' SHEZADA MAZHAR. J.---This suit has been filed by a customer against the defendant bank under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for declaration, rendition of accounts, redemption, cancellation of documents, permanent and perpetual injunction and recovery of Rs,45,57,45,000 by way of damages.
2. The facts of the case as per contents of the plaint are that on the obsequious assurances of the defendant, the plaintiff accepted the proposals for obtaining certain finance facilities for growing business requirements. The plaintiff agreed with the proposals and at the time of availing the finance facilities countless assurance and commitments were made by the defendant regarding its efficiency and uprightness in the Banking transactions and on thorough probe, scrutiny and verification of the securities which were to be placed as collaterals for securing the interest of the defendant bank, finance facilities were sanctioned and the plaintiff signed the various sets of documents from time to time, however the signatures were obtained by the defendant bank on different finance blank documents on the pretext that the blanks would be filled up in their presence after completion of certain formalities. However, later it came in the knowledge of the plaintiff that by way of twisting actual facts and circumstances, the defendant has created certain fictitious liabilities without even disbursing any amount to the defendant company. It is further, averred in the plaint that plaintiff made substantial payments in accordance with terms and conditions of finance agreements and also paid mark-up and other charges and the plaintiff company never defaulted; that in the mid 2005, the facilities applied for by the plaintiff were not disbursed as per plaintiff's requirements and even, the facilities offered on the basis of offer letter dated 20-4-2005 were not fully disbursed as a result of which the plaintiff was unable to fulfill export orders and had to pay extra charges for exporting its goods and also to give discount to its foreign customers on account of delay. The defendant prepared a fictitious and fraudulent document and the same is termed as a statement of account, which is neither a statement of account nor can qualify to be a statement of accounts as the same is neither in compliance with the requirements of Bankers' Books Evidence Act nor the same was prepared in accordance with the usual practice. The transfer of finances, the figures and particulars required to establish a financial transaction are all missing and have deliberately been concealed by the defendant; that due to default in fulfilling obligations by the defendant, the plaintiff has suffered not only a huge financial loss but also lost reputation and good will in the local as well as international market. The defendant has indulged in infringing transgressing the rights of the plaintiff by its wrongful act and caused injury by refusing to fulfill its contractual obligations with mala fide intentions and having ill motive committed the wrongful act of default in fulfilling obligations without any just cause and excuse. The plaintiff time and again approached the defendant for resolution of the matter but of no avail, hence, this suit.
3. Summons was issued to the defendant bank, who entered appearance and filed the leave application on 5-5-2009.
4. The defendant in its application for leave to defend the suit raised number of preliminary objections relating to maintainability, jurisdiction, limitation, misjoinder and lack of cause of action and asserted that the objection that it is the plaintiff who has defaulted to repay its outstanding liability as per availed facilities sanctioned on 20-4-2005 and 7-7-2005. Consequently, the defendant filed suit i,e, (C.O.S. No,37 of 2007) for recovery of Rs,195,314,002.16 along with liquidated damages of Rs,39,062,800.43 total Rs,234,376,802.59, which has been decreed by this Court in terms of judgment dated 27-8-2014 for an amount of Rs,195 million; that the plaintiff availed the sanctioned finance facilities as per statement of accounts, which is certified as true and correct as per Banker's Books Evidence Act 1891; that the documents relating to finance facilities were duly executed in accordance with the sanctions and in order to avoid to repayment of loan, the plaintiff by leveling bald allegations has filed a forged and fictitious suit on the basis of wrong facts; that the defendant provided up to date accounts at all time and as per finance agreements, the defendant has fulfilled its contractual obligations and it is the plaintiff himself who miserably failed to comply with the requirements of the defendant contained in the respective sanction letters and other correspondence. Further stated that the plaintiff has not suffered any loss or damages as stated in the plaint, therefore, not entitled to such claims, losses or damages whether specific or general as there is absolutely no legal basis for the same.
