"The relationship of banker to customer is one of contract. It consists of genera l contract, which is basic to all transactions, together with special contracts which arise only as they are brought into being in relation to specific transactions or banking services. The essential distinction is between obligations which come into existence upon the creation of the banker -customer relationship and obligations which are subsequently assumed by specific agreement; or, from the standpoint of the customer , between services which a bank is obliged to provide if asked, and services which many bankers habitually do, but are not bound to, provide".
Libyan Arab Foreign Bank v. Bankers Trust Co [1989] QB 728 at 749E, [1989] 3 All ER 252 at 269b. Reprinted in Paget's Law of Banking, Fourteenth Edition JAWAD HASSAN, J.---Through this suit, the National Bank of Pakistan (the "Plaintiff "), a financial institution in terms of section 2(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance ") has sought recovery of Rs. 318,629,445.68/- (the "suit amount ") along with mark-up, cost of funds, charges and costs of suit from the Messrs Kohinoor Spinning Mills (the "Defendant Company ") and its directors, guarantors and mortgagors the Defendants No.2 to 9, (the "Defendants "). The Standard Chartered Bank was impleaded as a pro- forma Defendant No.10 (the " Proforma Defendant ").
A. BRIEF F ACTS OF THE SUIT
2. Succinct facts necessary for determination of this lis are that the Defendant Com pany is running its business by obtaining finance facility from the Plaintif f since 2012; initially , the Defendants mortgaged their properties with the Plaintif f as a security for repayment of said finance facilities availed by the Defen dant Company; the said finance facilities, on the request of the Defendants, had been renewed/enhanced/sanctioned from time to time; On 04.12.2015, the Board of Directors of the Defendant Company passed a resolution for making a request to the Plaintif f Bank through an application dated 04.12.2015 for sanctioning/renewing of the finance facilities i.e. Cash Finance (P) of Rs.250 million and Finance against Packing Credit ("FAPC") amounting to Rs.50 million respectively , already being availed by it, for another term; the Plaintif f acceded to this request, vide Head Office letter dated 10.03.2016 and issued sanction/renewal letter dated 16.03.2016 mentioning the date of expiry as 31.12.2016; the Defendant Company in acknowledgment of 'renewal of finance facilities' signed/tendered/ delivered and executed a short term finance agreement for Rs.250 million and a demand Promissory Note for, Rs.300 million along with certain guarantees, each amounting to Rs.360 million besides a letter of pledge, in favour of the Plaintif f, all of even date i.e. 16.03.2016; the breakup under section 9(2) of the Ordinance, in respect of the outstanding liability of the defendants as mentioned in plaint was claimed to be as Rs.265,075,538.68/- The Plaintif f Bank claimed to recover the total amount of Rs. 318,629,445.68/- in respect of finance facility due towards the Defendant Company .
B. LEAVE T O DEFEND
3. To refute the claim of the Plaintif f, the Defendants Nos.1 to 9 filed a petition (PLA No.125326 of 2017) under section 10 of the Ordinance for the grant of unconditional leave to defend ("PLA") the suit. The Defendants denied the liabilities alleged by the Plaintif f by asserting that there were a number of questions of law and facts involved which could not be resolved without recording of evidence of the Defendants; i.e. the Plaintif f had failed to produce the requisite/mandatory certified statem ent of accounts and that the signatories of the same were not even authorized to do so. Another PLA No.209698 of 2018 was filed by Defendant No.10 alleging that a settlement was arrived at between the parties in the year 2011 hence there was nothing outstanding against the defendant- company to the extent of the said Defendant.
C. SUBMISSIONS OF LEARNED COUNSEL FOR THE PLAINTIFF
4. Syed Moazzam Ali Shah, ASC counsel for the Plaintif f stated that the Defendant Company and its Directors seeking renewal of Capital Finance Facility filed a Loan Application form on 04.12.2015 along with Borrower Basic Fact Sheet ("BBFS"). The Plaintif f approved their renewal working Capital Finance on 16.03.2016 with the conditions that drawing against yarn shall not exceed 15% of the limit; stocks will be released on First-in, First-out basis; stocks will be rotated in a way that no stocks will remain in pledge for more than 180 days; healthy turnover to be maintained in the account during the currency of limit; letters of awareness shall be issued to other pledge holding banks of the Defendant Company in order to ensure that NBP's security against this facility is unassailable; import of spare parts shall be capped at PKR 15.00 Million, retirement of which shall be through Company's own sources and that overall exposure on CF (Pledge) line and its sub-limit of imports L/C(sight) will not exceed PKR 250.00 Million at any point of time. And thereafter , their terms finance agreement was executed with promissory note, bank guarantees and other instructions. Learned counsel for the Plaintif f argued that Defendant Company charged their properties and securities, and the financial facilities were duly disbursed to the Defendant Company's account, which was utilized by it. Adds that the Defendant Company defaulted in payment of finance facility/liability availed, however , though few payments were made yet not discharged the entire liabilities despite repeated requests made by the Plaintif f. Further adds that the total amount due from the Defendant Company qua amount of finance facilities, at the time of renewal; i.e. the amount of finance facility availed and repaid comes to Rs.318,629,445.68. On its default, of the Defendants, the Plaintif f has filed the suit strictly as per requirement under section 9 of the Ordinance by meeting all the procedural formalities. Lastly prays for passing of a decree in favour of the Plaintif f Bank and against the Defendant Company ordering recovery of Rs.318,629,445.68 with markup, cost of funds, charges, costs of the suit from the date of default and in case of default in fulfilling the decree by the Defendant Company to allow the Plaintif f Bank to sell the pledged properties of Defendant Company .
