' SHEZADA MAZHAR, J.---The plaintiff-Bank has instituted a suit for recovery of an amount of Rs,677,529,557.0 along with cost and cost of funds and for sale of hypothecated assets and mortgaged properties against the defendant under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (F.1.0., 2001). The defendant has been sued as principal debtor as well as guarantor of the finance facilities availed by him. The defendant committed default in the repayment of facilities availed therefore, the present suit has been filed by the plaintiff bank. In nutshell the plaintiff claimed that as the defendant has violated the terms of the finance agreement/repayment schedule therefore, the amount mentioned in the plaint is due against the defendant which should be recovered. Along with the suit the relevant documents particularly, the offer letter, agreement for financing, request for finance facilities by the defendant, personal guarantee, agreement for settlement dated 06.06.2009 and the statement of account has been appended.
2. The notices in terms of section 9 of the F.I.O., 2001, were issued to the defendant who filed leave application to defend the suit bearing P.L.A. # 219-B/2011 which has been replied to by the plaintiff. The mainstay of the plaintiff's case is based upon the settlement agreement dated 06.06.2009 coupled with the execution of the documents by the defendant as described in the plaint.
3. Heard.
4. The execution of documents and availing of finance facilities have not been denied by the defendant. In the application for leave to defend the suit, defendant has categorically stated as under; "5-12 Denied being incorrect. It is pertinent to mention here that the sanctioned finance facility of Rs, 460.0 M was never disbursed in toto to the applicant. Claim of plaintiff in this regard is based upon false and dishonest debit entries in lieu of which no amount was ever availed by the defendant. It is further added here that the plaintiff caused inordinate delay to complete the transaction of swapping which caused financial loss to the defendant. The so celled documents especially the finance agreement, letter of guarantee, MDTDs are not only without consideration but same have been engineered by the bank. It is further added here that the plaintiff has no right to claim suit amount from the applicant and that too on the basis of referred documents. No legal and valid mortgage over the subject matter properties is created in favour of the plaintiff thus the plaintiff has no right to claim itself mortgagee in respect of the subject matter properties. In reply to these paras the contents of grounds "R to W" are also reiterated".
5. The objection is only to the extent that amount mentioned in the finance facility of Rs,460.0 Million was never disbursed in toto. What amount was disbursed is not mentioned. Even while mentioning the requirement of section 10(4) of the F.I.O., 2001 the defendant has mentioned only the total debit transactions on the basis of statement of account attached with the plaint, whereas under the law i.e, F.I.O., 2001, defendant was required to give specific reply to the claim of plaintiff bank along with supporting accounts. If such reply is not mentioned in the application for leave to defend the suit, the same is liable to be dismissed. In this regard reference is made to the law laid down by the Hon'ble Supreme Court in Apollo Textile Mills Ltd. And others v. Soneri Bank Ltd. (2012 CLD 337) wherein it is mentioned as under; "The plaintiff institution and the defending 'customer' have identical statutory responsibility respectively under sections 9(3) and 10(4) to plead and state clearly and particularly the finances availed by a defendant, repayments made by him, the dates thereof and the amounts of finance repayable by such defendant who has also been saddled with the additional responsibility to also specify the amounts disputed by him.
' A defending customer is thus obliged to put in a definite response to the banks' accounting and has under section 10(3) and (4) to compulsorily plead in answer in the leave petition his accounts as well as the facts and amounts disputed by him as repayable to the plainttff.
' The rationale of schematic discipline of Ordinance of 2001 is evident. A banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsorily in the books of Accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices. As such instead of leaving it to the option of the parties to make general assertions on Accounts, the Ordinance binds both the sides to be absolutely specific on accounts. The parties to suit have been obligated equally to definitively plead and to specifically state their respective accounts".
6. Perusal of application for leave to defend the suit filed by the defendant reveals that neither, any accounts are attached with the application nor any other document which supports the claim of the defendant as set-up in the leave application. The only letter dated 20.03.2010 attached with the application in fact supports the claim of the plaintiff bank wherein it is specifically mentioned by the defendant that "We have been paying all our Markups on the very due date and there is no delay on the payments of Markup. " This clearly shows that finance facilities were availed by the defendant from the plaintiff bank which were outstanding as on the date of the letter. Defendant has nowhere mentioned that the finance facilities availed has already been re-paid.