5. The defendant bank was granted leave to defend the suit in terms of order dated 12-10-2009.
From the divergent pleadings of the parties following issues were framed by this Court on 17-11- 2009:-
(1) Whether the suit of the plaintiff is not maintainable? OPD
(2) Whether this Court has jurisdiction in the matter? OPD
(3) Whether the claim of the plaintiff is time barred? OPD
(4) Whether the suit is bad for mis-joinder of necessary parties and liable to be dismissed? OPD
(5) Whether the plaintiff has no cause of action against the defendant? OPD
(6) Whether the plaintiff is entitled to the claim of damages as specified in the plaint? OPP
(7) Whether the plaintiff is entitled to the decree as prayed for? OPP
(8) Relief.
6. In order to record the evidence of the parties, vide order dated 23-2-2010, Mr. Omar Pasha Chaudhary, Advocate was appointed as commission. During this period, the plaintiffs filed C.M.No,609-B and C.M. No, 637-B of 2010 seeking amended in paragraph No, 23 of the plaint, which were allowed vide order dated 8-10-2012 on the statement of learned counsel for the defendant.
The plaintiff while making amendment in the total claim of Rs,49,07,45,000, filed the amended plaint on 11-10-2012 claiming Rs,45,57,45,000. The learned local commission after completing evidence of the parties filed report on 23-6-2014.
7. The plaintiff himself appeared as P.W.1 and produced three other witnesses namely Muhammad Naeem Khokhar, Manager Finance and Corporate Affairs as P.W.2, Syed Asad Abbas, Manager Adnm. As P.W.3 and Syed Muhammad Raza Zaidi, Accounts as P.W.4 and also produced documentary evidence.
8. Contrary to that, Zaheer Abbas, Recovery Manager, SAM, UBL, D.W.1, Fazal Muhammad Head SAM, UBL as D.W.2, Zulqarnain Khan Ilyas, Regional Recovery Manager SAM, UBL appeared as D.W.3 entered into witness box to rebut the claim of the plaintiff besides tendering of documentary evidence.
9. I have heard the learned counsel for the parties and have gone through the record available on the file. My issue-wise findings are as under. Most crucial issues are being taken first.
ISSUES Nos. 6 and 7
10. Onus to prove these issues was on the plaintiff. In order to prove these issues. P.W.1 Awais Mazhar Hussain CEO Messrs, Angora Textile limited admitted in his cross-examination that various finance facilities were allowed by the defendant bank. He also admitted the signatures on the sanction advices, finance agreement dated 20-4-2005, promissory notes, letters of continuity dated 20-4- 2005, personal guarantees, hypothecation of machinery and equipment dated 18-4-2005 and memorandum of deposit of title deeds dated 18-4-2005. He admitted as correct that he has no copy of blank documents of agreement of finances as he alleged that when the same were executed the same were blank and later on filled in by the defendant bank. He also admitted as correct that mortgage dated 20-4-2005 of Rs,233,000,0000 by the plaintiff company in favour of the defendant was registered with the SECP under section 127 of the Companies Ordinance. He also admitted correct that whenever a bank sanctioned a facility the bank guarantee of the director is obtained. Muhammad Naeem entered appearance as P.W.2 and on a specific question that "who told you various set of documents were got signed by the defendant from the Directors of the plaintiff company which contained blanks, under influence and by use of its domineering position?" The answer is that nobody did tell him about it. He further stated that he cannot tell the figures of the amount paid by the plaintiff company to the defendant bank regarding repayment of loan and bank charges. Syed Asad Abbas P.W.3 also stated he did not know exactly whether any amount was paid by the plaintiff to the defendant in connection with payment of aforesaid finance facility. He also deposed that he can only explain the violated terms and conditions of finance agreement by the defendant and the charging of high markup rate and disbursement charged by the bank but no detail has been given.
