' SHAMS MEHMOOD MIRZA, J.---This is a suit filed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) seeking recovery of Rs,376,675,799.37 from the defendants on account of various finance facilities granted to defendant No,1 and default by it of its payment obligations.
2. The suit claim arises out of Cash Finance (pledge) facility, Cash Finance (hypothecation) facility, finance against imported merchandize facility and two letters of credit facilities, the details of the outstanding amounts whereof are given in paragraph 20 of the plaint.
' The above mentioned finance facilities were availed through the plaintiff bank's offer letter dated 08.09.2007 in pursuance whereof the defendants executed the necessary finance documents. On account of defaults committed by the defendants in their repayment obligations, the plaintiff bank was constrained to file the present suit. The defendants contested the suit by filing their joint application for leave to defend bearing P.L.A. No,67 of 2008. This Court on 03.02.2014 granted unconditional leave to defend to the defendants, where after the following issues were framed on 26.05.2014:
1. Whether the titled suit is maintainable under the provision of Financial Institutions (Recovery of Finances) Ordinance, 2001? OPD
2. Whether the claim of the plaintiff bank is supported by true and correct statement of account?
OPP
3. Whether the claim of bank to the extent of charging and adjustment of mark up is legal and justified? OPP
4. Whether the bank is entitled to the amount claimed? OPP
5. Relief.
3. The plaintiff produced four witnesses who tendered in evidence Exh.PW-1/1 to Exh.PW-1/60, Exh.P- 2/3 to Exh.P-2/75 and Exh.PW-3/2 to Exh.PW-3/5. Defendants only examined D W-1.
4. The issue wise findings are as under: ISSUE No,1
5. This is the legal issue, the onus whereof was on the defendants. However, the learned counsel for the defendants did not address any argument on this issue which is accordingly decided against the defendants.
' ISSUES Nos.2 to 4
6. All these issues are interconnected and are, therefore, being decided together. In order to prove these issues, the plaintiff bank produced Muhammad Tahir, officer, CAD 'Head Office as PW-1 who tendered in evidence Exh.PW-1/2 to Exh.P-1/60 which included the entire finance documents pertaining to the cash finance (pledge) and (hypothecation) facilities. The said documents were exhibited subject to objection of the defendants that PW-1 was neither the author nor the witness of the same, which fact was admitted by him during his cross-examination.
7. Syed Khurrarn Shehzad Shah Bukhuri, AVP-I, Import Department appeared as PW-2 and tendered in evidence documents marked as Ex.PW-2/2 to Exh.PW-2/75 and Mark-A to Mark-G which included the documents pertaining to the letter of credit facilities and their statements of accounts. Similarly Muhammad Sher Zaman Khan, Relationship Manager SMAD, produced the statements of the accounts of Cash Finance facilities as Exh.PW-3/2 to Exh.PW-3/5.
8. Learned counsel for the plaintiff submitted that the documents relating to the finance facilities were brought on record without any objection from the defendant's counsel and that not a single question was put to the plaintiff's witnesses regarding any entry in the statements of accounts. He further submitted that the evidence led by the defendants was irrelevant and that DW-1's testimony travelled beyond the scope of pleadings. He accordingly contended that the plaintiff was able to prove the issues by producing un-rebutted evidence.
9. Learned counsel for the defendants took up the plea that PW-1 was merely a record keeper who has neither the executant nor the witness of the documents Exh,PW-1/3 to Exh.PW-1/60 and as such no reliance can be placed on the documents produced by him. He further submitted that the plaintiff bank had tendered in evidence the last offer letter dated 08.09.2007 (Exh.PW-1/15) which offer letter did not include the Cash Finance (hypothecation) facility. He also drew the attention of this Court to the statements of the account of Cash Finance (hypothecation) facility (Exh.PW-3/2) which showed 'Nil' balance on 15.06.2007. He stated that there was no finance agreement on the file pertaining to the period after 15.06.2007 and as such the plaintiff bank was not entitled to claim the amount of the CF (Hypothecation) facility.
10. There is no dispute between the parties on the execution of the finance documents as a result whereof no issue was framed with regard thereto. The objection by the learned counsel for the defendants with regard to the documents Exh.PW-1/3 to Exh.PW-1/60, therefore, has no force.