D. SUBMISSIONS OF LEARNED COUNSEL FOR THE DEFENDANTS NO.1 T O 9
5. Mr. Muhammad Imran Malik, ASC submitted that the total amount of finance availed by the Defendant Company is Rs.77,800,000.00 while aggregation of repaid amounts is Rs.93,0702,005.00, hence, no liability remains to be fulfilled on their part. Further contended that the Plaintif f had illegally adjusted/deducted an amount of Rs.15,272,005.00 and same be refunded by passing a decree against Plaintif f; he further denied and disputed the claim of Rs.249,325,944.87 allegedly lodged by the Plaintif f on the basis of undated, undefined and vague entry , which was mentioned only as Brought Forward; he further argued that the statement of accounts is silent qua transactional history of the disputed debit head as, neither it mentioned any date nor mode of disbursement and on this score alone, this statement of accounts is a nullity and be declared as void document; that the Plaintif f, without making disbursement of full sanctioned amount, charged and claimed markup for whole amount while the defendants were never allowed to utilize the amounts under CF(P) facility to its full extent; that the Plaintif f was illegally retaining possession of stock of cotton bales, fiber and yarn etc; that the amounts of the debit shown against the entries dated 09.05.2016 and 30.12.2016 qua "FAPC" facility are neither availed by the defendants nor their withdrawal was proved from the record; the disputed debit entries regarding "FAPC" export related facility had no corroboration with other documents as no documents regarding export contract etc. had been produced by the Plaintif f along with the plaint; the amount of Rs.3,553,907.00 added in the suit amount under the head of mark up for "FAPC" facility is unlawful; the Board resolution, sanction letter , BBFS and stock report annexed with the plaint contradicted the contents of loan application dated 04.12.2015; the alleged letter of guarantees had been engineered by the Plaintif f; the Plaintif f had no right to claim that the defendants' properties be mortgaged with it to secure the suit amount and that the properties were offered as security for Rs.67.00 million only while the bank has already received an excessive amount of Rs.93,072,005.00, thus in this view of the matter , the Plaintif f could not claim itself to be a mortgagee in respec t of subject properties; the documents relied upon by the Plaintif f were unilateral and unenforceable under the law and that the original documents which are the spirit and basis of the alleged transaction, had not been filed deliberately along with the present suit; these documents had not been executed in presence of witnesses in accordance with Article 17 of the Qanun-e-Shahadat Order , 1984; so these documents could not be considered at this stage to constitute any liability; the suit had not been filed by the authorized attorney of the Plaintif f because the power of attorney does not bear the stamp/seal of the Plaintif f; there is no privity of contract between the Plaintif f and the Defendant Company; hence the Plaintif f had no locus standi to institute this suit: the Defendant Company had already filed a suit against the Plaintif f seeking cancellation of subject finance documents, release of securities; the defendants prayed for a decision on both suits through a consolidated trial and lastly prayed for the dismissal of this suit with the direction to the Plaintif f to return the pledged stock of the Defendant Company .
E. REPL Y BY LEARNED COUNSEL FOR THE PLAINTIFF
6. Learned counsel for the Plaintif f replying to the allegations, claims and assertions of the Defendant Company submitted that the suit for recovery of Rs.318,629,445.68 as on 30.6.2017, with mark up, cost of funds, cost of suit etc, filed against the Defendant Company , the defendants and the proforma defendant through Mr. Abid Umer Farooq, Chief Manager/VP and ?'Ir. Irfan Hassan, Officer, Attorney holders, authorized through Power of Attorneys, placed on file as Annexures-B and B/1; that the Defendant Company was a private limited company and the defendants were its directors, mortgagors and guarantors. Copy of Certificate of Incorporation and Form-29 is Annexures-A and A/1; that the relationship of the Defendant Company and the defendants, as of customers started in the year-2012 when the defendants initially availed finance facilities from the Plaintif f and got mortgaged properties of the Defendant Company; the said finance facilities had been renewe d/rescheduled from time to time and lastly in the year 2016, vide loan application and Board's Resolution dated 04.12.2015; that two finance facilities, i.e., Cash Finance (P) of Rs.250 million and "FAPC" sub-limit of FBPN Rs.50 million were sanctioned/renewed, vide sanction/renewal letter dated 16.3.2016 with the expiry dated 31.12.2016; the defendants in consideration of renewal, vide letter dated 16.3.2016, executed the documents mentioned in paras 8 and 9 of the plaint; the break up under section 9(2) of Ordinance, the outstanding liability of the defendants is as under:- i. Cash Finance (Pledge) Limit Rs.250 million renewed on 16.03.2016 i) Amount of Finance Facility outstanding at the time of renewalRs.249,325,944.87 ii) Amount of Finance Facility availed Rs. 93,285,030.00 iii) Amount of Finance repaid Rs. 95,172,000.00 iv) Principal outstanding as on 30.06.17 Rs.247,438,974.87 v) Markup outstanding till 30.06.2017 Rs.17,636,563.81 Further submitted that the above facilitie s availed by the Defendant Company were in the nature of a revolving facility whereunder they could utilize amounts up to a maximum limit of the sanctioned amount; in a revolving facility once the principal outstanding amount reaches the ceiling/limit of the sanctioned amount, the borrower can make payments towards the principal outstanding amount and then utilize these amounts again and again subject to maximum ceiling/limit. ii. FAPC Finance Facility Rs.50.000 million i) Amount of Finance availed Rs.50,000,000.00 ii) Amount of Finance repaid Nil iii) Principal outstanding till 30.12.2016Rs.50,000,000.00 iv) Markup outstanding till 30.06.2017Rs.3,553,907.00
7. Learned counsel for the Plaintif f further submitted that the claim of Plaintif f is genuine, supported by the documents executed by the defendants and Statement of Accounts had been duly signed and certified by the competent persons; all the entries relating to availing of the finance facility and repayments had been duly reflected in the statement of accounts and outstanding balance had also been shown in the said statement; that no excessive amount had been paid by the defendants; regarding the entry of B/F relating to the claim of Rs.249,325,944.87 and mode of disbursement, the learned ASC elaborated that the entry of B/F in respect of Rs.249,325,944.87 relates to previous outstanding liability of the defendants, which they accepted while seeking renewal,. vide their Loan Application dated 4.12.2015, BBFS dated 28.01.2016 and Credit Request Form dated 28.01.2016; replying to the debit entries dated 02.09.2016 and 30.09.2016 of Rs.2, 800,000/- and Rs.3,150,000/-; in fact these entries relate to markup of previous quarter and same have been adjusted, therefore, these were not claimed in the statement of accounts of markup. Regarding the query that an amount of Rs. 17,635,563.81/- allegedly added under the head of markup for CF(P) is neither legal, nor justifiable and markup over markup has been charged, it is submitted by the learned ASC that this amount relates to markup payable by the defendants and, therefore, no markup over markup had been charged. He maintained that ,the assertion of the defendants that the Plaintif f did not allow them to avail full CF (P) and the Plaintif f is illegally claiming possession over pledged goods or cotton bales, fiber yarn etc., therefore, value of goods at Rs 285,615,240/41 is being claimed as set off is incorrect, as under the terms and conditions of Letter of Pledge dated 16.3.2016, the defendants enjoyed possession of goods and no question of set off arises. The Defendants are liable to adjust their liability under CF
(P) finance facility as shown in the state ment of accounts. Regarding ' disputed entries totaling Rs.50,000,000/- under , "FAPC" finance facility , it is submitted that the entries mentioned in this para pertained to the disbursement of finance facility to the defendants which they had duly availed of. Answering to allegation that an amount of Rs.
