' MUHAMMAD SAJID MEHMOOD SETHI, J.---Through instant Regular First Appeal (RFA), filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance ("FIO"), 2001, judgment and decree dated 28.01.2013, passed by learned Judge Banking Court, Bahawalpur, has been assailed, whereby application for grant of leave to defend the suit, filed by appellants was dismissed and consequently suit filed by respondent-bank was decreed.
2. Brief facts of the case giving rise to instant appeal are that respondent-bank filed a suit for recovery of Rs,19,699,934.92 along with mark-up and cost of funds, under section 9 of the F.I.O., 2001, against appellants, which was contested by them by filing application for leave to defend. Learned Judge Banking Court, after hearing the arguments of learned counsel for the parties, proceeded to dismiss the leave application and decreed the suit in the sum of Rs,13,922,002.92 along with cost of funds, vide judgment and decree dated 28.01.2013. Appellants have impugned said judgment through instant appeal.
3. Learned counsel for appellants submits that the appellants had specifically denied ailment of any loan facility, as claimed in the suit and also objected genuineness of the supporting documents annexed with the plaint. He further submits that they raised substantial questions of law and facts in their leave application, which could not have been decided summarily without recording evidence. He further submits that even the plaint did not fulfill the requirements of section 9(3) of the F.I.O., 2001. He adds that statements of account were not certified in accordance with the mandatory provisions of the Bankers' Books Evidence Act, 1891 ("the .Act of 1891"), thus the impugned judgment and decree is not sustainable in the eye of law. In support of his contentions, he has placed reliance upon Messrs Asia Motor Company through Proprietor and another v.
Messrs NIB Bank Limited (2016 CLE! 609) and Sheikh Murshid Ali and others v. United Bank Limited (2016 CLD 1471).
4. On the other hand, learned counsel for respondent-bank defends the impugned judgment and decree and submits that appellants have failed to point out any illegality or legal infirmity in the impugned judgment, thus, the same is liable to be upheld under the law. He contends that defence of the appellants was not bona fide as they had denied to have availed the facility, while documents are available on record, which suggest availing of the facility by appellants. He adds that defence being not bona fide is not tenable in the eye of law, thus, the learned Judge Banking Court has rightly rejected the leave application. In support of his contentions, he has placed reliance upon Ghulam Rasool through L.Rs, and others v. Muhammad Hussain and others (PLD 2011 Supreme Court 119), Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. (2012 CLD 337), Allied Bank of Pakistan Limited 1.1. Chundrigar Road Karachi v. Messrs Kohinoor Cotton Mills Limited, Lahore and 3 others (PLD 1985 Lah, 89), Muhammad Akmal and 9 others v. Messrs Grindlays Bank Ltd. and another (1987 CLC 2353), Khursheeda and 3 others v. Haji Qudrutullah and another (1988 CLC 1062), National Bank of Pakistan v. Punjab Buildings Products Ltd. (PLD 1998 Karachi 302), Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others (2003 CLD 931), Messrs International Traders through Proprietorship and 3 others v. Union Bank Limited (2003 CLD 1464), Ghulam Abbas v. Manzoor Ahmed and another (PLD 2004 Lahore 125), Habib Bank Limited v. Service Fabrics Ltd and others (2004 CLD 1117), National Bank of Pakistan through Zonal Chief and others v. Messrs Power Textile Industries Ltd. through Chief Executive and others (2004 CLD 1239), Bank of Punjab through EVP/General Manager v. Genertech Pakistan Ltd. through Chief Executive and 2 others (2008 CLD 765), Askari Commercial Bank Ltd. v. Hilal Corporation (Pvt.) Ltd. and 6 others (2009 CLD 588), International Finance Corporation v. Sarah Textiles Ltd. and 3 others (2009 CLD 761), Habib Bank Ltd. v. Messrs Doaba Corporation through Proprietor and another (2009 CLD 845), Faysal Bank Limited v. Genertech Pakistan Ltd. and 6 others (2009 CLD 856), Habib Bank Ltd. v. Paragon Industries (Pvt.) Ltd. through Chief Executive and 5 others (2009 CLD 1346), Messrs Speedway Fondmetall, Pakistan Ltd. v. NIB Bank Ltd. (Formerly PICIC) (2010 CLD 896), Messrs Berry Food Industries and others v. Muslim Commercial Bank Ltd.
