' MAHMOOD AHMAD BHATTI, J.---This appeal has been preferred under section 22 of the Financial institutions (Recovery of Finances), 2001 against the judgment and decree dated 08.12.2009 passed by the learned. Judge Banking Court No,1, Multan, whereby suit of Habib Bank Limited for the recovery of Rs,34,38,352.08 with costs and costs of funds from the date of default i.e, 30.08.2001 until the realization of the entire decretal amount was decreed, whereas the suit of the appellants for the recovery and adjustment through rendition of accounts was dismissed.
2. The facts stated by the parties in the two suits instituted by them have been encapsulated by the learned Judge Banking 'Court No,1, Multan in the following words:- ' 'Habib Bank Limited, a Banking Company, herein after called the plaintiff through manager of its Old Tehsil Road, Burewala, District Vehari has filed this suit for recovery of Rs,34,38,352.08 inclusive of Rs,5,73,058.67 as liquidated damages by alleging that on the request of the defendant No,1 firm, the plaintiff bank issued following three Bank Guarantees for Rs,1.000 Million each for payment of Rs,3.000 Millions on behalf of the defendants in favour and in consideration of M/s. Ciba Giegy Limited having agreed to supply pesticides to the defendants.
L/G No,Dt of IssueDt of ExpiryAmountCreditor 04 30.8.199428.02.1995Rs, 1.000 (M)Ciba Giegy 04/A 04.09.199403.03.1995Rs, 1.000(M)-do- 04/B 04.09.1,994030.03.1995Rs, 1.000(M)-do- ' It has been alleged that the plaintiff agreed respective amounts of these guarantees if the claim for guaranteed amounts was preferred by the said creditor/beneficiary before the respective expiry dates wherein the defendants provided the following securities to the plaintiff.
1. Cash margin of 25%.
2. Equitable and registered mortgage of property bearing Khasra No,18/12 13, 14, 7 MIN, 8, Khatooni No,838 MIN, Khewat No,240/241, admeasuring about 32-Kanal.
' It has been further stated that on the issuance of the said three bank guarantees, the defendants executed two counter guarantees to keep the plaintiff indemnified from all claims paid on the basis of the said bank guarantees and the defendants also undertook that any such payment by the plaintiff and debits in the accounts of the defendants, would be conclusive proof of their liability. It has been alleged that the defendants failed to make payment of the said guaranteed amount to the said creditor/beneficiaries on the agreed dates, therefore, the claim was lodged under the said three bank guarantees which is detailed below:- L/G. No, Dt of ClaimBeneficiary Amount Paid 04 27.03.1995Ciba Giegy Rs,999,738.18 04/A 27.03.1995-do- Rs,999,986.12 04/B 27.03.1995-do- Rs,999,938.10 ' It has been stated that all the above said payments were made through demand draft No,0476636/0786/04 dated 16.04.1995 amounting to Rs,29,99,662.40. Out of the said amount, Rs 7,50,000/- represented as cash margin held by the plaintiff and after deduction of this margin, the plaintiff was compelled to make payment of Rs,22,49,662.40 on behalf of the defendants, wherein, due to the default committed by the defendants in the payment of the guaranteed amount, the beneficiary M/s. Ciba Gaiegy Pakistan Limited claimed penalty of Rs,95,989/- for delay as per contract. Whereas the defendants agreed through their counter guarantees and letter dated 04.09.1994 that the amount of the said penalty might be debited to this finance account and that they would be bound to pay the same to the plaintiff. It has been alleged that the Plaintiff intimated to the defendants for the payment by the plaintiff to the claimants and demand reimbursement of the said amount but the defendants expressed their inability to do so and asked the plaintiff that the said amount be treated as to be a finance advanced to the defendants and the defendants Nos.2 to 5 executed demand promissory note on 16.04.1995 for Rs,28,68,290/- inclusive of the said penalty and markup for agreed period and cushion period of 210 days. It is stated that the defendants also executed markup agreement IB-26. The plaintiff alleged that as a result of default committed by the defendants, the plaintiff is being kept deprived of the said huge amount continuously and also deprived from the right to invest the said amount, therefore, the plaintiff is entitled to recover Rs,5,73,058.68 as 20% liquidated damages agreed and actually accrued in addition to the said outstanding finance amount of Rs,28,65,293.40 and, thus, the total recoverable by the plaintiff from the defendants comes to Rs,34,41,948 and claimed the said amount by stating the particulars of the mortgaged property.