3,553,907/- under "FAPC" facility markup was neither justified, nor was legal, the learned counsel stated that this amount related to markup accrued on "FAPC" finance facility and each entry had been described. Learned counsel rebutted the claim of the defendants that the entries in the statement of accounts were exaggerated and had been manipulated by the official of the Plaintif f. With regard to the documents relied upon by the Plaintif f and entries made in the statement of accounts, Syed Moazzam Ali Shah, ASC stated that every entry was justified and corroborated by the record. All the documents attached with the plaint by the Plaintif f had been duly executed by the defendants and in their Loan Application, they had admitted their previous liability . Further submitted that all the guarantee letters had been executed and signed by the defendants/guarantors with free will and no question arose of their being void. To the query that the Plaintif f had no right to claim subject matter properties as mortgaged because the defendants had paid in excess and the suit was incompetent, the learned counsel stated that still a huge amount is outstanding against the defendants, therefore, the suit is competent. Further submitted that all the documents have been legally executed by the defendants with their free will and consent in order to avail finance facilities and were valid documents enforc eable by law; the suit had been filed by authorized persons. Lastly , it was prayed that the execution of charge and finance documents had been admitted by the defendants, but just to avoid their liability , the defendants had alleged repayment in excess, whereas, statement of accounts reflected their huge liability; the defendants had not annexed with their PLA any documents in support of their assertion of non-liability; the grounds taken by the defendants were contradictory and self-destruct ive and thus in view of the submissions/clarification made above, petition for leave to appear and defend the suit failed to raise any substantial question of law and facts, hence, the same may be dismissed with costs. Further that the suit may be decreed as prayed for in favour of the Plaintif f and against the defendants jointly and severally with costs and cost of funds till realization of the decretal amount.
8. I have heard the arguments of the learned counsel for the parties and perused the record.
F. ANAL YSIS OF THE COURT
9. Before examining the facts of the instan t suit and analyzing the legitimacy and merits of the claim and defense of the parties, it is deemed pertinent to take a precise note on the purpose and object of the "Ordinance" and the mechanism provided thereunder to settle the financial disputes between the financial institutions and customers who availed finance facilities therefrom. The Ordinance was promulgated with an aim to streamline and expedite financial disputes between a financial institution and its customers and separate independent forum of Banking Court was also established under the Ordinance to achieve the goal of speedy decisions and a mechanism was devised wherein traditional extensive course of litigation was curtailed to a composite summary procedure to make sure adjudication in expeditious manner but at the same time safeguarding and securing rights of the parties and that is why Banking Courts defined under section 2(b) and established under section 5 of the Ordinance is simultaneously vested with powers of a Civil Court under the Code of Civil Procedu re, 1908 and powers of a Court of Session under the Code of Criminal Procedure, 1898 as per section 7 of the Ordinance.
10. The perusal of record reflects that the relationship between the Plaintif f and the Defendants was of a financial institution and a customer as defined under sections 2(a) and 2(c) of the Ordinance and the course of their relationship was regulated based on the facility of finance availed by the Defendants and extended by the Plaintif f Bank and squarely comes within the purview of definition provided under section 2(d) of the Ordinance. The Defendants as such are not allowed to defend this suit unless leave to defend the same is granted to them by this Court/Banking Court. The PLA can succe ed only if substantial questions of law and fact are raised and the court is convinced that questions of law and fact cannot be decided summarily without leading detailed documentary and/or oral evidence of the parties. Therefore, to resolve the controversy completely and effectually , following points have been made for determination by this Court: - I. Whether the Plaintiff bank, through record, has established that the defendants have committed default in fulfillment of their obligation regarding the finance facility availed by them?
II. Whether there are some substantial question of law and fact in respect of which evidence of the defendants needs to be recorded?
III. Whether the refusal of leave to defend the suit amounts to violation of Article 10-A and Due process clause of the Constitution?
