JAWAD HASSAN, J. Through this Appeal, filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance ") the Appellants have assailed the validity of judgment and decree dated 01.07.2014 passed by Judge Banking Court-II, Lahore (the "Banking Court ") in the suit filed by the Respondent, whereby it decreed the suit of the Respondent National Bank of Pakistan Limited (the " Bank ").
2. Brief facts for the disposal of this appeal are that the Bank, filed a suit against the Appellants for recovery of a sum of Rs. 17824898.31/-. The Appellants appeared and filed application under section 10 of the Ordinance for grant of unconditional leave (the "PLA") to defend the suit. The said petition for leave to appear and defend the suit was dismissed and resultantly the suit was decreed by the Banking Court, vide the impugned judgment and decree dated 01.07.2014 to the tune of Rs.1,78,24,898/- in favour of the Bank and against the Appellants jointly and severally with costs along with costs of funds to be determined under sections 3 and 17 of the Ordinance. Rest of claim of the Bank in respect of markup after the date of default was disallowed. Hence, this appeal.
3. Learned counsel for the Appellants has argued that the Judge Banking Court has passed the impugned judgment and decree without adhering to the fact that all the documents annexed with the plaint were faulty and not in accordance with law; that the Banking Court has passed the decree of the entire amount claimed by the Bank i.e. Rs.17,824,898.31; that admittedly , the Finance Agreement relied upon by the Bank in the suit was executed on 31.12.2008 and valid till 31.12.2009 (the "agreement "); that while passing the impugned judgment, the learned Judge Banking Court No.2, has solely relied upon the tables provided by the Bank at clause No.7 of the suit in order to calculate and thereafter determine that a sum of Rs.17,824,898/- is payable by the Appellants to the Respondent Bank; that the aforesaid tables and figures relied upon by the Judge Banking Court No.2, Lahore do not corroborate and/or correspond to the statement of account relied upon by the Bank; That the objections taken in the PLA filed with the Banking Court were not considered while passing the impu gned judgment and decree; that the Banking Court passed the impugned judgment and decree in a slipshod manner and did not adhere to the pertinent and important questions of law; that the Banking Court has failed to appreciate the law laid down by Superior Courts that after dismissing the PLA to defend the suit, the Banking Court is not absolved from its primary duty of seeing and adjudging the genuineness of the claim of the Bank. that it was specifically objected and alleged by the Appellants that Mr. Abdul Shakoor Khan who had instituted the suit was neither Branch Manager nor holds a valid power of attorney for instituting the suit on behalf of the Respondent Bank; that under section 9(1) of the Ordinance, a suit on behalf of a financia l institution can be instituted before Banking Court either by the Branch Manager or by such other officer of the financial institution who may be duly autho rized in this behalf by power of attorney or otherwise; that there is no power of attorney attached with the plaint and this makes it abundantly clear that the same was not instituted by an authorized person; that there is no copy of the Resolution passed by the Board of Directors of the Bank whereby it authorized any officer/s to issue the requisite Power of Attorney in favour of Mr. Abdul Shakoor Khan and the same was not attached with the plaint; that the learned Judge Banking Court has acted illegally and with material irregularity and did not take notice of the fact that there was a clear denial about the genuineness and authenticity of the Statement of Account as well as other documents attributed to the Appellants. Lastly , he prayed for setting aside of the impugned judgment and decree and acceptance of the appeal.
4. On the other hand, no one has appeared on behalf of the Respondent Bank to support the impugned judgment and decree.
5. Arguments have been heard and record perused.
6. We have examined the record with the file and perused the impugned judgment in detail. It is reflected from perusal of the record that admittedly , the Appellants have not denied the relationship of the Bank and the customer and also not denied the availing of finance facility from the Bank, therefore, it cannot be said that the Bank has no cause of action and plaint is liable to be rejected under Order VII, Rule 11, C.P.C. It also transpires from perusal of record that the plaint is signed and verified by Branch Manager , who is competent to file the suit under the law. It is evident from the record that the Bank had filed a suit for recovery of Rs.1,78,24,89 8.31, which was decreed by the Banking Court as prayed for in favour of the Bank and against the Appellants jointly and severally with costs along with cost of funds to be determined unde r Section 3 of the Ordinance. The availin g of finance facility , execution of charge documents and making of repay ments are admitted facts by the Appellants/defendants in his PLA, so formal objections raised by the Appellants regarding statement of account and other charge documents cannot be given any weight as the Appellants had failed to produce any reliable material in support of their contentions.
According to Appellants only a sum of Rs.87,76,794/- is outstanding against them but they have not produced any supportive document to substantiate this assertion. The suit has been filed in accordance with the provisions of Section 9 of the Ordinance. The Judge Banking Court has passed the impugned judgment and decree after taking into consideration Finance Agreement, DP Note, Memorandum of deposit of title deeds, NEC, Aks Shajra, copy of mutation, certified copy of sale deeds registered on 4.1.1980, 12.07.1978, 4.6.1978 , 4.3.1980 and copy of Register of rights, clearance certificate, approved construction plan, letter of hypothecation, undertaking, declaration, agreement to create mortgage, mortgage deed, personal guarantees, copy of registration of charge by SECP and Form 10. The Banking Court finding no substance in the PLA had dismissed the same. However , it has been rightly pointed out by the counsel for the Appellants that the Banking, Court has decreed the suit of the amount as claimed by the Bank without expiry of contract period. The Appellants have admitted the liability but have not specified in the PLA that how much amount has been paid by them and markup claimed is beyond the expiry period.
7. It is concluded that the Banking Cour t contrary to law and practice relied upon entries made by the Bank to decree the suit and the said entries are illegal and- unlawful. It is reflected from perusal of record that while passing the impugned judgment, the Judge Banking Court has solely relied upon the tables provided by the Respondent Bank at Clause No.7 of the Suit in order to calculate and thereafter determined that a sum of Rs. 17,824,898/- is payable by the Appellants to the Bank, but the aforesaid tables and figures relied upon by the Judge Banking Court do not corroborate or correspond to the statement of account relied upon by the Respondent Bank. Today , the counsel for the Appellants has filed statement showing that the amount prayed by the Bank is Rs.1,78,24,898.31 which was decreed as prayed for but actually , the Bank has wrongly claimed some amounts being beyond the contract period. The description of addition/charging was amount of Rs.45,00 0/- on 16.07.2010 as principal amount, an amount of Rs.2,299,481/- from 31.03.2010 to 21.12.2010 in the garb of markup on cash finance hypothecation and an amount of Rs.172,551/- from 31.03.2010 to 31.12.2010 as D.F Markup, (Total disputed entries of Rs. 2,517,032/-) therefore, by deducting Rs.2,517,032/- the decree pass ed by the Judge Banking Court is modified to be as for Rs.15,307,866/-.
8. In view of the above, this appeal is allowed in the terms mentioned above. No order as to costs.