QAISER RASHID KHAN, J.---Through the appeal in hand, the appellant has called in question the judgment and decree dated 2.2.2019 of the learned Judge Banking Court-I, Peshawar , whereby the recovery suit of the respondent-Bank was decreed against the appellant-defendant to the tune of Rs.52 ,77,481/- along with mark-up till the date of default i.e. 01.01.2012 together with costs of funds and costs of the suit.
2. Brief facts of the case are that Messrs Standard Chartered Bank, of Pakistan through its Manager Litigation (North) filed a suit for the recovery of Rs.82,52,150/54 along with cost of funds etc against the appellant Irfanullah, stating therein, that the respondent-bank had purchased the Union Bank Limited with all its assets and liabilities way back in 2007 and after completion of all the merger formalities, the State Bank of Pakistan had also issued a certificate in this respect. The erstwhile Union Bank Ltd provided banking services to its customer including the Home Finance Facility and the appellant too, applied for the "Home Loan" of Rupees 5.9 million to the Union Bank Limited, which was accordingly sanctioned in his favour in the year, 2006.In order to secure the said finance facility , the appellant executed a finance Agreem ent on mark-up basis in favour of the bank. By way of collateral security , he also equitably mortgaged his property /house through Memorandum of Deposit of Title Deeds and execution of Irrevocable Power of Attorney in favour of Union Bank Limited. However , the appellant failed to repay the outstanding amount to the respondent-bank despite repeated demands which necessitated the filing of the recovery suit before the learned Banking Court.
On being summoned, the appellant filed an application for leave to defend the suit, which was granted to him vide order dated 16.4.2016 and keeping in view the pleadings of the parties, the learned trial court framed the following issues:-
1. Whether the plaintif f bank has got the cause of action to bring the present suit?
Whether the suit has been filed by authorized person?
3. Whether the suit is barred by time?
4. Whether the suit is bad for non joinder of necessary party?
Whether the statement of account has not been prepared in accordance with law?
6. Whether the defendant is neither a customer nor surety of the finance facility in question?
7. Whether the loan was not disbursed to the defendant, if so its ef fect?
8. Whether the finance facility in question was secured through immovable property and mortgaged deed in this regard has properly been executed?
9. Whether the defendant has made payments towards adjustment of the finance facility in question, if so its ef fect?
10. Whether the defendant is not liable to any payment towards the suit amount?
11. Whether the plaintif f bank is entitled to the decree, as prayed for?
12. Relief.
3. On behalf of the respondent-bank, Mr. Shahbaz Khan, Manager Litigation (North) appeared as PW-1, who relied on his statement on affidavit (Ex.PW -1/1), wherein, he has given a detailed account as to how the appellant had availed of a Home Finance Facility of rupees 5.9 million from the erstwhile Union Bank Ltd in the year 2007 through pledge of. House No.49 Street No.6 Gulshan-e-Iqbal Colony , Arbab Road, University Road, Peshawar by depositing the original title documents including registered sale deed and concerned revenue record with the respondent-bank and also executed a memorandum of deposit of title deeds in this respect in its favour . Later on, the said bank was purchased by M/S Standard Chartered Bank along with its assets and liabilities through a letter of Amalgamation of Standard Chartered Bank Branch Business and Union Bank Limited with and into Standard Chartered Bank (Pakistan) Limited (SCPBPL) issued by the State Bank of Pakistan on December 4, 2006. The appellant paid the last instalment of loan on 29.12.201 1 of Rs.83,187/- and thereafter , defaulted on 29.1.2012. He also produced the original sale deed by Mst. Rahat-un-Nisa in favour of Irfanullah (Ex.PW -1/3), Fard Numberwar of Mouza Tehkal Payan issued on 16.11.2006 (Ex.PW -1/4), Fard Numberwar of Mst. Rahatun-Nisa issued on 13.6.2006 (Ex.PW -1/5) Original mutation No.12687 attested on 7.2.2006 in favou r of Irfanullah (Ex.PW -1/6), site plan (Ex.PW -1/7), Non Encumbrance Certificate (Ex.PW -1/8), original receipt issued by the TMA dated 13.7.2006 (Ex.PW -1/9), original undated sale deed between Mst. Rahat-un-Nisa and Irfanullah (Ex.PW -1/10), original agreement dated 30.6.2006 between the appellant and the respondent-bank (Ex.PW-1/11) and loan application (Ex.PW -1/12). This PW was subjected to the cross examination of the choice of the appellant where every effort was made to shatter his testimony , but he remained steadfast.
As against that, Humayun Iqbal appeared before the learned trial court and recorded his statement as DW-1, who stated to be a property dealer by profession having rendered his services for selling the Bungalow situated at.
Gulshan Iqbal Town Mouza Tehkal Paya n, Peshawar of Mst. Rahat-un-Nisa to one Irfanullah against the sale consideration of Rs.60,00,000/- out of which an amount of Rs.1,00,000/- was paid as earnest money while the remaining amount of rupees 5.9 million was paid through a bank draft. In this respe ct, a sale deed dated 13.7.2006 (already exhibited as Ex.PW -1/3) was executed between the parties of which he is a marginal witness. Khalid Khan recorded his statement before the court as DW-2, who is marginal witness of sale deed dated 13.7.2006 (Ex.PW - 1/6) and narrated the same story as given by DW-1. The appellant himself appeare d before the court as DW-3 and reiterated the same story as alleged by him in his leave to defend application by denying the availment of any finance facility from the respondent-bank.
The learned trial court after recording evidence of the parties, decreed the suit of the respondent-bank against the appellant to the tune of Rs.53,77,481/- along with markup till date of default i.e. 29.1.2012 together with costs of suit and cost of funds from the date of default till final realization vide judgment and decree dated 2.2.2019. Hence, the instant appeal.