11. Now I proceed to discuss and decide the above points of determination respectively .
POINT NO.1 (whether default was committed or not)
12. It is for the Plaintif f Bank to establish that the defendants have committed default in fulfilment of their obligation regarding the finance facility availed by them, as envisages under section 3 of the Ordinance. Moreover , the primary ingredients to file a suit and to establish liability of the defendants are laid down under section 9 the Ordinance which read as under: - "9. Procedure of Banking Courts.- (1) Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer , may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise. ----------"
13. In order to examine whether the customer has committed default or the words used together in section 9 of the Ordinance have to be examined before any conclusion is reached and while doing so, the words mentioned under section 9 of the Ordinance have to be looked into first and then to ascertain whether they are intertwined in order to decide a banking suit. Perusal of the above referred provision highlights the significance of specific terms as the scope and mandate of the provision is directly linked to the meaning and interpretation of these terms, which includes 'default', 'fulfilment' and 'obligation' and it is imperative to have literal as well as interpretive definition of these terms in order to comprehend the true meaning, extent and scope of the above referred provision and to determine whether liability against the defendant is established in light thereof or not.
(i) DEFAULT
14. The term default is of utmost significance and therefore requires comprehensive literal interpretation to unearth its true dimensions and scope. Accordin g to Stroud's Judicial Dictionary of Words and Phrases, Eighth Edition, Volume 1 Page 71 1, term default and default in payment has been defined as under:- i. "Default" has been described as a large and loose word and in the most general sense means failing and is a relative term, like negligence, and means not doing what is reasonable under the circumstances having regard to the relations which you occupy towards the other persons interested in the transaction. ii. "Default in payment" means failure to pay at the due date.
According to Advance Law Lexicon, 4th Edition, Volume-2, Page-1307, the term default has been defined as follows:- i. Failure to perform some legal requirement or obligation; want; absence; to commit a default; defect. ii. "Default" means non-payment of any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified an non performing asset in the books of account of the secured creditor in accordance with the directions or guidelines issued by the Reserve Bank. . iii. Breach of the terms of contract, especially with regard to payment, in a credit transaction. iv. 'Default' means omission of that which a man ought to do. It is synonymous term of the term 'failure'. v. 'Default' means, default in the performance of a present or future duty , whether contractual or otherwise.
(ii) FULFILMENT
15. According to Advanced Law Lexicon 4th Edition, V olume 2, Page 1996 the term fulfillment is defined as:- "Accomplishment; performance; completion"
The term has also been defined in Black's Law Dictionary , Ninth Edition, Page-480 in the following manner:- The omission or failure to perform a legal or contractual duty; esp., the failure to pay a debt when due.
(iii) OBLIGA TION
16. Under section 2(d) of the Ordinance, the term 'obligation' includes:
(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and
(ii) any and all representations, warranti es and covenants made by or on behalf of the customer to a financial institution at any stage, including repre sentations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other amounts relating to a finance or performance of an undertaking or fulfilment of a promise; and
(iii) all duties imposed on the customer under this Ordinance; and According to Black's Law Dictionary , Ninth Edition, page 1 179, the term obligation has been defined as:- A legal or moral duty to do or not do something. The word has many wide and varied meanings. It may refer to anything that a person is bound to do or forbear from doing, whether the duty is imposed by law, contract, promise, social relations, courtesy , kindness, or morality .
As per Advanced Law Lexicon, 4th Edition, Volume 3, Page 3319-20 while referring to renowned jurist John Salmond's treatise on Jurisprudence, the term 'obligation' is defined as:- "Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman Law, differs from this in several respects. In the first place , obligations are merely one class of duties, namely , those which are the correlatives of rights in personam. An obligation is the vinculum juris, or bond of legal necessity , which binds together two or more determinate individuals . . . Secondly , the term obligation is in law the name, not merely of the duty, but also of the correlative right. It denotes the legal relation or vinculum juris in its entirety , including the right of the one party , on less than the liability of the other . Looked at from the point of view of the person entitled, an obligation is a right; looked at from 'he point of view of the person bound, it is a duty. An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right."
An act which binds a person to some performance. A binding or state of being bound in law .
(iv) OBLIGA TION AND DUTY As per Advanced Law Lexicon, 4th Edition, V olume 3, Page- 3319-20, it is defined as under:- "Duty and obligation, though the terms, in one of the sense of the latter , are often used interchangeably , are not the same thing. 'obligation', says Lord Coke, 'is a word of large extent' , although it sometimes means only duty, and always includes this meaning it often imports something more."
"Obligation" includes every duty enforceable by law .
(v) FINANCIAL OBLIGA TION: According to Advanced Law Lexicon, 4th Edition, Volume 2, Page- 1886 the term financial obligation has been defined as follows: - The phrase "Financial Obligation" is not confined in its meaning F to financial transaction merely . It includes obligations involving financial implications, recovery sought or initiated on account of goods supplied to industrial undertaking would be within the ken of the Act.
17. By examining the language and words of Section 9(1) of the Ordinance and the words used therein which have been explained above, it is unequivocal that the Plaintif f Bank filed the suit for recovery of loan, which was based on the statements of accounts attached with the plaint and duly certified under the Bankers' Books Evidence Act, 1891 and the same was not rebutted by the Defendants with cogent reasons either through oral evidence or through documentary evidence. The Defendant Company has not denied availing of finance facilities nor has denied the documentation hence admitted the availing of finance facilities and its documents. The Plaintif f Bank however alleged that the Defendants have committed default in repayment thereof. Though the term willful default is defined under section 2(g) of the Ordin ance, which means deliberate and intentional failure of the customer to repay financial assistance secured from a financial institution yet the requirement under section 9 is default simpliciter , which is not defined in the Ordinance, however , through the aid of literal interpretation referred above and analogy drawn from the definition of willful default under the Ordinance, a default means failure to fulfill the conditions of a contract to pay the loan, either whole or installments and includes an unfulfilled obligation. The existence of relationship between the parties and availing of finance facility by the Defendants from the Plaintif f Bank is well established through documentary evidence and the defendants failed to establish that they did not have committed any default in fulfillment of their financial obligation towards the Plaintif f Bank. The Plaintif f bank, as such, has established that the Defendants have committed default in fulfillment of their obligation regarding the finance facility availed by them.