11. The main emphasis of the plaintiff company is that the defendant bank obtained signatures of its directors on blank documents to create a fictitious and fabricated finance facilities, however during the statement of the P.Ws., it is apparent from the record that not only the plaintiff admitted the signatures but also disbursal of finance facilities. The plaintiff has not only failed to produce any copy of blank document, which were allegedly filled by the defendant bank to create liabilities but also any complaint/protest to the high ups of the defendant bank in this regard. The plaintiff has also failed to produce even a single paper protesting that it had not been disbursed finance as per earlier sanction advice dated 20-4-2005 or claiming any loss for such alleged non-disbursal in between the period 20-4-2005 up to date of filing of suit on 7-5-2008 but P.W.1 stated during cross- examination that liquidity position became very tight in the year 2007 because of exceptional deductions made by the bank in that year thus admitted in the terms that the sanctioned facilities were being availed throughout the years 2005, 2006 and 2007. The P.Ws. Have neither questioned the validity of even one entry in the certified statements of accounts exhibited as D.W.2/2 to D.W.2/8 nor even one entry of its liabilities as set out in the written statement, which gives full particulars of the amounts repaid by the plaintiff. The plaintiff admits that all the charges/documents executed on 20-4-2005 were registered with the SECP as evidenced by SECP's letter dated 20-4-2005 Exh.P.W.1/19. No detail whatsoever of the alleged loss has been given.
Though the plaintiff claims that defendant caused loss by forging the signatures of the plaintiff on various documents and caused loss by breaching contractual obligation but neither any such document has been produced nor the specification of breach of obligation has been mentioned in the affidavits of the plaintiff's witnesses or in the plaint.
12. The plaintiff has levelled bald allegations and without legal foundations, it appears to be a crude attempt on the part of the plaintiff in order to wriggle out of its contractual obligations and a desperate attempt to save himself from the financial liabilities incurred by it through the execution of the documents regarding which suit C.O.S. No,37 of 2007 was filed by the defendant-bank, which has also been decreed in terms of judgment dated 27-8-2014 for an amount of Rs,195 million. Even otherwise, if there was any default on part of the defendant bank, the plaintiff must have filed the suit prior to the suit of the defendant.
13. From the perusal of the evidence available on record, the documents exhibited by both the parties and hearing the arguments of learned counsel for the parties, it has been established that the plaintiff in order to avoid to repayment of finance facilities availed, filed the present suit as a counter blast. Admittedly, to establish the series of allegations leveled by the plaintiff regarding causing of alleged damages as agitated in the suit, absolutely and unquestionably lies on part of the plaintiff that the alleged losses and damages were caused by an act, omission or unnecessary negligence committed by the defendant or the defendant had A deliberately failed to comply with its responsibility for which the defendant was bound under the correspondence and documents duly executed between the parties but the plaintiff has failed to establish his claim of damages against the defendant through persuasive evidence supported by the relevant documents.
Therefore, it cannot be held that the defendant bank has committed any breach of contractual obligations and the plaintiff is entitled to get the damages on account of default on part of the defendant bank, these issues are hereby decided in negative.
ISSUE No,1.
14. The onus to prove this issue was on the defendant. This court has held that a statement of accounts must contained each debit and credit entry. Whereas in Messrs C.M. Textile Mills Pvt.
Limited though Chairman and 5 others v. Investment Corporation of Pakistan (2004 CLD 587) it was held that statement of account means a continue daily posted record showing in detail all debit and credit and balance as of the closing of the period, usually one month. It was also held that the details need to be given either in the body of the plaint or the same may be attached with the plaint. It is clear that in order to meet the requirement of section 9(1) of F.I.O., 2001 every plaint has to mention the facts of agreement as well as the default of obligation/agreement.
15. The other requirement as mentioned in section 9(2) of the F.I.O. Which narrates that the plaint should be supported by a statement of accounts and copies of all other relevant documents should be attached with the plaint. Section 9(2) states as under; The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers' Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.
16. Bare reading of the above clause clears that statement of accounts is a necessary document for a suit to be maintainable before the banking court, which is lacking in this suit. The plaintiff in order to establish his claim has not attached the statement of accounts. Hence, this issue is decided affirmative.
ISSUE No, 2
17. The onus to prove this issue was on the defendant. Under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 a customer can also approach banking court therefore, this court has the jurisdiction to entertain and try the present suit, therefore, this issue is decided against the defendant and in favour of the plaintiff company.
Issues Nos.3 to 5.
18. In view of my findings recorded in issues Nos.6 and 7, these issues are also decided against the plaintiff.
' Relief.
19. In view of my findings recorded in issues Nos.1, 3 to 7, the plaintiff company is not entitled for any relief and therefore, the suit of the plaintiff is hereby dismissed with no order as to costs.