SHAKIL AHMAD, J. This is a regular first appeal filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the 'FIO, 2001) to impugn judgment and decree dated 23.02.2012 passed by learned Judge Banking Court, Multan, whereby suit filed by Askari Bank Ltd. (hereinafter referred to as the 'respondent Bank') against the appellants was decreed.
2. Precise facts giving rise to the filing of instant appeal arc that respondent Bank filed suit for the recovery of Rs.15,678,749.16 against appellants under section 9 of FIO, 2001 on the ground that appellants availed of Running Finance Facility of Rs.3.000 Million and Cash Finance Facility of Rs.20.000 Million and same was sanctioned subject to mortgage of three properties and limit was to be expired on 31.05.2003, however, on the request of appellants the said facility was renewed through sanction advice dated 09.08.2003 for Rs.24.000 Million CF (pledge) and Rs.4.000 Million as RF being sub-limit of CF (pledge) on markup basis that was to be expired on 30.06.2004. In the meanwhile, appellants also requested for Running Finance Facility of Rs.2.500 Million and same was sanctioned vide advice dated 31.07.2003. The said facility was again sanctioned with the reduced limit from Rs.14.000 Million to 10.000 Million. RF limit, however, was enhanced from Rs.4.000 Million to 14.000 Million and limit that was already sanctioned in the name of Messrs Javed Corporation was discontinued and both the limits were utilized by the appellants and CF limit of Rs.10.00 Million was adjusted upon dissolution of previous partnership.
3. New partnership was executed on 10.06.2009 and at the request of new partnership firm RF for Rs.14.000 Million and CF for Rs.10.000 Million were renewed vide sanction advice dated 30.10.2009 on the basis of already mortgage properties and facilities were to be expired on 30.06.2010. Various charge documents were also executed in favour of respondent. Appellants, however, failed to get adjusted the facilities fully and an amount to the tune of Rs. 15,678,749.16 became outstanding against them on 30.06.2010.
4. Appellants having been served on 24.10.2010 joined the proceedings by moving application for leave to defend the suit on 22.11.2010 by raising therein some preliminary legal objections.
According to them, respondent Bank failed to bring the fact qua pendency of suit filed by appellants for damages, rendition of accounts, declaration, permanent and mandatory injunction and recovery of Rs.20,000,000/- on the record and certain amounts those were paid by the appellants have not been adjusted towards Loan account. By taking such a stance appellants thus admitted availing of finance facilities. Learned Judge Banking Court proceeded to dismiss the application for leave to defend and in consequence whereof suit was decreed as prayed for, hence this appeal.
5. Learned counsel for appellants argued that despite raising of substantial question of facts and law in the application filed by appellants seeking leave to defend learned Judge Banking Court wrongly proceeded to dismiss the same in perfunctory Manner. It has further been argued that although appellants availed the facilities, however, no amount was ever disbursed to appellants and owing to that reason entire business of appellants collapsed. Learned counsel further submitted that statement of account tendered by respondent was in clear violation of provisions of section 4 of Bankers Book of Evidence Act, 1891, therefore, respondent could not fulfill the mandatory requirements of section 9(3) of FIO, 2001, hence, in such event appellants were entitled to grant of leave to defend the suit.
6. As against that, learned counsel for respondent Bank argued that appellants did not deny the availing of impugned finance facilities. It was argued that no discrepancy whatsoever could have been pointed out in the statement of account submitted by the respondent Bank. Learned counsel went on arguing that mere pendency of suit for damages/renditions of account creates no bar for the filing of the suit for the recovery of outstanding amounts against the appellants. Lastly, it was argued that appellants failed to comply with the mandatory provisions of section 10 of FIO, 2001. It was therefore concluded that learned trial court rightly rejected the petition and decreed the suit.
7. Arguments heard. Record perused.
8. From the bare perusal of application for leave to defend filed by appellants under section 10 of FIO, 2001, it transpires that they have not disputed the fact qua availing of Cash Finance and Running Finance facilities. They have also admitted the guarantees so offered along with hypothecation of stock like cotton bales/cotton seed/oil and oil cake. It was, however, the stance of appellants that amounts paid by them towards adjustment of Cash Finance and Running Finance had not been properly accounted for and in fact credit limits were adjusted. Stance taken by appellants in paragraph No.7 under the head of "Points for consideration of leave application" reads; "That amounts paid towards adjustment of Cash finance and Running finance facilities were not properly accounted for as it was in lacks (sic) of rupees."
These assertions, however, could not be substantiated through any tangible material/evidence and even neither details regarding amount of finance availed by the appellants nor details of any amount adjusted was tabulated by specifically mentioning the dates of payments were hinted in the application. Even no specific amount that could have been counted as disputed was mentioned in the petition.
9. If is by now a settled principle of law that when application for leave to defend the suit filed by the petitioner did not fulfill the dictates of section 10(3)(4) and (5) of FIO, 2001, such petition was liable to be rejected as per the provisions so contemplated under section 10(6) of FIO, 2001 and in consequence whereof, allegation of facts so contained in the plaint were deemed to have been admitted as per the provisions of section 10(1) of FIO, 2001. Reliance in this regard may safely be placed on the case reported as "Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd" (PLD 20212 SC 268). Learned Judge Banking Court thus rightly observed that appellants failed to raise any substantial question of law and fact besides non-compliance of the mandatory provisions of section 10(3)(4) and (5) of FIO, 2001. Learned counsel for appellants remained unable to point out even a single instance of any irregularity in the impugned judgment. Nothing plausible could have been hinted by learned counsel for appellants to convince us to take any exception to the impugned judgment which has been validly passed by learned Judge Banking Court after going through the whole material available on the record.
10. It would also not be out of place to mention here that during the pendency of instant appeal, appellants moved C.M No.890-C of 2017 for issuance of direction to respondent Bank for return of the mortgage documents on account of the fact that all amounts have been paid to respondent Bank showing satisfaction of the decree so assailed through instant appeal. Where appellant themselves satisfied the decree by paying remaining amount apart from the appropriation of amounts of the proceeds of auction proceedings carried out by respondent Bark in terms of section 19 of FIO, 2001, they would deem to have accepted the decree so passed against them.
11. The upshot of above discussion is that appeal in hand has no merits and is dismissed accordingly. No order as to costs.