POINT NO.2 (what is substantial question of law)
18. Now I advert to determine the second important point "whether there are some substantial questions of law as well as fact in respect of which evidence of the defendants needs to be recorded ?" and for this purpose whether the defendants ought to be allowed to defend the suit by accepting their PLA.
(i) Legal Pathology of Leave to Defend
19. Before dealing with the case on merits it appears appropriate to examine the nature of proceedings in suits arising under the Ordinance. The Ordina nce provides a summary procedure for disposal of suits. When a suit is filed under the Ordinance, the defendant, as provided by section 10(1) of the Ordinance, shall not appear or defend the suit unless he obtains leave from the Court for this purpose. It may also be observed that in case the defendant does not apply within the period provided for filing an application for leave to defend, the allegations in the plaint shall be deemed to have been admitted and a decree shall follow . In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall, under section 10(4) of the Ordinance, also specifically state: (a) the amount of finance availed by the defendant from the financial institution; the amounts 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 upto the date of institution of the suit; (c) the amount if any which the defendant disputes as payable to the financial institution and facts. Under section 10(8) of the Ordinance, the Court is empowered to grant the defendant leave to defend the suit, if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto it is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded. However , the Court, while granting leave, may impose such conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit of cash or furnishing of security by virtue of section 10(9) of the Ordinance.
(ii) Legal Anthropology with Historical Background of the Banking Laws
20. From the above provisions it emerges that the grant of leave to defend a suit filed under the Ordinance is not a matter of right, In order to become entitled for this benefit the Defendants will have to show some substantial questions of law or fact in respect of which evidence needs to be recorded. This necessarily implies that granting of permission to defend the suit or refusal thereof shall be dependent on the attending circumstances of each case and as such no hard and fast rule could be laid down for the purpose. However , some broad principles which could be a guide line for the Courts while considering an application for leave to defend can be and have, in fact, been laid down in judicial precedents and lied scattered therein. In this Judgment I propose to succinctly bring out those guidelines in the light of the aforementioned provisions and the judgment of the Supreme Court on the subject. Before doing so, it also seems proper that the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the history and purpose of this legislation be gone into and kept in view. The first legislation on this subject is the Banking Companies (Recovery of Loans) Ordinance (XXIII of 1978). The preamble of this Ordinance reads as under; "Whereas it is expedient to provide for a summary procedure for recovery of loans of Banking companies and for matters connected therewith or incidental thereto; And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action; Now, therefore the President is pleased to make and promulgate the following Ordinance."
21. This Ordinance was repealed and re-enacted, with certain modifications, by the Banking Companies (Recovery of Loans) Ordinance, 1979 ("Ordinance of 1979"). The further amendment in this legislation was made by the Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (Order II of 1983) which essentially was meant to create two types of Special Courts in the first place Courts which may deal with cases involving disputes of the value of less than rupees one million, and in the second category comes the High Court in exercise of original civil jurisdiction as the Special Court in respect of other cases. Section 6(1)(a) of the Banking 'Companies (Recovery of Loans) Ordinance, 1979 reads as under:- "A Special Court shall
(a) in exercise of its civil jurisdiction, have in respect of a claim file by a Banking company against a borrower or by a borrower against a Banking company to respect of, or arising out of a loan, all the powers vested in a civil Court under the Code of Civil Procedure, 1908."
22. Again section 7 provides the procedure of the Special Court and is to the effect that suits before the Special Court shall come up for regular hearing 'as expeditiously as possible and except in extraordinary circumstances and on the grounds to be recorded, a Special Court shall in all suit before it, including suits based on mortgages of all kinds on statements of accounts for recovery of money paid to or to the order of the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (the "C.P.C."). The perusal of this section further shows that apart from suits ordinarily triable under Order XXXVII, C.P.C.. viz. suits on bills of exchange, hundi and promissory notes, suits in relation to Bank loans even on mortgages of all kinds or on statements of accounts have been made triable under the procedure provided for by Order XXXVII, C.P .C.
23. Also, the Ordinance of 1979 was repealed and re-enacted by the Banking Companies (Recovery of Loans, Advances, Credits and Finances). Ordinance, 1997 ("Ordinance 1997"). Later on, both the Ordinances were repealed and reenacted by the Banking Companies (Recovery of Loans, Advanc es, Credits and Finances) Act, 1997 ("Act of 1997 "). Finally , the Act of 1997 was repealed and reenacted by the Financial Institutions (Recovery of Finances) Ordinance, 2001. Similarly , under the incumbent Ordinance, a banking suit is normally a suit on accounts which are duly ledgered and maintained compulsorily in the books of accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices. As such instead of leaving it to the option of the parties to make general assertions on accounts, the Ordinance binds both the sides to be absolutely specific on accounts. Additionally , except for the Banking Tribunals Ordinance LVIII of 1984, under which law the defendant could defend the suit as a matter of right by filing his written statement, a defendant in banking suits has never been allowed to defend the suit unless leave to defend the suit is granted to him by the Banking Court. Same procedure is prevailing since 1908 in suits filed under Order XXXVII, of the "C. P. C. " Hence, the concept of obtaining leave to defend the suit by a defendant, is not new or unusual. It is for the first time in the banking legislation of Pakistan than, under section 9(3) of the Ordinance, the financial institution and under section 10(4) of the Ordinance, the customer , have been obligated with identical statutory responsibility to clearly and particularly plead and state the finances availed by a customer , repayments made by him with the dates thereof, and amounts of finance repayable by such customer , and a customer is burdened with an additional responsibility to also specify the amounts disputed by him. No such provision existed in any previous law, or in the Banking Companies (Recovery of Loans) Ordinance XIX of 1979, or in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997.