' The defendants/appellants also brought a suit for recovery and adjustment through rendition of account by admitting that they obtained loan from the plaintiff for industrial concern which was insured by the plaintiff bank but due to heavy rains, the oil cake badly damaged and the defendants suffered loss about 15 to 20 lacs. Therefore, the defendants contacted the plaintiff bank and requested to make arrangement for raising the demand and to get the compensation from the insurance company in order to meet the damages and wrote a letter to plaintiff on 30.05.1993 vide endorsement No,386/93 and also issued a reminder. It has been alleged on 06.07.1993, another letter was written through JSP but no reply was received. On 27.7.1993, loans were arranged for Rs,3,50,000/- through Habib Bank Limited Daudabad Branch, Burewala and on 28.07.1993, an agricultural loan amounting to Rs,2,50,000/- was sanctioned through Habib Bank Limited, Mana Morr Branch and Rs,6,00,000/- were adjusted in the CF. Limit. It has been alleged that the pesticides guarantee was Rs,40,00,000/- but only Rs,30,00,000/- were given. It has been further alleged that on 16.09.093, C.F. Limit of M/s. Sarwar Brothers Cotton Ginning Factory was sent to the plaintiff bank but the same was not reviewed on the ground that M/s. Hussain Oil Mills, the sister concern of the defendants was defaulter and partners of both the industries are one and the same. On 28.12.1993, the defendants met the Zonal Chief and Circle Chief of the plaintiff bank who assured them for immediate redressal, whereupon, the plaintiff bank asked the defendants to make demand of Rs .2,78,000/- and the defendants were advanced running finance facility of Rs,5,00,000/- by assuring that the limit would be the same as previously and the defendants paid Rs,2,78,000/- and the limit was adjusted. However, the limits were not reviewed/renewed, therefore, the defendants suffered loss of Rs,6,00,000/- and on the repeated requests of the defendants, bank guarantee was sanctioned for Rs,40,00,000/- on 04.09,1994 whereas the defendants utilized Rs,30,00,000/- and remaining amount of the guarantee was not allowed to be utilized on the ground of being defaulter in the agricultural loan issued by the Habib Bank Limited, Daudabad Branch, Burewala and the defendants were forced to make payment of Rs,40,00,000/- in spite of the fact that the defendants have to pay the same by 31.12.1994. It has been further alleged that the defendants issued a cheque for Rs,3,50,000/- of Daudabad Branch and cheque worth Rs,2,50,000/- of Mana Morr Branch but despite the said fact, the defendants were not issued remaining guaranteed amount of Rs,10,00,000/-. It has been stated that the plaintiff bank deliberately reduced the limit of the defendants from Rs,80,00,000/- to Rs,50,00,000/- with ulterior motive. Therefore, the defendants suffered loss due to the behavior of the plaintiff bank and, hence, they prayed for a decree of rendition of accounts be passed in favour of the defendants.
3. The defendants/appellants sought leave to defend the suit, which was granted. It is pertinent to mention that the application for granting leave to defend the suit was treated as a written statement. As a result, that following issues were framed:- ISSUES:-
1. Whether the suit is not maintainable in view of the preliminary objections Nos.1 and 2 of the written statement? OPD.
2. Whether the suit is not in proper form? OPD
3. Whether the claim is time barred? OPD
4. Whether there is no agreement between the parties regarding markup? OPD
5. Whether the defendants have not executed promissory note? OPD
6. If the above said issues are not proved, whether the plaintiff is entitled to recover amount of Rs,34,38,352.08? OPP
7. Relief.
4. As it is, Habib Bank Limited was also granted leave to defend the suit instituted by the appellant herein. In that suit, the following issues were framed.
ISSUES:-
1. Whether the suit is bad in the present form? OPD
2. Whether the improper parties have been arrayed by the plaintiff? OPD
3. Whether the plaintiff is entitled to demand accounts of transaction of payments and repayments and insurance claim for composition as damages? OPD
4. Relief.
5. On 21.10.2003, both the suits were consolidated. However, consolidated issues were not framed. At the same time, it was held that the proceedings shall be carried out in the suit titled 'Habib Bank Limited v. M/s. `Sarwar Brothers Cotton Ginning and Pressing Factory'.