7. The other objection of the defendant is with regard to the earlier suit filed by the plaintiff-Bank which was withdrawn without permission to file fresh suit. Plaintiff-Bank has mentioned the filing of earlier suit as well as its withdrawal in the plaint, however, the order of withdrawal of suit is not attached. Learned counsel for plaintiff-Bank claimed that the fresh suit is based on the settlement agreement dated 06.06.2009 which has not been denied specifically by the defendant in application for leave to defend.
8. On the said settlement agreement the objection is with regard to non-disbursement of finance facility under the said agreement and that the date of purchase of stamp paper is 11.09.2009 whereas, the agreement was allegedly executed on 06.06.2009. Bare reading of settlement agreement reveals that the same is a rescheduling agreement which is allowed under the law and the plaintiff bank is not required to show any fresh disbursement of finance under the re-scheduled agreement. In this regard reference is made to Habib Bank Ltd. v. Taj Textile Mills Ltd. Through Chief Executive and 5 others (2009 CLD 1143) and NIB bank Ltd. v. Devan Textile Mills Ltd. (2012 CLD 141).
Further the date of purchase of stamp paper will have no effect when the defendant admits its execution by saying that no amount under said agreement was disbursed.
9. The amount re-scheduled and mentioned in settlement agreement as Rs,530,436,832/-. This was the total outstanding liability including mark-up of the defendant. No bifurcation of principal and mark-up is mentioned in settlement agreement, therefore, the plaintiff-bank cannot claim mark-up over the said total amount until and unless it shows not only the principal amount outstanding as well as the agreement which authorized the plaintiff bank to charge mark-up over the outstanding principal amount.
10. The two agreements executed along with settlement agreement on 06.06.2009 with regard to the two finance facilities outstanding as on the date of settlement agreement, as well as rescheduling offer letter shows principal amount of Rs,460,039,000/- on account of DFI and Rs,70,398,000/- on account of DFII. The offer letter also shows the mark-up to be charged on the said facilities. However, both the facilities the charging of mark-up was after the grace period. The recovery suit was filed on defendant's failure to abide by settlement agreement terms on the expiry if grace period. Therefore, plaintiff-Bank cannot claim mark-up over the outstanding amounts.
11. So far as the objection that suit has not been filed by duly authorized persons is concerned, from the record it is clear that the present suit has been filed by duly authorized officers of the plaintiff bank. The plaintiff bank has attached the registered power of attorney of the authorized officer which fulfills the requirement of section 9(1) of the F.1.0., 2001. Further a customer who has admittedly availed the finances, facility cannot raise objection on the power of attorney of officer only to avoid/delay the re-payment of the finance facilities. Further in view of the law laid down in KASB Bank Limited v. Mirza Ghulam Mujtaba and 2 others (2011 CLD 461) wherein it is held that as the plaintiff bank had brought on record valid power of attorneys and the same fulfilled the requirement of section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, the suit is validly filed.
12. Statement of account is also duly verified in accordance with Bankers Books Evidence Act, 1891. Further, defendant has failed to point out any entry in the statement of account which is against the documents or entered illegally by plaintiff bank. The statement of account is neither contrary to the facts nor contains ambiguous entries. In this view of the matter the objection as to the statement of account is also turned down.
13. Perusal of plaint shows that requirements of section 9(3) of the F.I.O., 2001 are duly complied with when plaint is read in conjunction with admission of defendant regarding availing of earlier finance facility as well as execution of re-scheduling agreement. Further the amount disbursed to defendant along with date of disbursement and the amount payable by defendant is mentioned in the plaint along with supporting documents.
14. The upshot of above discussion is that .no bona fide dispute whatsoever has been set up with respect to amount claimed by the plaintiff bank. Consequently, the PLA filed by the defendant stands dismissed.
15. The plaintiff bank has proved its claim to the extent of principal amount. There was no agreement with regard to the payment of mark-up during the first two years after rescheduling therefore, plaintiff bank cannot claim any amount of mark up from the defendant.
16. Resultantly, the suit of plaintiff bank is decreed in its favour and against the defendant for total amount of Rs.522,879,000/-. Out of this total decretal amount Rs. 455,039,000 is on account of DFI facility and Rs.67,840,000/- on account of DFII. The plaintiff bank is also entitled to the cost of suit as well as cost of funds from the date of default i.e. 01.07.2009 till the date of realization of funds as determined by the State Bank of Pakistan under section 3 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Decree sheet be prepared accordingly.