AQEEL AHMED ABBASI, J.---Through instant petition the petitioner bank has impugned the order passed by the Banking Court-IV at Karachi in Suit No. 164/2008 whereby before passing the final judgment and decree the Banking Court has formulated the following issue:- "Whether the sale of repossessed buses so adjusted was legal and in accordance with the than prevailing value of the said buses?
2. Learned Counsel for the petitioner submits that the petitioner filed Suit for Recovery of Amount against the respondent after complying with the provisions of section 9 of the Recovery Ordinance, 2001, whereafter, the respondent filed leave to defend application which was dismissed by the Banking Court vide order dated 11.1.2010 and thereafter the matter was being fixed for announcement of judgment. However, per learned counsel, instead of passing the final judgment and decree the Banking Court has formulated the aforesaid issue which could not be done once the leave to defend application has been dismissed on merits. It is further contended by the learned Counsel that instead of framing the issue, the learned Banking Court could have passed the final judgment and decree wherein such aspect regarding valuation of the buses and adjustment of amount could be considered and decided.
3. Conversely learned Counsel for the respondent has raised an objection as to maintainability of the instant petition which according to the learned Counsel, is not maintainable as it has been filed against an interlocutory order, which does not suffer from any error or illegality. It is contended by the learned Counsel for the respondent that reference to dismissal of the leave to defend application in the instant case by learned counsel for the petitioner is misconceived as it has no bearing on the impugned order which has been passed by the Banking Court while examining the statement of accounts filed by the parties as per directions of the Court. Per learned Counsel, since there was a clear discrepancy with regard to the amount which has been shown by the respondent in the statement of accounts amounting to Rs. 1,90,00,000/- being the forced value of the buses, which were repossessed by the Bank illegally before filing the suit, and the amount as shown by the petitioner bank i.e. Rs. 1,01,00,000 the amount adjusted towards outstanding liability, instead of Rs. 1,90,00,000/- which was duly assessed and shown as forced value by the bank itself.
Per learned Counsel it is the duty of the Banking Court that before passing the final judgment and decree, to examine and determine all such disputes, including the reconciliation of the statement of accounts filed by the parties, whereas, in case of any discrepancy or dispute between the parties they are to be confronted before passing the final judgment and decree in this regard.
Learned Counsel further submits that the Banking Court has acted strictly in accordance with law and has provided an opportunity to the petitioner to explain such position to avoid any further litigation in this regard whereas, the petitioner is at liberty to explain their position in respect of the discrepancy and the issue which has been raised by the Banking Court vide impugned order.
Learned Counsel further argued that without prejudice to hereinabove, the petitioners are not authorized in law and fact to impugn the order passed by the Banking Court in the instant matter as it is in the nature of an interlocutory order whereby, an opportunity has been provided to both the parties to explain their position with regard to discrepancy in the statement of accounts submitted by them. In support of his contentions learned Counsel for the respondent has placed reliance in the following case law:-- 1) C.M. Textile Mills (Pvt.) Limited v. Investment Corporation of Pakistan (2004 CLD 587)
2) Bank of Punjab v. Messrs AMZ Ventures Ltd. (2013 CLD 2033)
3) Sajid Borther v. Manager ABL (2012 CLD 1858)
4) Ms. Afshan Ahmed v. HBL (2002 CLC 137)
5) Bashir Sheikh v. State (2007 CLD 1365)
6) Muhammad Farooq Ahmed v. HBL (2004 CLD 07)
4. While confronted with the above factual and legal position, learned Counsel for the petitioner could not satisfactorily controvert the submission of the learned counsel for the respondent, however, submits that such aspect of the matter could have been taken cognizance by the learned Banking Court while passing the order on leave to defend application.
5. We have heard learned Counsel for the parties, perused the record. From perusal of the record and the order passed by the learned Banking Court while dismissing the leave to defend application it appears that at the time of filing such application the respondent had shown an amount of Rs. 1,90,00,000/- being the value of the buses which were repossessed by the Bank prior to filing the instant suit for the recovery of remaining amount. However, no such dispute was agitated by either party with regard to discrepancy in the statement of accounts filed by the parties. We may observe that the parameters to decide the leave to defend application are well established, whereas, it is the duty of the respondent to raise all such factual and legal objections against the claim of the plaintiff which are to be taken into consideration and to be decided by the, Banking Court while passing the order on such leave to defend application. However, the dispute relating to any discrepancy in the statement of accounts or adjustment of accounts paid or recovered, can be examined and decided after rejection or acceptance of leave to defend application however, before announcement of final judgment and decree. Since, in the instant matter, the final judgment and decree has not been passed so far, whereas, and before passing such judgment and decree the Banking Court has taken cognizance of the discrepancy in the statement of accounts filed by the petitioner and the respondent therefore, we are of the opinion that the Banking Court has committed no illegality or error while confronting the parties with such discrepancy and dispute with regard to adjustment of the amount by the petitioner in respect of sale of repossessed buses even before filing the suit.
6. In view of herein above, we do not find any error in the impugned order passed by the Banking Court, whereas, petition filed against an interlocutory order is otherwise misconceived in law and facts, which is accordingly dismissed. However, parties may raise all such objections before the Banking Court and may explain their position on issue as framed by Banking Court through impugned order, whereafter, the learned Banking court may pass well reasoned judgment and decree in accordance with law within a reasonable period of time.
' Petition stands dismissed along with listed application in the above terms.