QAISER RASHID KHAN, J.--- The appellants have assailed the judgment and decree dated 02.12.2010 of the learned Banking Court No. 1, Peshawar, whereby their application for the grant of leave to defend the suit was dismissed and the suit of the respondent-bank was decreed against them.
2. Facts leading to the present appeal are that the appellant- defendant namely Hussain Khan availed of Agricultural Finance Facility of rupees one million from Habib Bank Limited Harichand Branch Charsadda (hereinafter referred to as the bank) and as a security, he executed an Agricultural/Production/ Development Finance Agreement in favour of the bank and as a collateral security, mortgaged his agricultural property with the bank vide Pass Book No. 10161 and created a mortgage charge against the said property' with the revenue authorities.
3. On being summoned, appellant appeared before the learned Banking Court and filed an application for leave to defend the suit but the same was dismissed and the suit of the respondent-bank was decreed vide impugned judgment and decree dated 02.12.2010. Aggrieved of the said judgment and decree, the appellant has preferred the present appeal.
4. All that the learned counsel for the appellant vehemently asserts is that after availing of the agriculture finance facility from the respondent-bank way back in the year 2004 to the tune of rupees one million, he has made several deposits but the same have not been reflected in the statement of account. In this respect he refers to the deposit of Rs: 35,000/- way back on 17.12.2007 but the same does not find mention in the statement of account and more so, that the bank did not bring the true facts before the learned Banking Court at the time4of -filing of the suit as the statement of account with entries with effect from the date of availing of finance facility was not furnished along with plaint. He further contends that the statement of account has not been verified in terms of section 9 of the Financial Institutions (Recovery of Finances) ordinance, 2001 and the same per se renders it nullity in the eye of law.
5. The learned Counsel for the respondent bank on his turn supports the impugned judgment and decree on almost the same grounds as detailed therein. However, he adds that keeping in view the directions of this court dated 14.03.2017, a fresh statement of account has been prepared duly certified under the Bankers Books Evidence Act, 1891 from the date of availing of the finance facility and that further entries have already been reflected in the statement of account furnished with the plaint.
6. Arguments heard and the available record perused.
7. As the record shows it was back on 08.11.2004 when on the request of the appellant-defendant No .1 an, agricultural Finance Facility of rupees one million was sanctioned in his favour vide sanction advise dated 23.11.2004 which he duly availed of through installments. The sanction advice provides the, date of expiry as 21.112007 meaning thereby that the facility was for a term of three years. It appears that the appellants, made certain payments to the respondent-bank and simultaneously withdrew the same from the bank as well which have been duly reflected in the statement of account.
8. During the course of submissions, the learned counsel for the appellants has not as such referred to any specific entry in the statement of account which by his estimate has wrongly been entered therein or that in any manner markup has been excessively charged, Moreover, at the time of availing of the finance facility, the appellant executed various security documents in favour of the respondent-bali including the Finance Agreement and Mortgage of his property. The statement of account has been of course certified as per section 4 of the Bankers' Books Evidence Act, 1891 and has accordingly been signed by the Bank Manager as Well as the authorised officer. Needless to state that the same is not supposed to be verified as per section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 where under only the plaint is to be verified and certainly not the statement of account.
9. During the course of hearing, our attention was drawn to the three entries made in the statement of account on 10.11.2008 of Rs. 69809.00 (Mark-up), 65205.00 (Mark-up) and 3000/- (charges) which have been debited to the account of the appellant. after the expiry of finance limit i.e. 21.11.2007. When the learned counsel for the respondent-bank was specifically questioned as to how and in what manner, the respondent-bank could debit such exorbitant amounts to the account of the appellant after almost over a year of the expiry of the finance limit, the learned counsel could not give any satisfactory reply and only stated that such amounts was kept pending by the bank to be debited to the account of the appellant at the time of suit filing. We believe that the same exercise as undertaken by the respondent-bank is in total departure and deviation from the normal banking practice and procedure.
10. Since the availing of the finance facility by the appellant stands proved from the available record coupled with the execution of the Finance Agreement and mortgage of the agriculture property of the appellant namely Hussain Khan, therefore we understand that the learned banking court has not erred in decreeing the suit of the respondent-bank against the appellant. However, when it comes to the amount so decreed by the learned Banking Court, we do not find ourselves in agreement with the learned Court in view of the three entries of Rs. 69809.00, 65205.00 and 3000/- reflected in the statement of account on 10.11.2008 i.e. much after the expiry of the finance limit. The same entries being the handiwork of the bank officials are in sheer disregard to the Standard Banking Practice and Procedure and thus not sustainable. Accordingly, we partially allow this appeal and after deduction of the markup amount and charges of Rs. 1,38,014/- (Rs. 69809.00 + 65205.00 + 3000/-) as mentioned in the statement of account on 10.11.2008, we modify the decretal amount from Rs. 1138014/- to an amount of Rs. 10,00,000/-along with costs of fund and costs of the suit.