11. It is clear from offer letter dated 13.07.2006 (Exh.PW-1/12) and offer letter dated 20.04.2007 (Exh.PW-1/14) that defendant No,1 was availing Cash Finance (hypothecation) facility for Rs,10 Million which was interchangeable with Trust Receipt (TR) facility which was a sub-limit of the Cash Finance (pledge) facility for Rs,170 Million. Vide offer letter dated 08.09.2007 (Exh.PW-1/15), the amount of Cash Finance (pledge) facility was enhanced from Rs,170 ,Million to Rs,200 Million with a sub-limit, inter alia, of TR facility of Rs,10 Million. The last finance agreement in respect of the finance facility was executed on 01.07.2007. The statement of account of Cash Finance (hypothecation) facility (Exh.PW-3/2), shows continuous ailment of amounts since March 2005 up to 16.03.2008. On 16.06.2007, the amount became 'Nil' after payment of Rs,9,605,340/-. Thereafter, defendant No,1 was disbursed various amounts up, to 07.12.2007 and an amount of Rs,4,596,405/- was also repaid on 07.12.2007. It is, therefore, clear that defendant No,1 availed the Cash Finance (hypothecation) facility even after 16.06.2007. It may be pointed out that PW-3 who tendered the statement of the account (Exh.PW-3/2) was not asked a single question regarding any entry contained therein. The plaintiff bank, therefore, rightly asserted its claim under Cash Finance (hypothecation) facility in the suit.
12. Learned counsel for the defendants while making reference to offer letter dated 08.09.2007 (Exh.P-1/15) submitted that cash finance (Pledge) facility for Rs,200 Million had sub-limits of FIM and Cash Finance (hypothecation) facilities but the plaintiff bank had claimed an amount of Rs,264 Million as principal under the said facility. This submission-has no merit in it. The plaintiff bank had relied upon finance agreement dated 01.07.2007 (Exh.PW-1/45) which contained the sale price of Rs,275 Million and purchase price of Rs,334.60 Million which adequately covers the amount under the Cash Finance (pledge), Cash Finance (hypothecation) and FIM facilities. In any event, no question was put to the witnesses of the plaintiff in this regard during the cross-examination.
During the pendency of the suit, an amount of Rs,140 Million was realized through sale of the pledged stock which was adjusted towards CF (pledge) and FIM facilities. The plaintiff bank under the orders of this Court placed on record the amended statement of accounts of FIM and Cash Finance (pledge) facilities on 12.04.2016. Needless to point out that the witnesses of the plaintiff were not cross-examined on the statements of the account produced by them. The aforementioned facts clearly show that defendant No,1 availed the finance facilities and also executed finance agreement dated 01.07.2007 (Exh. PW-1 /45) .
13. The learned counsel for the defendants submitted that the plaintiff bank had mentioned LC No,223/06 in paragraph No,16 of the plaint whereas the same letter of credit was referred as LC No,323 of 2006 in paragraph No,17 of the plaint. It appears that LC No,323 of 2006 was wrongly mentioned in paragraph No,17 of the plaint as both PW-2 and PW-3 in their affidavits mentioned LC No,223 of 2006, which along with its trade documents were also produced in evidence. Similarly, the learned counsel for the defendants submitted that the plaintiff bank had mentioned .LC No,342 of 2008 in paragraph No,15 of the plaint but tendered in evidence LC No,342 of 2007. This error also appears to be a typographical mistake in the plaint as both PW-2 and PW-4 in their affidavits mentioned LC No,342 of 2007.
14. After going through the evidence, it is clear that the plaintiff bank has been able to prove its case on the basis of the overwhelming documentary evidence available on the record which included the request letters and Board Resolutions of defendant No,1 clearly mentioning the finance facilities and the amounts thereof which are the subject matter of the present suit. The facility offer letters issued from time to time by the `plaintiff bank were accepted by defendant No,1 by putting its signatures thereon. The testimony of plaintiff's witnesses regarding the finance documents under the Cash Finance (pledge) facility, the letters of credit and their allied documents together with the statements of the accounts went un-rebutted as no question was put to them in cross- examination. The defendants offered no meaningful evidence rebutting the claim of the plaintiff bank. The testimony of DW-1 had no nexus with the defense taken in the written statement. He could not answer most of the questions put to him. The overall impression once gathers from his testimony is that he was a unreliable witness. Moreover, he could not produce any authorization from defendant No,1 to appear on its behalf. DW-1 produced affidavits of defendants Nos.2 and 3 but they chose not to appear in the witness box to undergo the test of cross-examination. Their affidavits, therefoie, have no value. The defendants have failed to lead any credible evidence to rebut the plaintiff's evidence. The plaintiff bank, on the other hand, has proved all these issues, which are accordingly decided in its favour.
' RELIEF
15. The suit of the plaintiff is accordingly decreed in its favour and against the defendants, jointly and severally, in the sum of Rs,228,579,336.07 together with costs of funds as contemplated by