ABDUL HAMEED BALOCH, J.---This High Court Appeal under section 22 of the Financial Institutions ("the Ordinance 2001") has been filed agains t the judgment and decree dated 24.04.2017 (impugned judgment and decree) passed by the Judge, Banking Court Balochistan, Quetta (trial Court), whereby the suit filed by the respondent/decree holder for recovery of Rs.1,38,1 1,111/- was decreed along with cost of fund @- Rs.7.28% from the date of default till the realization of decretal amount in favour of plaintif f/bank.
2. Brief facts leading to file the instant appeal are that the respondent bank filed the referred suit before the trial court, alleging therein that the appellant/dependent No.1/borrower applied for Finance Loan and requested the loan amount upto the limit of Rs. 30,000,000/-(rupees thirty million only), which request was duly entertained by the bank and the loan was sanctioned; that thereafter the plaintif f/bank sanctioned the renewal of Cash Finance Facility (Pledge) Limit Rs.30.000 (M) under Seasonal Rice. Policy 2012-2013 under SBP Refinance Scheme in favour of the appellant/defendant/borrower and expiry of Cash Finance Facility of the same was scheduled on 31.07.2013 'and the date of final adjustment was scheduled on 31.08.2013. The borrower after availing the loan facility , did not abide by the terms and conditions of the agreement nor cleared the liability of outstanding amount, whereupon the respondent bank approached the borrower for depositing the outstanding liability along with mark-up as per agreed terms and conditions of the agreement, but the defendant/appellants failed to do the needful.
3. After institution of the suit, notices were issued to the defendants and publication was also made in the local press. The appellant/borrower filed application for leave to defend the suit and admitted the claim of the plaintif f to the extent of Cash Finance Facility to the tune of Rs.30.0 Million and further stated that as per schedule he repaid the loan in lump sum to the plaintif f time to time and an amount of Rs.1,000,000/- was paid to the plaintif f, but the same has not been incorporated in the statement of account.
4. The plaintif f/bank filed rejoinder to the application for leave to defend and contended that the application for leave to defend filed by the appellant is time barred as the application is not confirmatory with the mandatory mandatory provision of section 10(3)(5) of the Ordinance; that the defendant/borrower has neither denied nor rebutted none of the executed documents annexed with the suit nor complied with the requirements of section 10(3), (4) and (5) of the Ordinance 2001. The trial court after hearing both the parties, decreed the suit in favour of respondent bank vide impugned judgment and decree. Hence this appeal.
It is pertinent to mention here that this appeal pertains to the year 2017 but since admitting this appeal for regular hearing, the learned counsel for the parties either request for adjournment or remained absent, therefore we are left with no other option but to decide the same on the basis of available record.
5. We have perused the record. The record transpires that the plaintif f/respondent filed the suit on 26.10.2015. The trial court under section 9(5) of the Ordinance 2001 issued summon to the defendant and also ordered for publication in two local newspaper i.e. Daily Bakhabar Quetta and Balochistan Time Quetta. The defendant/appellant/borrower filed application for leave to defend prior to 27.11.2015. Subsection (2) of section 10 of the Ordinance stipulates thirty days for filing application for leave to defend commencing from the date of first service, whereas subsection (4) of section 10 of the Ordinance 2001 provides that the defendant shall specifically state in the application for leave to defend the amount availed and paid by him and shall also state the disputed amount if any whereas subsection (6) of section 10 of the Ordinance states that the application for leave to defend shall be accompanied by all the documents which support his/their contention. Similarly , subsection (7) of section 10 of the Ordinance 2001 provides that where the application for leave to defend does not comply with the requirements of subsections (3), (4) where applicable and (5) of section 10 of the Ordinance 2001, shall be rejected. The referred subsections of section 10 of the Ordinance being relevant is reproduced as under:
(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 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 amount 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 up to the date of institution of the suit;
(c) the amounts of finance and other amount crediting to the finance payable by the defendant to the financial institution up to the date of institution of the suit;
(d) 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) The plaintiff shall be given an opportu nity of filing a reply to the application for leave to defend, in the form of a replication.
6. The Ordinance, 2001 is a special law. Under section 4 of the Ordinance, the provisions of the Ordinance 2001 override all the other laws, which reads as under:
4. Ordinance to override other laws. --The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
7. The provisos contained in the above referred section requires strict compliance and non-compliance of the above referred section consequences rejection of plaint. The Hon'ble Supreme Court of Pakistan on the case of Apollot T extile Mills Ltd v . Sonery Bank 2012 CLD 337 held as under:
18. The Financial Institutions (Recovery of Finances) Ordinance, 2001 i.e. is a special law. It provides a special procedure for the banking suits. The provisions of the Ordinance, 2001 under section 4 thereof override all other laws. The provisions contained in the said Sections require strict compliance. Non-compliance therewith attract as above referred, consequences of rejection of leave petition along with decree etc. etc. Applying all the settled and well known principles to determine the mandatory construction of a provision of law the said provisions cannot but be held to be mandatory . This Court in the case of 'Niaz Muhammad v. Fazal Raqib'
(PLD 1974 SC 134 ) held that: "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory , with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however , a statue is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an expre ss provision that, in default of following them, the facts shall be null and void. To put it differently , if the Act is directory , its disobedience does not entail any invalidity; if the Act is manda tory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision".
8. Admittedly the application for leave to defend filed by the appellant did not fulfill the requirement of section 10(3),
(4) and (5) of the Ordinance 2001.
Considering the above provisions of the Ordinance, we are of the considered opinion that the impugned judgment and decree, passed by the trial court do not call for any interference. Resultantly the instant appeal stands dismissed.