(iii) Jurisprudence on leave to defend
24. This new and distinctive addition in the Ordinance, wherein the proceedings are of summary nature, must have been introduced especially and clearly with the view that the dispute of accounts should come before the Court straightaway through the pleadings of the parties, so that the dispute can be resolved in a summary manner without going through the lengthy procedure of evidence. It is also because of the above reason that the financial institution is obliged under section 9(2) of the Ordinance to file relevant documents and statement of account along with the plaint in support of its claim, and the customer is obliged under section 10(5) of the Ordinance to file all such documents along with his application for leave to defend, which, in his opinion, support the substantial questions of law or fact raised by him. After examining the contents of the plaint and the application for leave to defend, the discretion vests with the Banking Court to allow the defendant to defend the suit, or reject his application. The defendant, in order to succeed, shall have to show that the PLA is compliant of all the mandatory requirements of section 10 of the Ordinance; and, likewise the Plaintif f shall have to show , even if PLA is refused to the defendant, that his plaint is compliant of all the mandatory requirements of section 9 of the Ordinance, and the suit is not barred by any law. Reference may be made to "Habib Metropolitan Bank Limited v. Century 21 Textile and Sportswear (Pvt.) Limited" (2014 CLD 729 ).
25. In this connection reference may usefully be made to "Fine Textile Mills Ltd. Karachi v. Haji Omar" (PLD 1963 SC 163) in which the question of entitlement or otherwise of a defendant to obtain permiss ion to appear and defend a suit filed under order XXXVII, C.P.C. fell for consideration. Although the cited case relates to the period prior to promulgation of the Ordinance, the principles laid down therein are fully applicable to a case under this Ordinance. Having regard to the said principles and the dicta contained in "Kodak v. Alpha Film Corporation"
(1930) 2 K B 340), "Pow Szchny Bank Zwia Zkowy W. Poisce v. Paros (1932) 2 K B 353) and "Millard v.
Baddeley" (1884 W N 96), the following broad principles may be enunciated for determining the controversy regarding grant or refusal of leave to defend suits in cases under the Ordinance: -
(a) Leave shall be refused if no defence worth appreciation made out on facts or in law in the application for leave to defend,
(b) leave shall also be refused if the defence disclosed in PLA is sham or colurable or illusory/imaginary and may not give rise to triable issues.
Needless to add that in both the above events, a decree shall follow in the suit,
(c) if a defence is disclosed in PLA which may warrant putting the plaintif f to prove consideration, leave shall be granted,
(d) where the defendant discloses in his PLA a case which may constitute a plausible defence or shows that there is some substantial question of fact or law which needs to be tried or investigated into, then also the defendant shall be entitled to leave to defend.
The permission to appear and defend a suit in any of the cases falling under sub-papas. (c) and (d) above may be unconditional or subject to such conditions terms as may be imposed by the Court.
(e) If the defence set up is found to be vague or unsatisfactory or ingenuine on cursory perusal, leave may not be refused altogether , and if it be felt that there may be prima facie triable issues arising out of the defence disclosed, leave may be granted but on terms as may be considered necessary by the Court.
26. It would not be out of context to mention here that the Calcutta High Court of India in "Kiranmoyee Dassi v. J.
Chatterjee " (AIR 1949 Cal. 479), formulated five principles for grant of leave to defend and for passing the summary judgments. The said principles are reproduced hereunder for ease of reference: "(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the Plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security .
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment. and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or defence illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."
27. The aforesaid principles have been repeatedly approved of, adopted and enunciated by different Courts of India including the Supreme Court in "Mechelec Engineers and Manufacturers v. Basic Equipment Corporation"
(AIR 1977 SC 577). In the said decision, the Supreme Court India also approved of an old decision of the English Courts in "Jacobs v. Booth's Distillery Company" (1901) 85 LT 262 (HL) wherein it was held that whenever a defence raises a really triable issue, leave must be given. Subsequently , these principles have also been followed by the Hon'ble Supreme Court in "Sunil Enterprise and others v. SBI Commercial and International Company Ltd." (1998)5 SCC 354 at paragraph 4 and in "State Bank of Sourashtra v. S.A. Shipping Pvt. Ltd. and another" (2002) 4 SCC 736) at, paragraph 10.
28. In the most recent decision of the Supreme Court of India, in "IDBI Trusteeship Services Limited v. Hubtown Limited" (2017) 1 SCC 568) the entire case law pertaining to the grant of leave to defend has been reviewed and it has been held at paragraph 17 as follows: "17. Accordingly , the principles stated in para 8 of Mechelec case [Mechelec Engineers and Manufacturers v. Basic Equipment Corpn., MANU/SC/0043/1976 : (1976) 4 SCC 6871 will now stand supe rseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v.
Chamanlal Bros., MANU/SC/0376/1965 : AIR 1965 SC 1698: (1966) 68 Bom LR 36], as follows: 17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff Is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose condit ions both as to time or mode of trial, as well as payment into court or furnishing security . Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security .
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security . As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
Analysis 28(sic.) Applying the above principles to the facts of the present case, it has been found that the grievances of the defendants revolve around the `multiple allegations' and `claims' mentioned in the PLA and highlighted during course of arguments. First objection of the defendants is with respect to the incompetent institution of this suit by an unauthorized person but perusal of the record reveals that suit was filed by the Plaintif f Bank through duly authorized attorneys, as their duly signed power of attorney is available on the record and therefore it is well within the requirements encapsulated under section 9(1) of the Ordinance. So this objection of the defendants is untenable and contrary to record. Reference in this regard may be made to the Muhammad Ramzan v.
Agricultural Development Bank Of Pakistan (2004 CLD 1376 ).
29. The Defendants have also challenged the veracity of the documents produced by the Plaintif f Bank but it is just a bald allegation without any substance or proof. The defendants could not produce anything to support their stance taken in the PLA. Regarding the entries of Statement of Accounts, there is nothing untoward seen as some of the alleged disputed entries are pertained to disbursement of finance facility to the defendants. Similarly , B/F entry as per record, relates to previous outstanding liability of the defendants which they accepted while seeking renewal through Loan Application dated 04.12.2015, BBFS and Credit Request Form dated 28.01.2016.
