QAISER RASHID KHAN, J.---Through this common judgment, we intend to dispose of the present appeal as well as connected F.A.B. No. 38-P/2015 titled "Messrs Vision 2000 + Pharmaceuticals through its Managing Partner , Arshad Plaza, Khyber Super Market, Peshawar v. Messrs Habib Bank Limited and others " FAB No.40-P/2015 titled "Messrs Habib Bank Limited v. Messrs Vision 2000 + Pharmaceuticals and others" and F.A.B.
No.41-P/2015 titled "Messrs Habib Bank Limited v. Messrs Vision 2000 + Pharmaceuticals and others ", as both the parties have expressed their respective grievance against the judgment and decree dated 5.9.2015 of the learned Judge Banking Court-I, Peshawar .
2. Both the learned counsel for the parties elaborately argued the appeals before us.
3. Arguments heard and the available record perused.
4. As the record unfolds, it was the defendant-firm who had applied to the plain tiff-bank for the grant of certain 'Running Finance Facility' in the year 2001, which was subsequently , renewed and enhanced followed by the request of the appellants for the grant of 'Cash Finance Facility', which too, was allowed and were accordingly , enhanced from time to time till the year 2009. It is apparent from the record that since the relations between the parties did not work well, therefore, the plaintif f-bank filed a recovery suit against the defendant firm for a sum of Rs.1,30,49,000/- with costs of the suit and in the meanwhile, the defendant-firm also filed a suit for declaration- cum-rendition of accounts, etc against the plaintif f-bank.
5. Both the parties filed their respective applications for leave to defend the suits in their capacity as defendants.
The learned Judge Banking Court, Pesha war consolidated both the suits, framed consolidated issues and recorded evidence of the parties. The record shows that on behalf of the plaintif f-bank, Mr. Abdul Waheed, Credit Officer, HBL, Nouthia Branch, Peshawar appeared before the court as PW-1, who recorded his examination-in-chief and while he was being cross examined by the defendants, somehow his cross-examination discontinued and in the meantime, PW-2 Mir Afzal Khan, CG-II, HBL appeared before the court and recorded his statement. He was duly cross-examined by the defendants. We wonder as to why the cross-examination of the PW-1 namely Mr. Abdul Waheed, Credit Officer, HBL, Nouthia Branch, Peshawar was left half way. It was not only the fault on the part of the plaintif f-bank, not to have produced the same very official of the bank to be cross-examined by the defendants but also the laxity on behalf of the defendants as well because they themselves deemed it fit to cross-examine PW- 2 instead of making any request to the learned court for affording them an opportunity to conclude the cross- examination of PW -1.
6. As against that, the defendants produced only a single witness namely Mr. Tamseel Rashid in support of their respective pleadings. After the evidence of the parties was concluded but keeping in view the Statement of Account of the defendant-firm, the learned Judge Banking Court, Peshawar felt the need for the appointment of an amicus curiae to determine the controversy viz. the mark-up amount so levied and also the allegations of the defendants in respect of charging of exorbitant mark-up in the Statement of Account of the defendant-firm. Mr. Wisal Muhammad Khan, AVP, was accordingly , appointed as amicus curiae in the matter , who submitted his report, which was objected to by the plaintif f-bank whereafter he appeared before the learned trial. court, recorded his statement and exhibited his report as Ex.CW -1/I and was cross-examined by the plaintif f-bank.
7. We understand that the report of amicus curiae is sketchy and is not upto the mark so far as the controversy arising out of the mark-up levied in the Statement of Account is concerned. Durin g the course of arguments, the learned counsel for the defendants-firm led us to certain entries of the Statement of Account of the defendant-firm and according to him, charging of such mark-up is not in accordance with the Standing Banking Practice and Procedure as well as the State Bank of Pakistan Regulations.
8. Such being the position, we believe that without the appointment of a compete nt and professional Banker , well conversant with the banking practice and procedure and the mode of charging of mark-up in accordance with the terms and conditions of the Sanction Advice/ Advices within the meaning of subsection (8) of section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the controversy between the parties cannot be resolved merely on the basis of the evide nce, so recorded before the learned Banking court. Accordingly , with the concurrence of the learned counsel for the parties, we hereby appoint Mr. Sharif Gul Bangash, Ex. Vice President, National Bank of Pakistan, as an amicus curiae in the matter , who is in turn directed to go through the entire record of the bank right from the availment of the 'Running Finance Facility' by the defendant-firm, the subsequent renewals and enhancement as well as the availment of the 'Cash Finance Facility' and its renewal and enhancement and also the mark-up levied on the account of the defendant-fi rm in due course of time and thereafter , determine the ultimate amount payable by the defendant-firm to the plaintif f-bank. The remuneration of the amicus curiae shall be determined by the learned Banking Judge payable by both the parties in equal proportion.
9. Accordingly , we allow the appeals, set aside the impugned judgment and decree dated 5.9.2015 and remand the case to the learned Judge Banking Court-I, Peshawar with the directions to afford an opportunity to the defendant- firm to cross-examine PW-1, as his cross-examination was not concluded before the learned trial court in the earlier round. After doing such exercise, we direct the learned Judge, Banking Court, Peshawar to decide the matter afresh in the light of evidence so recorded and the report of the fresh ly appointed amicus curiae, in accordance with law after af fording an opportunity to the learned counsel for the parties to argue the matter afresh.
Keeping in view the fact that it is an old matter of the year 2010, we hereby direct the learned trial court to undertake the entire exercise positively within two months from the date of receipt of the judgment of this court. The learned counsel for the parties are directed to appear before the learned Banking Court on 21st December , 2019.
The , record be sent forthwith to the learned trial court.