4. The learned counsel for the appellant contends that the appellant had never availed of any finance facility from the respondent-bank and that all the documents including the finance agreement, so annexed with the plaint were forged in order to burden the appellant with huge monetary liability . Further contends that there is no mortgage of the property in favour of the respondent-bank and even the Memorandum of Deposit of Title Deeds on the basis of which the title documents are alleged to have been deposited with the respondent-bank have neither been certified nor exhibited during the course of trial and that he had raised such legal and factu al objections before the learned trial court at the trial. Next contends that Shahbaz Khan, Litigation Manager of the respondent-bank (PW-1), who verified the contents of the plaint as well as deposed before the learned Banking Court was not authorized by the bank in this behalf and more so, the General Power of Attorney as executed in his favour by the respondent-bank had already expired by the time the recovery suit was filed against the appellant and thus, the suit at best could be termed to have been filed by one who was not vested with any authority to do so. Next contends that the pay order on which reliance has been placed by the respondent-bank was on account of some personal deal between the appellant and Mst. Rahat-un-Nisa from whom the appellant had purchased the house for a sum of rupees 5.9 million but such document has in turn been portrayed by the respondent-bank to be on account of the house purchased through a finance facility from the respondent-bank. Lastly , contends that whereas the last payment as per the statement of account of Rs.83,000/- was made in the year 2011 and the recovery suit was filed in the year 2016, therefore, in terms of Article 164 of the Limitation Act the suit of the respondent-bank was time barred and such objection was not only raised by the appellant in his leave to defend application but was also put across during evidence as well but did not find favour with the learned Banking court while decreeing the suit against him and thus, the impugned judgment and decree of the learned Banking Court, Peshawar is liable to be revisited.
5. The learned counsel for the respondent-bank on her turn defends the impugned judgment and decree of the learned Banking Court on almost the same grounds as detailed therein with the addition that in fact the respondent- bank after its merger with the Union Bank had inherited its liabilities as well and that is how the appellant being a defaulter of the erstwhile Union Bank was sued by the respondent-bank through a recovery suit and that the original title documents of the property on the basis of which the appellant Irfanullah purchased the property from Mst. Rahat-un-Nisa have been retained by the respondent-bank and are still in their possession.
6. Arguments heard and the available record perused.
7, As the record unfolds, it was the respondent-bank who filed a recovery suit against the appellant before the learned Banking Court-I, Peshawar for a sum of Rs.82,52,150/54 basing their claim on the Agreement for Finance and Memorandum of Deposit of Title Deeds. The record further shows that in fact the "Home Loan" finance facility was advanced, by Messrs Union Bank to the appellant. We have also before us a deed of merger or letter of amalgamation of Messrs Union Bank with Messrs Standard Chartered Bank of Pakistan (respondent-bank) whereby all the assets and liabilities of the Union Bank stood transferred in favour of the respondent-bank. During the course of arguments, our attention was also drawn to a registered sale deed (Ex.PW -1/3) of the appellant with Mst. Rahat-un-Nisa showing an amount of Rs.1,00,000/- have been paid in cash and an amount of rupees 5.9 million through a Pay Order No.472998, dated 30.6.2006. The said pay order dated 30.6.2006 shows an amount of rupees 5.9 million to have been paid to Mst. Rahat-un-Nisa on behalf of the appella nt Irfanullah. The number of the pay order tallies with the number as appears in the original sale deed between the appellant and Mst. Rahat-un- Nisa. It needs no reiteration that a mere denial simplicitor on behalf of the borrower in the instant case carries little weight so long as the same is not substantiated by ample proof. In the case in hand, the original documents of the property including the registered sale deed between Mst. Rahat-un-Nisa and the appellant are in the possession of the respondent-bank. During the trial before the learned Banking Court, not an iota of evidence has been brought forth by the appellant as to how the respondent-bank has been able to get the possession and the custody of the documents which of course belong to the appellant.
8. So far as the objection regarding the expiry of the General Power of Attorney in favour of the Litigation Manager namely Shahbaz Khan is concerned, it goes without saying that where the Officer is in the service of the bank, then as per the Banking Practice and Procedure, he is supposed to have a Power of Attorney in any case as the same is renewed at regular intervals as and when it expires. More so, section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 duly provides that a recovery suit can be filed against a borrower by the Manager in his personal capacity as well and the same may not necessarily be accompanied by any power of attorney executed in his favour by the bank.
9. Now coming to the statement of account. It appears to be a system generated document and in that case, it does not have to bear the signatures of the attorneys of the bank as was the earlier practice when such statements of accounts were prepared manually . The statement of account as annexed with the plaint has been duly certified within the meaning of Section 4 of the Bankers' Books Evidence Act 1891 and is thus an authentic and a valid document.
10. As regards the issue of limitation pressed by the learned counsel for the appe llant is concerned, we are afraid the same is both misplaced and misconceived. In the present case, the "Home Loan" advanced to the appellant was secured through a Memorandum of Deposit of Title Deeds and for enforcing a suit of equitable mortgage, the time of limitation is 12 years from the time when a money sued for becomes due. This is what Article 132 of the Limitation Act, 1908 is all about. Thus, the recovery suit as filed against the appellant was well within time.
11. Such being the case, we understand that the learned Banking Court, Peshawar has duly attended to the controversy , so involved in the matter and has rightly decreed the suit of the respondent-bank against the appellant through the impugned judgment and decree. Such findings do not suffer from any illegality , misreading or non- reading of record and evidence, so as to in turn call for the indulgence of this court through the present appeal.
12. Resultantly , this appeal along with CM being without any substance stand dismissed.