Adjustment of markup has also been made in accordance with law and no markup over markup has been charged by the Plaintif f Bank. The defendants' saying that there is no privity between them and the Plaintif f Bank is ridiculous, if it is not so, then how an unrelated Bank/Plaintif f Bank in this case, may have borrowed such a huge amount of loan to them. Admittedly , the Defendant Company has not denied the execution of documents in favour of the Plaintif f Bank, however , have challenged their authenticity but verbally and without any documentary proof.
Application of defendants for leave to defend lacks fulfilment of mandatory requir ements. Both the Plaintif f Bank and the defendants have similar responsi bility to plead and state in unambiguous terms the finances availed by the defendants, repayments made by hem with the dates and the amounts of finance repayable by such Defendants who are also under obligation to specify the mounts disputed by them. Reliance in this regard can be placed upon the decision of hon'ble Supreme Court of Pakistan in Apollo Textile Mills Ltd. v. Soneri Bank Ltd. (PLD 2012 SC 268 ). Relevant extract is reproduced under: "14. The plaintiff institution and the defending 'customer' have identical statutory responsibility respectively under sections 9(3) and 10(4) to plead and state clearly and particularly the finances availed by a defendant, repayments made by him, the dates thereof and the amounts of finance repayable by such defendant who has also been saddled with the additional responsibility to also specify the amounts disputed by him.
A defending customer is thus obliged to put in a definite response to the banks' accounting and has under sections 10(3) and 10(4) to compulsorily plead in answer in the leave petition his accounts as well as the acts and amounts disputed by him as repayable to the plaintiff.
15. The rationale of the schematic discipline of Ordinance of 2001 is evident. A banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsorily in the books of Accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices. As such instead of leaving it to the option of the parties to make general assertions on Accounts, the Ordinance binds both the sides to be absolutely specific on accounts. The parties to a suit have been obligated equally to definitively plead and to specifically state their respective accounts.
16. To scope of the suit thus becomes well defined. The control versies are confined to the claimed and/or the disputed numbers, facts and reasons thereof Unnecessary controversial details, the evidence thereto and the time of the trial, are curtailed. The trial would remain within the laid out parametrical scope of the claimed and the disputed accounts.
17. Non impleadment under subsections (3) and (4) of section 10 and section 9(3) ibid of accounts in terms of the said provisions, entails legal consequences under subsections (1), (6) and (1 1) of section 10 of the Ordinance, 2001
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."
30. Mr. Muhammad Imran Malik, ASC for the Defendants took the stance that the PLA should be accepted and the Defendants be given a fair chance to place their defense on the table after framing of issues and recording of evidence, however , such plea is not supported by any substantial and convincing material to meet with the criteria as mentioned under section 10(9) of the Ordinance because leave to defend cannot be granted mechanically and on the basis of evasive and unsubstantiated claims, which remained unsuppo rted by documentary evidence, unless the Court is of the view that 'substantial questions of law or fact have been raised in respect of which evidence needs to be recorded' and the Court is constrained to observe that the defendants, without corroborative documentary proof to support their assertions, have failed to get through the litmus test provided under Section 10 of the Ordinance for grant of leave to defend.
POINT NO.3 (whether refusal to grant leave amounts to violation or not)
31. It is not out of place to examine another dimension of the matter , which is also unveiled for consideration and requires appropriate determination by the Court since it is linked with the stance and plea taken and advanced by the learned counsel on behalf of the defendants. The question pertains to the safeguard of 'due process' provided under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") and to ascertain whether accepting leave to defend of the defendants under the Ordinance also form part of the Constitutional guarantee of `due process' and 'fair trial' and therefore their leave to defend must be accepted on the touchstone of fundamental right. The term 'due process' of law as incorporated under Article 10-A of the Constitution along with the term 'fair trial' is expounded and summed up by the Honorable Supreme Court in "Babar Hussain Shah and another v . Mujeeb Ahmed Khan and another" (2012 SCMR 1235 ) as follows: "(1) A person shall have notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality , and
(4) That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine "due process of law" which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsica lly linked with the right to have access to justice which is fundamental right.
32. This Court in "Ibrahim Abdullah and Sons through Managing Director v. Abdul Lay and 124 others"
(2018 PLC 20) examined the concept of fair trial under Article 10-A of the Constitution and held that right of fair trial is subject to fulfilling the precondition prescribed by law for bringing up action before the Court. The Court further held that Article 10-A is to be read with Article 4 of the Constitution and if fair trial is dependent upon a pre-condition or pre-qualification, then such condition or pre-qualification must be met with before proceeding further with the matter . Similar view was also taken in "Pak Oman Investment Company Limited v. Cresox (Pvt.) Limited"
(2017 CLD 1659 ) wherein it was held that fair trial and due process is always subject to law and Article 10-A is always to be read and seen in juxtaposition of Article 4 of the Constitution. The mandatory provisions of the Ordinance, cannot be bypassed or otherwise rendered redundant or ineffective merely on the plea of fair trial and due process because if mandatory requirement of filing leave to defend is rejected or the suit is decreed in the absence of such application, the aggrieved person would be at liberty to seek redressal in accordance with available provisions of law including section 22 of the Ordinance. Likewise, in National Bank of Pakistan v. Raja Traders through Sole Proprietor (2016 CLD 1938 ) observed that fair trial does not mean a trial where neither any question of law nor a fact was established. It was further observed that Article 10-A of the Constitution also provides for determination of civil right and obligation and under the Ordinance, the defendant is also required to establish the question of fact and law for determination of civil rights and obligations, thus the same is not contrary to Article 10-A. Same view was also taken in Messrs First Dawood Investment Bank Limited through Authorized Officers Attorneys v. Mrs. Anjum Saleem (2016 CLD 920) wherein it has held that fair trial and due process is always subject to law and the Ordinance provides due process and fair trial and leave to defend cannot be automatically allowed to a defendan t on the touchstone of Article 10-A of the Constitution. With regard to fulfilling requirement of section 10 of the Ordinance, the Court in Bank Alfalah Limited v. Syed Zulfiqar Ali Rizvi (2016 CLD 618) observed that the requirement of filing an application for leave to defend under section 10 of the Ordinance does not negate or run contrary to the concept of fair trial and due proce ss as provided under Article 10- A of the Constitution. The Court also observed that Article 10-A must be read with Article 4 of the Constitution, which stipulates that no action, detrimen tal to the life, liberty , body , reputation or property of any person shall be taken except in accordance with law .
