JAWAD HASSAN, J.---Through this regular first 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 02.10.2013 passed by the Banking Court-III, Lahore (the "Banking Court ") whereby it decreed the suit filed by the Respondent/Standard Charted Bank (Pakistan) Limited (the "Bank ") to the tune of Rs.25,635,616/- as principal amount with cost of funds under sections 3 and 17 of the Ordinance.
2. Brief facts are that the Respondent-Bank filed a suit for recovery of Rs.31,526,241/- cost of suit and cost of funds under sections 3 and 17 of the Ordinance ibid, against the Appellants before the learned Banking Court on the ground that the Appellant/Defendant No.1 a registered partnership concern and the other Appellants being its partners availed a Term Loan facility in order to meet their business requirements. Further contended the Appellant No.2 namely Abdul Qayyum son of Abdul Aziz (deceased) mortgaged his property against the said finance facility and all the three partners executed their personal guarantees in favour of the Respondent-Bank. Whereupon the Term Finance facility of Rs.25,000,000/- was extended in favour of the Appellants for a period of three years vide Banking Facility Letter dated 04.06.2007 and an agreement dated 28.06.2007 was executed between them. Added the Appellants did not comply with the terms and conditions of the finance facility and failed to liquidate the outstanding liability . The Appellants filed Application under Section 10 of the Ordinance for grant of unconditional leave to appear and defend the Suit. In response thereof the Respondent-Bank filed reply of the said Application (the "PLA"). Learned Banking Court after hearing the arguments dismissed the said Application and consequently decreed the suit of the Respondent, vide judgment and decree dated 02.10.2013. Hence, this Appeal.
3. The Appellants inter alia contended that the impugned judgment and decree is against law and facts; that the Banking Court has not applied its judicious mind while passing the impugned judgment and decree; that the learned Banking Court erred in law while dismissing the PLA; that while passing the impugned judgment and decree the learned Banking Court has not taken into consideration the specific objection raised by the Appellants in the PLA that under section 9 of the Ordinance, it is mandatory obligation to produce/annex complete and duly certified statement of account with the plaint but the Respondent-Bank has failed to do so; that the statement annexed with the plaint cannot be treated as statement of account; that the Respondent-Bank illegally and without seeking permission of the Court filed a subsequent statement of account, therefo re, the impugned judgment and decree is result of misreading and non-reading of material available on record; that the matter was to be resolved after recording of evidence as there was factual controversy between the parties, therefore, the impugned judgment and decree is liable to be set aside.
4. On the other hand learned counsel for the Respondent-Bank vehemently controverted the arguments advanced by the learned counsel for the Appellants and stated that they filed the account statement with the plaint and then filed other statement of account filed under section 10(7) of the Ordinance. He prayed for dismissal of the Appeal on the ground that the impugned judgment and decree has been passed strictly in accordance with law and as such does not call for any interference by this Division Bench.
5. We have heard the arguments of both the sides and perused the record.
6. Record reveals that the learned Banking Court has not followed the expressed mandate of law while passing the impugned judgment and decree. Under section 9 of the Ordinance, it is mandatory obligation to produce/annex complete and duly certified statement of account with the plaint but it is noted that the Respondent-Bank initially annexed "Deposit Statement" with the plaint which is not regarding the amount paid to the Appellants but later on the Respondent-Bank in its rejoinder filed the "Statement of Account". It has already been held by the learned Division Bench of this Court in the judgment cited as "Bank of Punjab v. International Cera mics Ltd. and others" (2013 CLD 1472 ) that leave should be granted as the Respondent-Bank has failed to satisfy its burden under section 9 of the Ordinance. The relevant paragraph of the judgment (2013 CLD 1472 ) is reproduced as under: "8. In the instant case the learned Judge in Chamber found that the debt entries to the defendant's account did not disclose the cheques numbers and did not disclose the account which was credited. Furthermore that the statement of the current account from where the withdrawal was said to have taken was not available on the record. During the course of the proceedings the plaintiff sought permission to place on record the statement of account of the defendant No.1 through an Application under Order VI, Rule 17, C.P.C. The learned Judge in Chamber held that since the relevant documents were not available on the record and since the plaintiff wanted to file its statement of account a case of unconditional leave to defend was made out. We have heard the learned counsel for the Petitioner at length and we are of the opinion that he was unable to point out any illegality with the impugned order . We note that the petitioner had moved an application under Order VI, Rule 17, C.P.C. for filing an amended plaint. Through the said application the Petitioner wanted to place further documents with his plaint. We find that the filing of the application under Order VI, Rule 17, C.P.C. to amend the plaint and further document the plaint itself suggests that leave should be granted as the petitioner has failed to satisfy its burden under section 9 of the F .I.O."
7. In view of above, we are of the opinion that filing of subsequent statement of account, which has not been earlier annexed with the plaint, itself suggests that leave should be granted to the Appellants as the Respondent-Bank has failed to satisfy its burden under section 9 of the Ordinance because the entries firstly relied upon did not provide sufficient data to show that the disbursement and utilization of the finance had been made by the Appellants.
7(sic.) Resultantly , this Appeal is allowed, the impugned judgment and decree dated 02.10.2013 passed by the Banking Court is set aside and the matte r is remanded to the learned Banking Court for grant of leave to defend and then decide the case afresh after recording evidence of both the sides. Partie s to the case shall appear there on 18.07.2019.