This regular first appeal filed under section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 (the Ordinance) challenges judgment and decree dated 22.10.2013 passed by the banking court whereby the suit filed by the respondent bank was decreed.
2. Facts in brief are that the respondent bank instituted a suit against the appellants seeking recovery of Rs,30,928,922/- due under a Morabaha Finance facility. The appellants filed a joint application for leave to defend but the questions of law and facts contained therein were not considered worthy of merit and accordingly the suit was decreed in favour of the respondent bank in the sum of Rs,16,133,090/- representing the principal amount of the facility.
3. The learned counsel for the appellants submitted that the requisite transactional documents of the Murahaba were not appended with the suit and that the amounts deposited by the appellants were adjusted towards the alleged profit. It was submitted that without substantiating the transactions under the Murabaha facility, the respondent bank. could not have adjusted the amounts deposited by the appellants towards the profit. Learned counsel for the respondent bank, on the other hand, supported the judgment and decree passed by the banking court.
4. Arguments heard and record perused.
5. The parties are not at issue with regard to the finance facility for. Rs, 50 Million, the execution of finance documents thereunder or the disbursal of the amount. In fact the appellants in their application for leave to defend in paragraph. No, 2 gave a chart detailing the Murabaha transactions under which amounts were disbursed from time to time as also the amounts repaid by them. In view of the admission of the transactions in the said chart, the objection regarding the non-submission of the transaction documents is not of much force.
6. As per the said chart the last four transactions carried out on 29.04.2009 and 13.05.2009 remained unpaid barring a partial adjustment of Rs,8,910/- on 04.02.2011. After taking into account the amounts of the said transactions and the partial adjustment made on 04.02.2011, the, outstanding amount comes to Rs,16,133,090/- which was the amount claimed in the suit. The appellants in paragraph No,5 of their application for leave to defend admitted having paid a total sum of Rs,41 Million on 18.06.2009, 11.06.2009, 15.10.2010 and 03.02.2011, which amounts are duly reflected in the statement of current account available on record. It was, however, stated that the respondent bank reduced the amount of facility from Rs,50 Million to Rs,41 Million through sanction letter dated 21.04.2009 and that after the issuance of the said sanction letter the appellants paid the aforementioned amount of Rs,41 Million. This submission has no merit in as much as necessary finance documents in pursuance of the said sanction letter were never executed and therefore, the said sanction never came into force. Be that as it may, the appellants addressed a number of fetters to the respondent bank thereafter seeking permission to sell the mortgaged property for settlement of the outstanding amount. These letters are available on the record and have not been rebutted by the appellants. In view of the clear admission of the liability contained in the said letters, the appellants cannot be allowed to deny the suit liability.
7. The statement of profit was appended with the suit. The appellants, however, did not impugn any entry of the said statement. It, therefore, does not lie in their mouth to allege that the excess amount was charged as profit and that the amounts repaid by the appellants were illegally adjusted towards the same. It may be stated that the respondent bank did not claim any amount as profit in the suit and that the amount of charity for Rs,14,795,832/- was disallowed by the banking court. It is, therefore, clear that the appellants did not raise any dispute on facts requiring recording of evidence for its resolution. Their application for leave to defend was, therefore, rightly rejected by the banking court.
8. In the circumstances, no case for interference is made by in the judgment and decree passed by the banking court, therefore, this appeal being devoid of any merit is dismissed.