Analysis
33. It is therefore abundantly clear and evidently established that I Article 10-A of the Constitution is always to be read with Article 4 of the Constitution since different Constitutional provisions supplements each other and these are always to be read together and taken conjointly and not in isolation. When the law laid down a qualifying yardstick to secure a certain right and provide judicable conditions to meet with the requirements and devise a neutral judicial forum to entertain the pre- qualification process and regulate the same without any curtailment of V opportunity , then the party ought to meet with the conditions and requirements provided by the law and to establish his right to secure the qualifying criteria before claiming right to ultimate relief and failure on his part will disentitle him under the law .
34. It is also apparent on the record that the defendants not only availed finance facility from the plaintif f Bank rather the facility was subjected to renewal many a times. This Court in Syed Abbas Ali v. Bank of Punjab through Manager and others (2015 CLD 1409 ) recognized restructuring or renewal of loan in favor of customer by a financial institution as facility which comes within the purview of obligation as defined under section 2(e) of the Ordinance. The Court held that "by approving rescheduling /restructuring/renewal of the finance facility the bank foregoes its immediate right of recovery and enforcement of securities against the customer which is absorbed through mutual agreed interest or mark-up charges till the agreed date of liquidation. Thus, restructuring or renewal is also a facility or accommodation granted by the bank to a customer . This facility has been recognized as an "obligation " as defined in section 2(e) of the Financial Institutions (Recovery of Finances) Ordinance, 2001."
Furthermore, the performance of any undertaking and fulfilment of a promise relating to repayment of finance is also an obligation within the meaning of the Ordinance as was held in "Nib Bank Limited v. Mirza Ghulam Mujtaba" (2015 CLD 1547 ). In the said judgment it was further held that "Moreover , inter alia performance of an undertaking or fulfillment of a promise relating to repayment of finance or payment of any other amounts regarding finance is an obligation in terms of section 2[c] of F.1.0., 2001." Similarly , in "National Bank of Pakistan v. Najma Sugar Mills Limited" (2015 CLD 1990 ), the Court also recognized that performance of undertakings and promises by a customer with Financial Institutions forms part of `obligation' tinder the Ordinance.
35. A careful scanning of the record further establishes that the Defendants have failed to substantiate their stance taken in the petition for leave to defend as they did not file necessary documents which in their opinion supported the substantial questions of law and fact as required under section 10(9) of the Ordinance. Also, the Defendants did not comply with the mandatory requireme nts of 10(5) of the Ordinance, and were bound to face consequences for such non-compliance because as per section 10(6) of the Ordinance, application for the grant of leave, which does not comply with the requirements of subsections (3), (4) and (5) of section 10 of Ordinance, shall be rejected, unless the Defendants disclose any sufficient cause for their inability to comply with any such requirement. The provisions of section 10(5) of Ordinance are mandatory in nature, as the non-compliance of the said provisions of law entail the penal consequences, as provided under section 10(6) of the Ordinance. Further , execution of documents filed with plaint is not denied by the defendants in their leave and thus are not entitled for leave to defend in the instant suit. Since the Defendants have not discharged their obligations as per the agreement the present suit appears to be rightly instituted by the Plaintif f Bank. It is a trite proposition of law that where the defendant has not complied with the mandatory requirement of law, the Plaintif f is entitled to have the suit deemed in his favour as mandated under section 10(12) of the Ordinance. Further , upon examination of the documents placed on record, I am of considered view that the defence set up in defendants' application for leave to defend the instant suit is evasive, improbable and no substantial questions of law or facts raised in the leave application and as such liable to be rejected. In "Messrs Al-Madan Coal Company (Pvt.) Ltd. and others v. Regional Development Finance Corporation" (2009 CLD 645) in a similar situation, the august Supreme Court of Pakistan has upheld the decision of the court of first instance by holding that "both the learned Courts after attending to all the crucial aspects of the case, adhering to the contentions raised by the petitioners and upon examination of the documents placed on record legally came to the conclusion that the defence set up in petitioners application for leave to defend the suit was evasive, improbable and no substantial questions of law or facts were raised in the leave application and rightly rejected the same. We are not persuaded to reverse the findings of two Courts which are apt to facts of the case and law on the subject."
36. The upshot of above discussion is that the Defendants have failed to establish any ground for grant of leave to defend. Hence their PLA No.125326 of 2017 is rejected under section 10 of the Ordinance. Other PLA No.209698 of 2018 filed by proforma Defendant No.10 being redundant is also disposed of accordingly . Consequently , it is held that the Plaintif f Bank has appended with the plaint all the relevant documents as per the requirement of section 9 of the Ordinance and has fully proved its case as well as the commission of willful default by the Defendants. After having minute examination of the record; considering of all the grounds taken by the Defendants in the PLA and also appreciating the contents of plaint under section 9 of the Ordinance, application for grant of loan facility , facility offer letter , agreement for finance, dema nd promissory note, letter of authority , guarantees, statement of finance account and statement of markup account and other relevant documents, his Court forthwith proceed to pass the decree for a sum of z Rs.297,438,974.87 in favour of the Plaintif f Bank and against the Defendants Nos.1 to 9 jointly and severely , with costs of funds as contemplated under section 3 of the Ordinance in the terms mentioned supra. Decree sheet be drawn up accordingly .