AYESHA A. MALIK, J. --- This Appeal has been preferred against judgment and decree dated 27.09.2012 passed by Judge Banking Court-II, Gujranwala in a suit for recovery of Rs, 36,256,458.79/- filed by the Respondent Bank against the Appellants.
2. Brief facts of the case are that Respondent Bank filed a suit for recovery of Rs, 36,256,458.79 against the Appellants, which was partially decreed vide impugned judgment and decree dated 27.09.2012 in favour of the Respondent Bank in the amount of Rs, 35,002,927.65. Learned counsel for the Appellants argued that the impugned judgment is not a speaking judgment and that it did not address all the objections raised by the Appellants in the PLA. Learned counsel further argued that specific entries in the Statements of Account ("SOA") were disputed which argument was not addressed. Further that a case of fraud was made out by the Appellants against the Respondent Bank for which F.I.R. No, 272/2008 was lodged giving credence to the Appellant's ground of fraud.
Learned counsel argued that there was no relationship of customer and bank between the parties and all signatures were fraudulently procured on blank documents. The other argument is that the Appellants filed a suit for cancellation of documents, declaration, redemption of charges, rendition of accounts, permanent and perpetual injunction and recovery with profit till realization of amount and costs against Respondent Bank, which is pending and leave was granted to the Bank on the same day as the Bank's suit was decreed. This goes against the settled principles of law as the leave should have been granted to the Appellants in the Bank's suit and both cases should have been heard together.
3. Learned counsel for the Respondent Bank argued that no ground of this kind is made out and that the suit of the Bank was decided in accordance with law. The signatures on the documents cannot be denied. Disbursement and utilization is not denied hence the Appellants are liable to pay the outstanding amount. Learned counsel further argued that no substantive question was raised and the specific entries highlighted do not establish the case of the Appellants.
4. As per the record suit for recovery of Rs, 36,256,458.79 was filed by the Respondent Bank on 07.10.2010 whereas the Appellants filed a suit for cancellation of documents, declaration, redemption of charges, rendition of accounts, permanent and perpetual injunction and recovery with profit till realization of amount and costs against the Respondent Bank on 27.07.2010, prior to the suit of the Respondent Bank. PLAs were filed in both cases, however suit of the Bank suit was decreed on 27.09.2012 and in the suit filed by the Appellants leave was granted to the Bank on 27.09.2012. The first and main ground of the Appellants is that since leave was granted in their suit, which is still pending, the same should have been the fate of the suit of the Bank. Reliance is placed on "Zeeshan Energy Ltd. and others v. Faysal Bank Ltd. (2014 CLD 696). We have examined this argument and are of the opinion that the pendency of the suit of the Appellants does not necessarily require that leave be granted in the suit of the Bank. In terms of the case referred above, the august Supreme Court of Pakistan held that mere filing of a suit by a borrower will not be sufficient as a general rule, for grant of leave to defend to a customer in a case filed by a Bank or financial institution. We however, cannot give any weight or credence to the submission (whether correct or not) that customers routinely file suits against financial institutions. As a Court exercising jurisdiction in a specific case we have to examine the particular facts of the case. In the case before us the suit of the Respondent Bank was decreed on the basis of availing the finance facility and security documents relied upon by the Respondent Bank. The Banking Court might have been mindful of this fact while granting leave in the suit of the Bank. We are of the opinion that each case will be seen on its own facts and circumstances. The fact that the Bank was granted leave in their suit will create no right to grant it leave in the Banks' suit. Even the judgment relied upon has decided the case on the basis of the material before the Court having its own facts and circumstances.
5. The case of the Respondent Bank is, that it filed a suit for recovery in the amount of Rs, 36,256,458.79 based on three finance facilities applied in the year 2007. All the financing agreements alongwith security agreements were appended with the suit. SOA were appended and the requirements of Section 9 of the Financial Institution (Recovery- of Finances) Ordinance, 2001 ("F10") were duly fulfilled. In the PLA filed by the Appellants conflicting arguments were taken as on the one hand documents and signatures were denied and on the other hand, the Appellants submitted that they signed blank documents and that the facility was offered but never availed as the Respondent Bank has not done so which it was required to do therefore, failed to fulfill its commitment. In paragraph D of the PLA we note that the Appellants admit that they entered into a relationship with the Bank for running finance facility of Rs, 20 Million. However, in this paragraph it is their contention that the Bank did not allow them to utilize the facility as required by them. It is also their contention in this paragraph that wrong cheques were issued and certain amount was fraudulently taken out of the accounts of the Appellants. The Appellants deny withdrawal on the ground that fraud had been committed with their account as they had never withdrawn any amount. They also dispute the signatures on the mortgaged deed and also dispute certain entries in the SOA.
6. We have gone through the record and note that every conceivable ground has been taken in the PLA on the basis of which the Appellants have denied the execution of the documents, disbursement of the funds and its utilization. Learned counsel for the Appellants has stressed on these grounds to urge the point that since the documents were denied the substantial questions of law and facts have been raised so leave should have been granted.
7. With respect to the argument that some fraud has taken place with the accounts of the Appellant and in this regard F.I.R. has been lodged, we note from the record that the F.I.R. was registered against lmran Ashiq Junior Cash Officer/Operation under Sections 406., 471, 477, 420 and 468 Pakistan Penal Code, 1860 for having" taken money, which should have been deposited in different accounts. The statement recorded in the F.I.R. has nothing to do with the accounts of the Appellants or the alleged fraud as narrated by the Appellants. There is nothing on record to substantiate the allegation of fraud or that the cheques were unlawfully issued by some unknown persons. Under the circumstances, the Appellants have not been able to make out a case that the withdrawals allegedly stated to have been made by someone else were not made by the Appellants. The Appellants have also raised specific objection with respect to entries dated 03.04.2010 and 11.06.2010 on the ground that three different cheque books were used which were never issued to the Appellants. We have examined the record and find that there .is no merit in this argument. There is nothing on record to show that cheque books were not issued in the name of the Appellants or that they did not make the withdrawals. Even otherwise, the entry of 03.04.2010 as per statement does not reflect that different cheques were used and the entry shows that there was a fund transfer, cheque return and cash withdrawal on the given date. As to the entry of 11.06.2010 again the claim of the Appellants that different cheques were used from different cheque books is not substantiated from the SOA.
8. The record shows that the finance agreement and security agreement were duly executed, disbursements were made, the running finance facility was renewed in the years 2008 and 2009 at which time the Appellants never raised any objection with respect to the SOA or cheque books. The impugned order finds that SOA is also annexed with the plaint showing existence of certain credit entries which reveals repayment of certain amounts on the part of the appellants/defendants at different time. The said SOA was duly verified by the bank in accordance with Banker's Books Evidence Act, 1891 and as such presumption of truth is attached to such documents. In this view of the matter, the appellants/defendants have failed to raise any substantial questions of law and facts for warranting grant of leave to appear and defend the suit in the given circumstances of the case. The case-law cited by the learned counsel for the appellants/defendants was not applicable to the facts and circumstances of the instant case.
9. In view of the above, no case for interference is made out. This appeal is dismissed and the impugned judgment and decree dated 27.09.2012 passed by the learned Judge Banking Court-li, Gujranwala is maintained.