6. Both the parties lead pro and contra evidence in support of their respective pleas. Be that as it may, the suit of Habib Bank Limited was decreed in the terms set out in paragraph No,1 of this judgment, whereas the suit filed by 'M/s. Sarwar Brothers Cotton Ginning and Pressing Factory' was dismissed. Feeling aggrieved, the latter filed the instant appeal.
7. In support of the appeal, learned counsel for the appellants has submitted that the impugned judgment passed by the learned Judge Banking Court No,1, Multan is contrary to the facts and law; that it proceeded on conjectures, surmises, suppositions and presumptions; that the learned Court below did not apply its judicial mind to the facts and circumstances of the case, resulting in gross miscarriage of justice; that the issues framed in the suit instituted by the appellants were not dealt with, and no finding was recorded in respect of them. It is urged by him that the impugned judgment and decree being violative of the provisions of Order XX, Rule 5, C.P.C. Is liable to be set aside, requiring he matter to be remitted to the learned trial Court for decision afresh. It has also been pointed out that the application moved by the appellants seeking to compare their disputed signatures on the promissory notes with their admitted signatures by a handwriting expert remained unattended and was not decided prior to the passing of the impugned judgment in flagrant disregard of the law laid down in the judgments reported as `Hafiz Muhammad Hussain and another v. Abbas Khan and another' (1981 SCMR 1233), 'Ch. Noor Ahmad through Legal Heirs v.
Abdul Majid through Legal Representatives (2005 MLD 620), 'Messrs M. A. Chaudhry and 3 others v.
National Bank of Pakistan, Faisalabad through General Attorney; (2005 CLD 875), 'Malik Sher Muhammad through Legal Heirs v. Karachi Development Authority and another' (2006 YLR 2889), 'Gul Muhammad through Legal Heirs v. Karachi Development Authority and another' (1998 MLD 150), 'Pak Carpet Industries Limited v. Government of Sindh and 2 others' (1993 CLC 334), 'Muhammad Yaqoob v. Baqir and 2 others' (1993 CLC 1319) and Khair Deen v. Rehm Deen and 4 others' (1996 CLC 1731).
8. On the other hand, Mr. Muhammad Waseem Shahab Advocate, learned counsel for the decree- holders, Habib Bank Limited has argued that the impugned judgment is well-considered; that the learned Court below dealt with all the material issues in a comprehensive manner, therefore, if it did not give issue wise findings or omitted, to give findings on the issues arising from the suit instituted by the appellants, it would not adversely affect the outcome of the real controversy between the parties to the appeal. In this respect, he made reference to the provisions of section 99 of Civil Procedure Code, 1908, besides placing reliance upon the judgments reported as Vadir Bakhsh (deceased) through L.Rs v. Allah Dewaya and another' (2011 SCMR 1162), Muhammad Amir through L.Rs v. Muhammad Sher and others' (2006 SCMR 185), Mst. Husna Bano alias Mst. Bibi Hussain Bano and others v. Faiz Muhammad through Legal Heirs and others' (2002 SCMR 667), Raja Ali Shan v. Messrs Essem Hotel Limited and others' (2007 SCMR 741). It is further argued by him that the suit of the appellants was not maintainable; rather the plaint was liable to be rejected. To fortify his submissions in this regard, he has placed reliance on the judgments reported as 'Muhammad Azam Khan v. Askari Leasing Limited through Branch Manager' (2014 CLD 462), 'Gulistan Textile Mills Ltd. v. Askari Bank Ltd. And others' (PLD 2013 Lahore 716), 'Muhammad Shafi and 5 others v. Amanat Ali and 5 others' (2005 MLD 559) and 'Riasat Ali v. Muhammad Yaseen through Legal Heirs and another' (2006 CLC 1390).
9. We have heard the learned counsel for the parties and perused the record with their assistance.
10. From a perusal of the impugned judgment, it is crystal clear that the learned Judge Banking Court No,1, Multan did not give any finding under the issues framed in the suit instituted by the appellants. With utmost respect to the learned counsel for the decree-holder Bank, the learned Judge Banking Court was under an obligation to record issue wise findings. Order XX, Rule 5, C.P.C.