(2011 CLD 75), Allied Bank Limited v. Muslim Cotton Mills Private Limited and 3 others (2011 CLD 393), Apollo Textile Mills Ltd. through Chief Executive and Director and 3 others v. Soneri Bank Limited through Manager/Principal Officer (2011 CLD 1655), Habib Metropolitan Bank Ltd. v. Mian Abdul Jabbar Gihllin and another (2013 CLD 88), Elite Publishers Limited and 3 others v. Soneri Bank Limited (2013 CLD 1995), NIB Bank Ltd. v. Highnoon Textile Ltd and 3 others (2014 CLD 763), Messrs Habib Bank Limited through Senior Manager v. Messrs R.G. Match Industries (Pvt.) Ltd. through Chief Executive and 3 others (2014 CLD 1015), The Bank of Punjab through Branch/Chief Manager v.
Messrs Khan Unique Developers Pvt. Ltd. through Chief Executive Officer and 9 others (2016 CLD 29), Messrs First Dawood Investment Bank Limited through Authorized Officers/Attorneys v. Mrs. Anjum Saleem and 3 others (2016 CLD 920) and Saudi Pak Industrial and Agricultural Investment Company Limited v. B. A. Rajpoot Steel and Re-Rolling Mills (Pvt.) Limited and others (2016 CLD 465).
5. Arguments heard. Record perused.
6. Perusal of record shows that appellants availed the fund based/non-fund based facilities from respondent-bank since 2003 to 2008 and get the same renewed/enhanced from time to time.
Lastly, the appellants requested the respondent-bank on 22.02.2008 for the renewal of the said facilities i,e, RF/BG Facilities to meet the needs of fertilizer and pesticides business, which was accordingly approved by the respondent-bank on 23.06.2008 on mark-up with floor of 14% on quarterly basis and appellants availed/utilized the said facilities by executing the liability creating documents detailed in para 5 of the plaint. The facilities were not only jointly guaranteed but Memorandum of Title Deed was also executed in favour of respondent-bank by the appellants. The said facilities were further secured by appellants by mortgaging their certain properties (detailed in para 6 of the plaint), by way of registered Mortgage Deeds in favour of respondent-bank.
7. The documents, available on record, contained all necessary details of the amounts disbursed, amounts repaid and the balance amount recoverable from appellants. Appellants continued to operate their accounts and utilized the facilities during the period 2003 to 2008, but they had neither challenged any of the documents nor approached any Court of law with the allegation that they had not signed liability creating documents in favour of respondent-bank. Appellants had mortgaged their properties not only by way of deposit of original title documents of the properties but also by executing registered Mortgage Deeds in favour of respondent-bank, but they had not agitated the matter before any Court on the plea that these documents had been obtained by fraud. Statements of account contained date wise debit and credit entries, made in the ordinary course of business.
8. Under sections 2(e) and 3 of the FIO, 2001, a customer is duty bound to fulfill his obligations to the financial institution, which not only include repayment of a finance or performance of an undertaking or fulfillment of a promise but also in respect of all other amounts relating to mark-up charges/cost of funds etc. The running finance in question was also accompanied by promissory note. Under section 118 of the Negotiable Instruments Act, 1881, presumption of truth was attached to the promissory note. Presumption attached to it was not only statutory but also mandatory in nature, which cannot be displaced in absence of any solid proof.
9. First argument of learned counsel for appellants is that plaint of the suit filed by respondent- bank is defective, as mandatory requirements contained in section 9(3) of the F.I.O., 2001, have not been complied with. Examination of plaint, available on record, makes us clear that respondent- bank/plaintiff clearly mentioned the amount of finance availed by appellants/defendants.
Necessary documents, showing amounts paid and payable finance to the financial institution, were appended with the plaint. Thus, in our opinion, this argument carries no force and same is repelled.
10. To evaluate the attitude of appellants towards compliance with mandatory provisions of the F.I.O., 2001, we have also gone through the contents of their leave application. It is worth to mention here that section 10 of the F.I.O., 2001 deals with procedure and requirements to tile application for leave to defend the suit. Appellants, in terms of section 10(4) of the Ordinance ibid, were required to disclose in their application/PLA, the amount of finance availed, repaid to the respondent-bank along with dates of payments, other amounts payable to the financial institution upto the date of institution of the suit and the amount if any disputed by them as payable to the financial institution and facts in support thereof, instead of evasively denying the availment of facility without any solid basis and proof. As per section 10(5) of the F.I.O., 2001, appellants were required to file all such documents along with their PLA, which, in their opinion, supported purported questions of law or facts. Apparently, appellants have failed to comply with the provisions of section 10(3), (4) and (5) of the F.I.O., 2001, so, it can safely be concluded that they approached the Court with unclean hands and their defence is not bona fide. In this view of the matter, appellants are not entitled to leave to defend and their application was rightly rejected by learned Judge Banking Court. Under subsection (6) of section 10 of the F.I.O., 2001, leave application, which does not comply with above requirements, is liable to rejection, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement. But appellants did not bother to bring on record any evidence which created hindrance in their way to comply with said requirements of law. It is well settled that grant of leave to defend the suit cannot be considered as a matter of routine or right unless the suit involved substantial questions of law and facts. Reference, in this regard, is made to Habib Metropolitan Bank Ltd. v. Mian Abdul Jabbar Gihllin and another (2013 CLD 88).
