' This is an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance, 2001) against the judgment and decree dated 06.03.2009 passed by the learned Single Bench of this Court exercising jurisdiction under the Ordinance, 2001.
2. The respondents Nos.2, 3 and 7 have been proceeded against ex parte vide order dated 10.09.2013.
3. The learned counsel for the appellant has assailed the judgment and decree passed by the learned Single Bench on two grounds. As against Alamgir Elahi, respondent No,6, who was the defendant No,6 in the suit, it has been contended that the learned Single Bench went wrong in deleting the name of the said defendant from the array of defendants at the same time when the leave was granted to the said defendant. The learned counsel for the respondent Aalamgir Elahi supports the portion of the judgment regarding the said respondent and states that the learned Single Bench was justified in proceeding to strike out the name of the said respondent/defendant from the array of the defendants and no cavil can be taken to it.
4. Having gone through the judgment of the learned Single Bench, with regard to respondent No,6, we do not consider that the said portion of the judgment is sustainable. It is true that the learned Single Bench came to the conclusion that substantial question of law and fact had been made out and which entitled respondent No,6 to have been granted leave to defend. To that extent no exception can be taken to the judgment and decree. However, in the next paragraph the learned Single Bench went do to strike off the name of the respondent No,6/defendant No,6 from the list of defendants in terms of Order I, Rule 10, C.P.C. This was clearly not countenanced and if the leave had been granted to the said respondent, it was proper that issues should have been framed and the parties permitted to lead their evidence pro and contra. By making the order of deletion of the name of respondent No,6/defendant No,6 from the array of the defendants, the right of the appellant/decree holder bank to assert otherwise and to make out a case that the suit ought to proceed against the said respondent and to establish his liability towards the decree-holder bank was seriously jeopardized. The course adopted by the learned Single Bench was improper and cannot be sustained.
5. The appellant has also challenged the finding at paragraph 15 of the judgment rendered by the learned Single Bench. Having gone through the said portion of the judgment, it is clear that the learned Single Bench clearly went wrong in returning a finding that the respondents/judgment debtors were not liable for the amount of mark up in terms of the restructuring agreement. Quite obviously, the markup was being claimed under the restructuring agreement which was not denied by the respondents. Having returned a finding that the agreement dated 18.11.2002 was valid and the objections of the respondents/defendants as to its legality and validity having been turned down by the learned Single Bench, the refusal of the learned Single Bench to award portion of the mark up in the same agreement was contradictory and without any basis. The conclusion drawn by the learned Single Bench that the mark up being claimed was in the nature of markup upon markup is not borne out from the record. The restructuring agreement and the terms under that agreement cannot be accepted piecemeal but have to be agreed upon, in toto. No bifurcation is permissible under the law nor was it urged in the application for leave to defend. It is evident that the relationship between the parties had begun much before the restructuring of the agreement and by the restructuring agreement existing facilities were rescheduled and the outstanding liabilities were converted into separate facilities to enable the defendants to repay those liabilities.
6. In view of the above, the appeal is allowed. The findings of the learned Single Bench with regard to the claim of mark up on the amount due from the defendants at the rate of 11% is set aside. Also the portion of the judgment by which it has been held that "the plaintiff has successfully proved its claim to the extent of an amount of Rs,68.309 subject to deduction of amount which the defendants have paid through 12 installments of Rs,840,278/- from 14.12.2002 to March 2004" is also set aside. The appellant-bank shall be entitled to the entire amount claimed in the suit to be decreed. The decree sheet shall be modified accordingly. Further the findings of the learned Single Bench encapsulated in paragraph 14 of the judgment are also set aside. The matter shall be remitted to the learned Single Bench for the striking of issues with regard to the respondent No,6/defendant No,6 and for giving an opportunity to the parties to lead their evidence with regard thereto.