That lays down the parameters of a judgment has repeatedly come up for consideration before the Superior Courts. In the case of 'Ali Muhammad v. Muhammad Hayat and others' (1982 SCMR 816), the provisions of Order XX, Rule 5, C.P.C. Were held to be mandatory. The recording of issue wise findings was also highlighted in the cases reported as Rehmatullah Khan and another v.
Ghulam Farid and others' (2009 SCMR 371), 'Syed Iftikhar-ud-Din Haider Gardezi and 9 others v.
Central Bank of India Ltd., Lahore and 2 others' (1996 SCMR 669), 'Mohammad Mustafa v. Sri Abu Bakar and others' (AIR 1971 SC 361), 'Abdul Sattar v. Bashir Ahmed and others' (2004 CLC 370), 'Mst.
Feroza v. Anjuman-e-Ittehad-e-Baluchan and others' (2004 YLR 1535), `Darayus Crus Minwala v.
National Accountability Bureau through Its Chairman and 2 others' (2010 MLD 1931), 'Farid Ullah Khan Kundi v. Rustam Khan' (PLD 2012 Peshawar 121), 'Haft Abdul Jalil v. Anjuman Jame Masjid Haquani' (1996 MLD 818), `Sakhi Muhammad v. Mst. Taj Begum and 4 others' (1985 CLC 734), 'Abdul Karim v. Hoshiar Khan and 2 others' (1983 CLC 1450), Wahomed Sulaiman v. Kumar Birendra Chandra Singh' (AIR 1922 PC 405), 'Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengiyil Valia Madhavi Amma and others (AIR (37) 1950 FC 140), `Nasir Abbas V. Manzoor Haider Shah' (PLD 1989 SC 568), 'Shoukat Ali v. Mst. Razia Bibi and others' (1999 CLC 62)', 'Abdul Qayyum v. The State' (1999 MLD 2026), `Nadar Ali v. Mst. Hussain Bibi and 5 others' (1998 MLD 250), 'Muhammad Tufail v. Mst.
Sardar Bibi and 2 others' (1998 CLC 1969), 'Asadullah Khan v. Abdul Karim' (1997 CLC 1334), `Alaf Din v. Mst. Soni Bibi' (1999 CLC 1808), 'Mst. Husna Bano v. Faiz Muhammad Magsi and another' (2000 CLC 709), 'Syed Khurshid Ahmed alias Wahid Hussain through General Attorney v. Rao Muhammad Akram Khan' (2000 CLC 825), `Kistan Tobacco Company Ltd. v. Pakistan Chest Foundation' (PLD 1998 Lahore 100(106), `Mst. Fatima Bibi v. Mst. Raheem Bibi' (1999 MLD 1026), `Suleman and others V.
Dadoo and others' (2001 YLR 764), `Syed Rehmat AU through Legal heirs and 2 others v. Syed Sadique Ali through Legal Heirs' (1999 YLR 1656) and 'Muhammad Nawaz Shah v. Imam Bakhsh and 4 others' (2000 YLR 1456).
11. As to the judgments relied upon by the learned counsel for the respondents, they proceed on their own facts, Moreover, they are based upon the interpretation of Order XLI, Rule 31, C.P.C. It needs to be underscored that while the trial Court is duty bound to give issue wise findings, an appellate Court is not required to do so. And this is exactly what was held by the Hon'ble Supreme Court of Pakistan in the cases of 'Muhammad Amir' (2006 SCMR 185) and 'Umer Din' (1991 SCMR 1816) relied upon by the learned counsel for the respondents.
12. As to the other set of the authorities relied upon by the learned counsel for the respondents that deal with the rejection of a plaint and non-maintainability of suit, we would refrain from discussing them for a simple treason that they bear relation to the issues which were not decided by the learned Court below. Any observation made by us would pre-Judge those issues.
13. The unsound and flawed approach of the learned Court below has necessitated the remanding of the case to the learned Judge Banking Court No,1, Multan. We cannot but resist the temptation to dilate upon the merits of the case lest it should prejudice the case of either of the parties.
14. The upshot of the above discussion is that this appeal is allowed and the impugned judgment and decree dated 08.12.2009 passed by the learned Judge Banking Court No, 1, Multan is hereby set aside, remitting the matter to it for decision afresh in accordance with law, after affording an opportunity of 'hearing to all the parties. If any application filed by the appellants is pending decision, it shall be decided either way before passing the final judgment and decree.