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.179,209,869.55 from the defendants on account of various finance facilities granted to them and default by them of their payment obligations.
2. Brief facts of the case are that the defendants availed various finance facilities from the plaintiff bank under sanction advice dated 23.10.2013 with expiry on 31.08.2014 including the Cash Finance
(CF) and Running Finance (RF). The defendants also executed finance documents in respect to the finance facilities as mentioned in the plaint. The said finance facilities were lastly renewed by the plaintiff bank in the year 2014 through sanction advice dated 26.02.2015 with expiry on 31.08.2015.
The defendants once again executed the finance documents as mentioned in paragraph No.11 of the plaint. As the defendants failed to pay the amounts of the CF and RF facilities in the time and manner agreed between the parties, the plaintiff bank was constrained to file the present suit.
3. In pursuance of the summons issued by this Court,. the defendants entered appearance and filed their joint application for leave to defend bearing P.L.A. No.11-B of 2016 (the PLA).
4. Today the learned counsel for the defendants despite repeated calls did not enter appearance, therefore, the defendants are proceeded against ex parte.
5. This Court has itself gone through the record particularly the PLA filed by the defendants to ascertain the nature of dispute raised by them. The defendants have raised the following objections with regard to claim of the plaintiff bank: a. The suit filed by the plaintiff bank is incompetent in the absence of the resolution of Board of Directors. b. Finance agreements executed in the year 2013 do not contain the purchase price. c. The plaintiff bank has charged penal mark up on the finance facilities. d. The finance facilities were allegedly executed, vide sanction advice dated 05.03.2015 but the finance documents were shown to have been executed on 01.112014. e. The statements of accounts of the finance facilities are not certified in accordance with the Banker's Book Evidence Act, 1891. f. The statement of RF account (Principal) has not been appended with the plaint.
6. Learned counsel for the plaintiff bank, on the other hand, submits that the suit claim is substantiated from the documents available on record.
7. The suit has been instituted by the plaintiff bank through its officials and their powers of attorneys have also been appended with the plaint. Section 9 of the Ordinance empowers three categories of persons to file a suit (a) the branch manager (b) an officer authorized by a power of attorney and (c) an officer who is otherwise authorized by a financial institution. It is quite clear that an officer of a financial institution who holds a power of attorney in his favour nec not append anything else other than the said power of attorney to demonstrate his authority to institute the suit under section 9 of the Ordinance. Had it not been so, section 9 of the Ordinance would have required production of further documents other than the power of attorney by the attorney holder to demonstrate the authorization of the person executing the power of attorney. Under section 9 of the Ordinance, an officer of the financial institution holding a power of attorney is the designated person to file suits on its behalf (see Ihsan-ul-Haq v. MCB Bank Limited 2016 CLC 187). The suit of the plaintiff bank has, thus, competently been filed.
8. Record shows that the defendants sought renewal of finance facilities and submitted the borrower's fact sheet on 12.11.2014. The necessary approval was granted by the competent authority by the plaintiff bank on 26.02.2015 whereas the sanction letter was issued on 05.03.2015. The finance documents were, however, shown to have been executed on 01.11.2014. It is not uncommon for the customers to execute the finance documents at the times of the expiry of the finance facilities awaiting the sanction of the said facilities from the competent authority if the bank in order to carry on operations in the finance accounts. Be that as it may, the fact of the matter is that the finance facilities and the amounts thereof are not disputed by the defendants. The execution of the finance documents is also not denied. The objection on the date of the finance documents is, therefore, immaterial more so when the defendants have accepted the terms and conditions of sanction letter dated 05.03.2015 by putting their signatures thereon.
9. The objection that the statement of RF account is not appended with the plaint is also not correct. The statement of current account is relied upon by the plaintiff bank in which the transactions of RF facility were parked. In addition to the renewal of the RF facility for Rs.60 Million, temporary enhancement of Rs.4 Million was also allowed by the plaintiff bank in regard to which the defendants executed the necessary documents on 05.03.2015. The issue of charging of penal mark up has no merit in as much as the defendants have failed to impugn a single entry in the statement of account. The perusal of the statements of account show that they were prepared in accordance with Bankers' Book Evidence Act, 1891, therefore, objection of the defendants in this regard has no force. The claim of the plaintiff is based on the finance facilities availed in the year 2014 and as such any objection on the finance documents executed in the year 2013 has no merit in it.
10.Record further shows that the defendant in their borrower's basic fact sheet submitted on 12.11.2014 for renewal of the finance facilities admitted the existing finance facilities and amounts' thereof. Similarly the sanction letter dated 05.03.2015, was duly acknowledged by defendants by putting their signatures thereon. The defendants also executed the finance documents which included the demand promissory notes and their personal guarantees. Although the defendants did not impugn any entry of the statement of accounts, record shows that the plaintiff 'bank had charged mark up beyond the expiry period of the finance facilities. After discounting the mark up charged beyond the expiry period, the plaintiff bank is entitled to claim mark up amounting to Rs.11,954,156.03 under the CF facility whereas an amount of Rs.8,236,209.68 is due up to 31.08.2015 under the RF facility. There is, however, no dispute with regard to the principal amounts of, CF and RF facilities.
11. The defendants have thus failed to raise any defense on facts requiring recording of evidence.
The application for leave to defend filed by the defendants is accordingly dismissed. The suit filed by the plaintiff is decreed in its favour and against the defendants, jointly and severally, in the sum of Rs. 169,266,724.67 together with the costs of funds as contemplated by section 3 of the Ordinance. Costs of the suit are also granted.