' SHAHID KARIM, J.---This is a suit for the recovery of Rs,253,931,398.50 along with liquidated damages of Rs,50,786,279.70 with costs of funds and cost of the suit.
2. The suit was filed on 24.2.2010. On 12.10.2011 a consent decree was passed in favour of the plaintiff-Bank and against the defendants jointly and severally in respect of the claim of the principal amount made in the suit i.e, Rs,167.123 million. After the passing of the consent decree what remained in the field was a claim for markup. The decree so passed stood satisfied and an application (C.M. No,64-B of 2013) was made by both the parties intimating the Court that the interim decree in the amount of Rs,167.123 million had been fully satisfied. It is pertinent to mention that vide order dated 27.9.2011 unconditional leave to defend was granted with respect to the claim of markup in the amount of Rs,85.702 million, the claim for additional charges amounting to Rs,1.1 million and liquidated damages. On 23.10.2014 the following issues were framed by this Court: Issues:
1. Whether the Defendant No,1 availed running finance facility from the Plaintiff in the amount of Rs,732.900 million? OPP
2. Whether the Plaintiff is entitled to recover outstanding markup amount Rs,85,702,508.50/-, additional charges in the amount of Rs,1,105,000/- and liquidated damages in the amount of Rs,50,786,279.70 total Rs,137,593,788.20 with cost of funds from the Defendants? OPP.
3. Relief
3. At the outset, the parties agreed that the issue No,1 has become moot and no finding is required to be returned thereon as the issue No,1 relates to the principal amount in respect of which the consent decree was passed and which stands satisfied. The primary focus of the determination is the issue No,2 with regard to the recovery of an alleged amount of markup due to the plaintiff- Bank.
5(sic.) The onus to prove the issue No,2 was on the plaintiff-Bank. Local Commission was appointed by this Court for taking down the evidence of the parties. Evidence was led by the parties pro and contra. On behalf of the plaintiff-Bank, Ehtisham ul Haq appeared as PW.1 and Tahir Nazeer as PW.2.
Documents in support of the evidence were also produced which were duly exhibited and have been brought on record. In rebuttal, Anam Khurshid appeared as DW.1. The first report of the Local Commission was submitted on 28.1.2015 and subsequently a second report after taking down the complete evidence was filed by the Local Commission on 11.3.2015.
Liquidated Damages:
6. An amount of Rs,507,862,79/- has been claimed as liquidated damages by the plaintiff-Bank.
However, no evidence has been produced in support of the said claim whereas it is trite principle that liquidated damages can only be claimed and granted when irrefutable evidence is led in support of the claim and proof is brought forth on record which would establish that the person claiming liquidated damages has, in fact, suffered those damages. Liquidated damages have to be contrasted with general damages and these are in the nature of special damages which ought to be proved in order to be brought home. The learned counsel for the plaintiff-Bank has not been able to point to any portion of the examination-in-chief or the cross-examination by which a claim for liquidated damages was asserted and oral or documentary evidence was produced in order to establish and prove the said claim. The claim for liquidated damages is therefore, not borne out from the evidence and is, therefore, rejected.
Markup:
7. A cumulative markup of Rs,85,702,508.5 has been claimed by the plaintiff-Bank as outstanding against the defendants. The bifurcation of the markup is that an amount of Rs,65.245,462.54 has been claimed in respect of FAPC-I Facility and the statement of account has been exhibited as Ex.E.I/36 at pages 665 to 671. It is pertinent to mention that the statement spanned a period commencing from 1.7.2006 to 31.1.2010. The next amount of markup is Rs,204,57,045/- which has been claimed in respect of FAPC-I Facility and the statement of account is exhibited as Ex.P.I/36 and is found at pages 676 to 682 of the plaint. The said statement is for the period commencing from 1.7.2006 to 31.1.2010.
8. The learned counsel for the defendants; Mr. Shazib Masud, Advocate has drawn the attention of this Court to the cross-examination of PW 1. The following portions of the cross-examination have been referred to in this regard:- "...No documents have been exhibited in the evidence prior 2006."
"...There is a difference between the format of an FAPC and impact LD. Both are different in that one relates to import and other relates to export and they have also different terms and conditions. It is correct that the document attached at page 50 of plaint which is agreement for financing on mark-up basis dated 01.02.2008 is a copy of bank document. The witness is confronted with Exh-P1/15 (in original) and asked whether it is the same document as at page 50 ibid. Witness confirms that it is the same document. E.Th-P1/15 is original of document at page 50.
In Exh-P1/15 there is a stamp showing the names of witnesses whereas at page 52 of plaint the names of witnesses are hand written. The two documents are different to the extent of the rames of the witnesses."
9. The portions of the statement reproduced above have been referred to particularly with regard to the agreement dated 0L02.2008 between the plaintiff-Bank and the defendant-Company. The learned counsel for the defendants submits that this agreement has been specifically denied and, therefore, it was an obligation cast upon the plaintiff-Bank to prove this agreement. Precisely, the learned counsel submits that a copy of the agreement was annexed at page 50 with the plaint and which is purported to be the same document which has been exhibited by PW.1 as PW.1/15. There is a clear interpolation with regard to this agreement and an allegation of forgery to have been committed in the execution of this agreement as the defendants have clearly taken the stance that the agreement was filled in at a later time and was not in fact executed by the defendants.
