Muzamil Akhtar Shabir , J. Through this appeal filed under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance"), appellant (judgment debtor) has called in question judgment & decree dated 21.09.2021 passed by Banking Court-II, Lahore whereby recovery suit filed by the respondent bank has been decreed against the appellant.
2. It is argued by learned counsel for the appellant that through the petition for leave to defend filed by the appellant, specific plea was raised that recovery suit filed by the respondent against the appellant is barred by time which requires determination by recording evidence, hence, application for leave to defend ("PLA") filed by the appellant could not have been summarily dismissed to decree the suit filed by the respondent against the appellant.
3. On the other hand, learned counsel for the respondent (decree holder bank) has defended the impugned judgment & decree by controverting arguments raised by learned counsel for the appellant and states that from the date of last payment made by the appellant, suit filed by the respondent was within time and PLA having failed to raise any substantial question of law and facts requiring recording of evidence was correctly dismissed and suit was rightly decreed by Judge Banking Court.
4. Perusal of the record shows that respo ndent bank on 05.11.2018 filed suit under Section 9 of the Ordinance for recovery of Rs.262,100.37 along with cost and cost of funds wherein it was mentioned that respondent bank after usual procedural formalities issued U.B.L. Visa Credit Card with limit of Rs.21 1,200/- to the appellant against execution of various financial documents signed by him whereas the due amount was not repaid by the appellant.
The paragraph No. 13 of plaint relating to accrual of cause of action mentions that same had arisen when U.B.L.
Visa card was issued to the appellant and on various subsequent dates when the said card was used by the appellant and he did not pay the amount as per statements of account sent to him every month and lastly on his failure to pay the amount of Rs.262,100.37 in compliance with notice issued to him, however , exact date of sending statements of accounts, recovery notice and accrual of cause of action have not been mentioned in the said paragraph. In these circumstances as the plea had been raised by the respondent that suit was barred by time, the date of accrual of cause of action was important and required to be determined for deciding the question of limitation, which in the absence of any specific reference in the plaint could only be done by recording of evidence for which purpose the application for leave to defend filed by the appellant having raised subsequent question of law and facts requiring recording of evidence merited to be allowed for enabling the parties to lead evidence on the said aspect of the matter .
5. The learned Judge Banking Court instead of granting leave to defend, while dealing with the question of limitation noted that on 20.03.2008 amount of Rs.218,704.29/- was due against the appellant and he made payment of Rs.10,721/- on 19.04.2008. Subsequently on 10.10.2010, 22.12.2012 and 29.11.2015 appellant again made payments of Rs.3,500/-, Rs.4,000/- and Rs.3,500/- respectively in cash and held that the suit filed on 03.11.2018 was within limitation having been filed within 3 years from the date of last transaction entered in the record on 29.11.2015. The appellant had denied the making of payments of said amounts through cash by stating that he had not made any payment in cash and all the payments made by him were through cheque, last of them for Rs.10,721/- made on 11.04.2008 from which date suit had not been filed within 3 years, hence according to him the suit having been filed beyond the said period of limitation merited to be dismissed as time barred.
6. As the entries of making payment through cash have been denied by the appellant by stating that the said entries of meager amounts have been made in statements of accounts by the respondent just to enhance the period of limitation without there being any actual payment against the same, therefore, the same cannot be relied upon for calculating the period of limitation, whereas the respondent has claimed the said entries to have been made against payments made by the appellant, which is a disputed question of fact requiring recording of evidence, hence, application for leave to defend merited to be allowed on that account as well and has wrongly been summarily dismissed by the Judge Banking Court. Consequently , impugne d judgment & decree, whereby application for leave to defend filed by the appellant has been summarily dismissed and suit has been decreed, is not sustainable. Hence, we are inclined to set aside the impugned judgment & decree as well as order of dismissal of application for leave to defend and by allowing the application for leave to defend, matter is remanded to the learned Banking Court to decide the same afresh after framing issues and recording evidence.
7. For what has been discussed above, this appeal is allowed in the afore-referred terms.