11. Second argument of learned counsel for appellants is that the statements of accounts, presented with the plaint, are not in conformity with the provisions of the Act of 1891 and even the statements of accounts for the period of 2003-04 had not been produced. Suffice it to say that no such plea was taken in the leave application. The stance which was not taken in the leave application cannot be allowed to be raised at the appellate stage. Reliance, in this regard, is placed upon Dr. Faiz Rasool and others v. The Askari Bank Limited through Branch Manager/Authorized Attorney (2015 CLD 1710) and Imam Din v. Bank of Khyber, D.I. Khan through Manager (2012 CLD 447). Even otherwise, the statements of accounts, available on record, reflect all entries of debits, credits and balance for the period in question. Certificate of correctness qua said statements of accounts is also available on record, which is sufficient for the purpose of filing a suit and in this way, respondent-bank has complied with provisions of the Act of 1891. The certification through a responsible officer means the bank owns the statements of accounts and certifies that the same represent the true and correct statement, as maintained in its books of accounts. Such certification enables the Court to consider the copies of the statements of account as admissible evidence in the suit. Where the accounts are duly signed by the manager of the bank, it implies that it is a true copy maintained by the bank in its ordinary course of business and that such book was in the custody of the bank. Guidance can be taken from the cases NIB Bank Ltd. v. Highnoon Textile Ltd. and 3 others (2014 CLD 763) and Messrs First Dawood Investment Bank Limited through Authorized Officers/Attorneys v. Mrs. Anjum Saleem and 3 others (2016 CLD 920).
12.It would be advantageous to mention here that respondent-bank appended certain electronically generated statements of account with the plaint and by virtue of Electronic Transaction Ordinance, 2002, documents in electronic form do not require attestation. The said Ordinance was promulgated with a view to provide recognition and facilitation of documents, records, information, communications and transactions in electronic form etc. Thus, the argument of learned counsel for appellants, on this score also, is not sustainable. Steering thoughts can be gathered from the case of Mian Abdul Jabbar Gihllin supra.
' The argument of learned counsel for appellants that the documents attached with the plaint are forged and fictitious, is not substantiated because appellants did not append with their leave application any documentary proof which casted doubt on the genuineness of said documents.
They have failed to show that any entry in the statements of accounts was wrong or fabricated.
The conduct of the appellants itself shows that their defence in their leave application was not serious and bona fide. No rebuttal or even denial regarding correctness of such entries was specifically made by the appellants. Therefore, amounts determined by Banking Court as payable by the appellants, stood established in circumstances. Reliance, in this regard, is placed upon Allied Bank of Pakistan Limited, I.I. Chundrigar Road, Karachi v. Messrs Kohinoor Cotton Mills Limited Lahore and 3 others (PLD 1985 Lah. 89).
' A learned Single Bench of this Court in Saudi Pak Industrial and Agricultural Investment Company Limited v. B.A. Rajpoot Steel and Re-Rolling Mills (Pvt.) Limited and others (2016 CLD 465), has held that under the law, every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in pleadings of the appellants/defendants, shall be taken to be admitted against them. Since no specific challenge was made by appellants to the amounts payable under the finance facilities, which was pleaded in the plaint, the objection regarding form of statements of accounts will not constitute a substantial question of fact warranting an inquiry by this Court. Learned counsel for appellants was specifically asked whether appellants had availed finance facilities from respondent-bank or whether any amount was disbursed to them, he could not give any satisfactory reply.
15. The plaint discloses detail of the amounts of finance facility availed, paid and payable by the appellants. The findings rendered by learned Judge Banking Court are also unexceptionable and based on correct appreciation of available evidence/record and application of relevant law. The judgments, relied upon by learned counsel for appellants, are on distinguishable facts and circumstances, therefore, the same do not apply to the proposition in hand.
16.In view of the above discussion, instant appeal is hereby dismissed with no order as to costs.