PW.1 in his cross-examination has admitted that the copy of the agreement annexed with the plaint and included in the list of documents under Order VII, Rule 14, C.P.C. Is materially different from the original copy which was exhibited as Ex.P.1/15. Upon a perusal of the two documents in juxtaposition, it is clear that the two documents do not conform in terms of the writing, font etc. And the witnesses who put their signatures as witnesses of the execution of the agreement. Since the agreement was denied, it was an obligation for this document to have been proved in accordance with law. In all documents relating to financial matters, it is the mandate of Article 17 of Qanun-e- Shahadat Order, 1984 (Order, 1984) that the document must be proved by the production of two witnesses who have signed the document in token of its execution. Article 17 of the Order, 1984 reads as under: "17 Competence and number of witnesses: (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,
(a) in matters pertaining to financial or. Future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
10. The manner of proof has been reinforced and elaborated upon in a recent judgment of the Supreme Court of Pakistan, reported as Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) where it was observed as follows: "...The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, Article 17 of the Order, 1984.
(See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."
11. The learned counsel for the plaintiff-Bank admits that only one of the witnesses to this document namely Tahir Nazir was produced as PW.2 and the other witness was not produced. The ineluctable inference is that the agreement dated 01.02.2008 was not proved in accordance with law and, therefore, has to be taken out of consideration. The execution of the agreement has not been proved and thus no liability arises in respect of the said agreement for claiming markup under it.
12. Statement of account in respect of said agreement is at page 670. Since it has been held that the agreement has to be disregarded for lack of proof, the only amount due with regard to the markup would the one under the previous agreement and which expired on 31.1.2008. According to the learned counsel for the defendants, the amount would be Rs,63,18,493.08 as reflected in the statement of account at page 668 which is the last amount of markup debited to the account of the defendant-Company. There is no doubt that if the agreement dated 01.02.2008 has not been proved in accordance with law, the only amount that can be lawfully claimed by the plaintiff-Bank is the last amount of markup under the previous agreement whose expiry was up till 31.1.2008 and that amount comes to Rs,63,18,493.08.
13. The second amount in respect of which the amount of markup ha; been claimed is of the same date of 01.02.2008 and is found at page 55 of the plaint. It has been exhibited as PW.1/18 and the expiry for the agreement is 1.1.2009. The statement of account is at page 681. The learned counsel for the defendants submits that the amount at the end of the period of the agreement that is 31.1.2009 should be taken as the amount of markup due to the plaintiff-Bank. Whereas the amount of the markup claimed is far in excess of the due mark up which can only be claimed for the end of the period of the agreement and not beyond that. In this regard, the learned counsel submits that an amount of Rs,63,63,181/- has been claimed in excess. Therefore, the markup that ought to be lawfully due is merely Rs,14,093,864.10 and the rest of the markup being beyond the period of agreement and clearly not due under the law must be disregarded.
14. The learned counsel for the plaintiff-Bank has taken this Court to the various agreements which were duly executed by the defendant-Company and which have not been denied by the defendants in their written statement. It has been admitted by the learned counsel for the plaintiff- Bank that only one witness was produced to prove the agreement dated 01.02.2008 which was in dispute and which was clearly denied by the defendants. The learned counsel submits that the statement of account has been produced and duly exhibited which should be sufficient to bring home the claim of the plaintiff-Bank. This submission of the learned counsel is clearly flawed and has no legal legs to stand upon. The statement of account is merely one of the documents in the nature of Banker's Book and is refutable upon production of cogent and reliable evidence. However, the primary document in this regard is the agreement duly executed between the parties upon which the relationship is predicated. If the agreement is not proved in accordance with law, the statement of account without more is not sufficient to bring home the claim for the recovery of an amount solely on the basis of the debit balance as shown in the statement of account. With regard to the markup beyond the period of agreement, the learned counsel submits that it is in the nature of previous markup overdue which to say the least is not admissible under the law and it requires reiteration that the law is firmly established that a financial institution is entitled to the markup for the period of the agreement and not beyond that.
15. Thus, the plaintiff-Bank is entitled . To a markup Rs,20,412,357.1.
Cost of Funds:
16. The cost of funds which are admissible to the plaintiff-Bank in terms of section 3 of the Financial institutions (Recovery of Finances) Ordinance, 2001 shall be calculated in terms of that section and as certified by the State Bank of Pakistan for which a certificate shall be produced by the plaintiff- Bank and on the amount which has been found to be due to the plaintiff-Bank in respect of the markup claimed by it.
17. In view of the above, the issue No,2 has been partly proved by the plaintiff-Bank. A decree for an amount of Rs, 20,412,357.1 is passed in favour of the plaintiff-Bank and against the defendants jointly and severally along with cost of the funds as calculated according to the observations made in this judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.