JAWAD HASSAN, J.---Through this Appeal, filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellants have challenged the validity of impugned judgment and decree dated 13.03.2014 passed by the Banking Court-III, Lahore (the "Banking Court") whereby it decreed the suit of the Respondent.
2. Brief facts of the case are that the Appellants obtained finance facility from the Respondent in the year 2005 and mortgaged their property as security which facility, later on, was also renewed by the Respondent Bank on the request of the Appellants who executed various finance documents in favour of the Respondent. But on their default in repayment of said loan facility the Respondent Bank filed a suit for recovery of Rs,32,764,784.43/- against the Appellants. The Appellants filed application under section 10 of the Ordinance raising certain legal as well as factual objections. The Banking Court vide the impugned judgment, decreed the suit of the Respondent to the tune of Rs,25,867,983.44 along with costs of suit and cost of funds under sections 3 and 17 of the Ordinance.
Hence, this Appeal.
3. The learned counsel for the Appellants inter alia contended that the impugned judgment and decree is against law and fact; that the Banking Court has not applied its judicial mind while passing the impugned judgment and decree; that the Appellants have raised certain facts which could not be determined without recording of evidence, as such the Banking Court has failed to appreciate the facts in its true perspective; that the claim of the Respondent was on erroneous calculation, as such liable to be set aside. Learned counsel, in support of his arguments has placed reliance on the case titled Citi Bank N.A. A Banking Company through Attorney v. Riaz Ahmed (2000 CLC 847), Messrs United Dairies Farms (Pvt.) Limited and 4 others v. United Bank Limited (2005 CLD 569) and Apollo Textile Mills Ltd and others v. Soneri Bank Ltd. (2012 CLD 337).
4. On the other hand learned counsel for the Respondent has vehemently opposed the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of the Appeal on the ground that the judgment and decree was passed on the basis of valid documents produced by the Respondent and therefore, no exception can be made to the same.
5. We have heard the arguments of both the sides and perused the record.
6. When any case in which the summons has been served on the Defendant as provided for in subsection (5) of section 9 of the Ordinance, section 10 of the Ordinance provides full opportunity to the Defendant to defend his case by filing application for obtaining leave from the Banking Court. It is however, pertinent to mention here that the said Section contained certain requirements which have to be fulfilled by the defendant in strcito sensu. For the sake of brevity the said Section is reproduced herein below and is as follows: "10. Leave to defend.- (1)In any case in which the summons has been served on the defendant as provided for in subsection (5) of section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice.
(2) The defendant shall file the application for leave to defend within thirty days of the date of first service by any one of the modes laid down in subsection (5) of section 9: Provided that where service has been validly effected only through publication in the newspapers, the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof.
(3) The application for leave to defend shall be in the form of a written statement, and shall contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded.
(4) In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following.
(a) the amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payments; (b)the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit; (c)the amount if any which the defendant disputes as payable to the financial institution and facts in support thereof: Explanation. - For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any, against the principal amount of the finance.
(5)The application for leave to defend shall be accompanied by all the documents which, in the opinion of the defendant, support the substantial questions of law or fact raised by him.
(6)An application for leave to defend which does not comply with the requirements of subsections (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement."
7. From the perusal of above reproduced Section, it is crystal clear that the Appellants were required to specifically mention the amount of finance availed by them from the Respondent; the amounts paid by them to the Respondent and the dates of payments as well as the amount of finance and other amounts relating to the finance payable by them to the Respondent upto the date of institution of the suit. But the said application reveals that the Appellants have neither mentioned anything in this regard nor extend any sufficient cause for their inability to comply with such requirement rather made vague averments, simply denying the claim of the Respondent and only mentioned that according to the loan balance certificate dated 23.07.2007 the total finance facility of the Appellants is Rs,17.451 million only. Consequently, we feel no hesitation to hold that the appellants have not fulfilled the requirements of the section 10 of the Ordinance, as such the same has rightly been rejected. Whereas on the other hand the record reflects that Respondent, in paragraph 5 of the plaint has mentioned the detail of relevant amounts and has also appended with its suit all the relevant documents which too have been mentioned and relied upon by the Banking Court in paragraph 7 of the impugned judgment. The application filed by the Appellants under section 10 of the Ordinance also reveals that the Appellants have admitted execution of certain documents. Mere alleging that the suit of the Respondent is based on mala fide is not enough to negate the claim of the Respondents which otherwise has been proved through valid documents.
8. So far as the contention of the Appellants taken in ground (d) of this Appeal that the learned judge passed the judgment and decree in excess of the legitimate claim which is in fact in excess of its jurisdiction is concerned, in this regard it is pertinent to refer paragraph No,7 of the impugned judgment in which the Banking Court decreed the suit to the extent of Rs,25,867,983.44 instead of claimed amount i,e, Rs,32,764,784.43 and has specifically declined the claim of the Respondent to the extent of Rs,6,896,800.99 in respect of mark-up charged after the date of default.
9. It is also observed here that the Banking Court after appreciating the grounds taken by the Appellants in the application under section 10 of the Ordinance as well as all the documents available on record, has passed the impugned judgment and decree, as such no exception can be made to it. We have also gone through the judgments cited by the learned counsel for the Appellants and found that the same cannot be relied upon as the facts and circumstances of the case in hand are distinguishable from that of the cited judgments.
10.We, therefore, fully agree with the findings of the Banking Court and do not find any illegality in the impugned judgment and decree which has been passed in consonance with the spirit of law, hence, does not call for interference by us.
11.In the above circumstances, this Appeal, being devoid of any merit, is hereby dismissed with no orders as to cost.