sale and lease back was duly entered into by the parties is further corroborated by the mortgage of the defendant's properties with the plaintiff, which fact has also not been denied by the defendants in their PLA.
8. It is clear that the plaintiff has validly instituted the present suit through Ch. Muhammad Asghar and that the defendants duly availed the finance facility which is the subject-matter of the present suit. It is further clear that the defendants have been unable to raise any dispute on facts warranting recording of evidence for its resolution. In the circumstances, the PLA filed by the defendants is hereby dismissed. The suit filed by the plaintiff is accordingly decreed in his favor and against the defendants jointly and severely, in the sum of Rs, 54,962,711/- together with costs of fund as contemplated by Section 3 of the Ordinance. Costs of the suit are also granted.