ASIM HAFEEZ, J.---This appeal, under section 22 of Ordinance Financial Institutions (Recovery of Finances)
Ordinance 2001, (the Ordinance ), arises out of judgment and decree dated 19.01.2017, by learned Single Judge in Chambers, whereby recovery suit of the respondent No.1, Financial Institution, under section 9 of the Ordinance, was decreed for Rs.140,304,744.64/- along with Cost of funds in terms of section 3 of the Ordinance and costs of the suit.
2. Briefly the facts, necessary for adjudication of instant appeal, are that appellants requested for grant of finance facilities. In terms of facility offer letter of 28.04.2010, Cash Finance facility (CF-pledge) for Rs. 120.000 Million, Running Finance (RF) facility for Rs., 50.000 Million and FADD/IBP facility for Rs.10.000 Million were sanctioned, terms and conditions whereof were accepted by the appellants. Appellants duly executed documents, both finance and security , including personal guarantees, whereupon finance facility was disbursed/allowed to be utilized accordingly . It is the case of the respond ent No.1 that finance facilities were scheduled to expire on 31.01.201 1, whereafter Finance facilities remained active and usable within the sanctioned limits - in wake of temporary extensions allowed, on the written request of the appellants. Facilities were extend ed -- on monthly basis and last extension was allowed and acknowledged through execution of supplemental finan ce agreement dated 29.07.201 1 -- in continuation of terms and conditions contained in facility letter dated 28.04.2010 and Finance Agreements executed by the appellants. Respondent No.1 filed recovery suit on 26.10.2015, alleging default on the part of appellants in performance of contractual obligations, claiming outstanding payable of Rs.140,304,744.64/-.
Appellants filed application for seeking leave to defend, primarily objecting to the claim of mark-up for the period during which the facility was extended temporarily , on monthly basis. And the appellants objected to certain unauthorized withdrawals -- debited from the current account of the appellants. Upon hearing the parties, learned single judge in chambers, exercising jurisdiction under the Ordinance, declined leave to defend, in the wake of failure of the appellants to raise substantial questions of law and facts, and decreed the suit for Rs.140,304,744.64/-, with Cost of Funds and costs of suit. Hence this appeal.
3. Learned counsel for the appellants contends that mark-up could not be claimed or charged in the wake of extensions allowed, wherein only time for payment was extended. Adds that as per the terms and conditions of supplemental finance agreements, no claim of mark-up for said period could be raised, let above decreed. The submissions, when examined in the context of the terms of supplemental finance agreements, read with terms of facility letter dated 28.04.2010, appears to be misconceived and contrary to the representations/promises made by the appellants. It is evident that temporary extensions were allowed on the request of the appellants in terms of letter dated 26.01.201 1. Thereafter , acknowledgments were executed by the appellants, by way of Temporary extension approvals, before execution of each supplemental Finance Agreement. The scope, extent and enforceability of terms of the supplemental finance agreements have had to be read and construed in the context of terms and conditions agreed thereunder , which conditions are reproduced hereunder , for ease of reference:- "1. The Bank has, specifically on the request of the Customer , approved an extension in the Availability period of the Sale Price under the Agreement/Agreements up to 28.02.201 1. Through its Temporary Extension Approval dated 27.01.201 1.
2. Wherever in the Agreement/ Agreemen ts the availability period is mentioned shall be deemed as the amended period till 28.02.201 1.
3. All the other terms and conditions of the agreement shall remain the same."
4. It is clear that Temporary extensions were governed and regulated in accordance with the conditions of facility offer letter dated 28.04.2010 and terms of finance agreements, executed by the appellants. It is not the case of the appellants that finance facilities extended, utilized and payable, were not opera tional during the extensions -- which facilities for all intent and purposes were available and usable, provided unutilized funds are available, within the sanctioned limits in terms of finance facilities. Appellants have benefitted from the financial accommodation extended and now same cannot deny or avoid obligations incurred thereunder .
5. Another submission is regarding unauthorized debits of amounts from the current/running account. It is contended that a sum of Rs.2,000,000/ - and Rs.3,050,000/- were illegally debited without any explanation or corresponding adjustments in the finance/loan account. The submission is erroneous. It appears that on 12.11.2009 and on 13.11.2009 aforesaid sums were debited for the purposes of issuance of pay-orders. It is not denied in the, application for leave to defend that appellants were not beneficiaries of such withdrawals -- no specific objection was taken with respect to such pay-orders. There was nothing on record that any objection was raised by the appellants to such withdrawals at all material times. The claim subject matter of suit was bases on facility letter of 28.04.2010 and agreements executed thereunder , including supp lemental thereto, however , the debited amounts pertained to year 2009. The objection is an afterthought and same is repelled. In view of the aforesaid, we are convinced that no substantial question of law and fact were raised and order of refusal of application seeking leave to defend is lawful and calls for no interference. We concur with the observations of learned single judge in chambers that claim of the respondent No.1 is in accord with the documents sued and relied upon. Consequently , we hold that judgment and decree is sustainable in law .
6. In view of above, instant appeal is without any merit, and same is, therefore, dismissed. No order at to costs.