QAISER RASHID KHAN, C.J. Through the appeal in hand, the appellant-bank has expressed its grievance against the judgment and order dated 11.09.2021 passed by the learned Banking Court-I, Peshawar, whereby the application of the appellant/bank for revival of its recovery suit was dismissed.
2. All that the learned counsel for the appellant/bank contends is that the respondent has not paid the agreed/settled amount to the bank within the stipulated period and as per clause (e) of the Settlement Deed dated 12.03.2004, the appellant/bank had rightly filed application for revival of the original suit and that too, in the light of the observations dated 11.02.2019 of the august apex Court rendered in C.Ps. Nos. 611 and 615 of 2018 but the learned Judge, Banking Court has wrongly dismissed the same through the impugned judgment and order.
3. Arguments heard and the available record perused.
4. Admittedly, the recovery suit of the appellant/bank was decreed against the respondent with the consent of both the parties on 31.08.2004, as per the settlement deed dated 12.03.2004 under Circular No.29 issued by the State Bank of Pakistan. As per the settlement deed, the liability of the respondent was fixed as Rs.54,13,000/- as against the suit amount of Rs.1,07,84,269/-, out of which, the respondent paid a sum of Rs.5,41,300/- as down payment while the remaining amount was to be paid within three years in 12 quarterly installments. The execution proceedings were accordingly set in motion within the meaning of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The same were, however, adjourned sine die with the directions to the appellant/bank that in case of default in payment by the respondent, the appellant/bank would be entitled to ask for revival of the execution proceedings. The respondent did not pay the package amount as per the settlement deed and consequently, the execution proceedings were restored on the request of the appellant/bank. During the execution proceedings, the respondent paid the entire settled amount to the appellant/bank and filed an application for redemption of the mortgaged properties.
Simultaneously, the appellant/bank filed an application for revival of the original suit, which was dismissed by the learned Judge, Banking Court-I, Peshawar through the impugned judgment and order.
5. At this stage, it would be more opt to reproduce clauses (d) and (e) of the Settlement Deed dated 12.03.2004, which read as follows:-
(d) A recovery suit for the amount of Rs. 10.784 million has already been filed in the Banking Court- I, Peshawar. The recovery suit shall stand adjourned sine die till the payment of entire package amount.
(e) In case the company commits a default in payment of any one installment, the Bank shall have the right to revive the recovery suit pending in the Banking Court-I, Peshawar.
6. In view of the aforesaid clauses of the settlement deed, the appellant/bank was supposed to ask for the sine die adjournment of the recovery suit till the payment of entire package amount but instead both the parties made a request for a consent decree before the learned Judge, Banking Court-I, Peshawar, which was accordingly passed on 31.08.2004. During the execution proceedings, though the respondent had made a default in the payment of the settled amount but finally paid the same and the execution petition was accordingly consigned to the record room.
7. The record suggests that the appellant/bank has itself not performed its legal obligation as per the settlement deed during the proceedings of the recovery suit before the learned Judge, Banking Court-I, Peshawar as neither the appellant/bank made a request for sine die adjournment of the suit at the relevant time nor filed a fresh suit on account of default in payment of the installments of the agreed amount by the respondent. Rather the appellant/bank happily received the settled amount during the execution proceedings.
8. In view of the foregoing discussion, the learned court below has rightly turned down the appellant's application for revival of the original suit as the executing court cannot modify the decree and go beyond it as held by the august apex Court in a case reported as 2015 SCMR 823 (Ch. Ahmed Nawaz v. Province of Punjab through Land Acquisition Collector, Jhelum and others).
9. So far as the contention of the learned counsel for the appellant/bank regarding filing of subject application on the basis of the observations recorded by the august apex Court in its judgment dated 11.02.2019 is concerned, suffice it to say that the learned counsel for the appellant/bank has misconceived the situation, as we have repeatedly gone through the ibid judgment along with the learned counsel for the appellant but have found no such permission in this regard.
10. Such being the position, we understand that the learned Banking Court, Peshawar has duly attended to the controversy, so involved in the matter and has rightly dismissed the application of the appellant/bank for revival of the original suit through the impugned findings. Such findings do not suffer from any illegality, misreading or non-reading of record, so as to in turn call for the indulgence of this court through the present appeal.
11. Resultantly, this appeal being without any substance stands dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.