C.M. No. 01 of 2022 MUZAMIL AKHTAR SHABIR, J. Through this application filed by the plaintiffs namely Mrs. Uzma Tahrim, Mrs. Ayesha Azhar Siddiqui and Mrs. Kiran Sahiba Taimur under section 11 of Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance") and other enabling provisions of law, applicants seek passing of interim decree in their favour and against the respondent/defendant No.1-bank ("Respondent Bank") to the effect that this Court may pass order directing the respondent bank to refund the surplus amount received by respondent bank from illegal adjustment of Rs.207.54 Million and uncashed DSCs having face value of Rs.216 Million available with the respondent bank. For the above said purpose they have relied upon admission made by the respondent bank in its similar replies dated 30.04.2022 addressed separately to all the three applicants in response to their letters dated 30.03.2022 attached with the plaint. The operative part of one reply is as under: "This reply has been issued in pursuance of the receipt of a letter dated 30.03.2022 received via TCS Courier No. 40606306526 on 04.04.2022, regarding the return of the Surplus Amount and Uncashed Defense Saving Certificates (DSCs). Please be informed, 108 DSCs of Rs. 1,000,000/- each were rightfully cashed by the Bank in accordance with law on commission of default by Tanveer Companies. As per the account statements, the Bank made an adjustment of Rs.
99,692,299.03, against the liabilities of the Tanveer Companies. The surplus amount lying with the Bank is Rs.69,156,251.97 while 72 DSCs of Rs.1,000,000/- each remain uncashed, that will be returned as per the due procedures. Further, it is clarified that the amounts are to be released based on the confirmation of the Bank's calculation as final.
Further, the very act of the Bank of returning the DSCs and Surplus Amount will be without prejudice to any other legal remedies available to the Bank, and you would have no claim against the Bank, whatsoever, with reference to the DSCs. The Bank has rightly and lawfully cashed the DSCs and any action taken by you against the Bank in pursuance of such encashment on any forum, will be defended by the Bank at your cost.
Keeping in view of the above, you are requested to visit the HBL RHQ 102/103 Upper Mall, Lahore, along with all the other relevant documents including Original CNIC and Request Letter for release of surplus amount/uncashed DSCs from Tanveer Companies on 09.05.2022 along with the authorized representative of the Tanveer Companies to ensure the efficacious transition. Kindly consider this letter as notice of intimation regarding the return of the subjected items and compliance of this letter will be construed as acknowledgment of the above."
2. The learned counsel for the applicants states that the respondent bank itself has acknowledged that adjustment has been made from the account of respondents Nos. 1, 2 and 3 for adjusting the accounts against liabilities of Tanveer Companies, who are defendants Nos. 2 and 3 in this case, whereas surplus amount is available with them along with uncashed DSCs and the respondent bank cannot put a condition against the applicants to receive the remaining amount in final clearance of liabilities with no claim against the respondent bank for the reason that the amount already adjusted by the respondent bank from the accounts of the applicants was not due to be paid by them on account of any liability of respondents Nos. 2 and 3, which claim has been raised against the respondent bank through the titled suit, however, in the interregnum as the respondent bank is not entitled to retain the amount of the applicants, the bank through interim decree be directed to refund the admitted amount to the applicants.
3. On the other hand, learned counsel for the respondent bank has objected to passing of such interim decree on the ground that there is stay order against applicant No.1 passed by this Court in this suit as well as in another pending Executing Petition bearing No. Ex.A. 76773 of 2017 titled as "MCB v. Tanveer Weaving (Pvt.) Ltd." directing the respondent bank not to release the access amount due towards plaintiff No.1 Mrs. Uzma Tahrim and interim decree cannot be passed in piecemeal in favour of applicants/plaintiffs Nos.2 and 3. Further states that interim decree can only be passed while granting leave to defend to the respondent bank and not prior to the same, hence, at this stage this application is premature.
4. When confronted, learned counsel for the applicants has relied upon judgment of this Court reported as "Bank of Punjab through SVP v. T&N Pakistan Pvt. Ltd." (2014 CLD 1341) wherein without granting leave to defend interim decree had been passed by this Court. At this stage learned counsel for the respondent bank states that said order was passed on some other grounds and the objections presently taken by respondent bank were not considered in the said case as the facts of the said case were different.
5. Be that as it may, the plaintiffs/applicants have filed titled suit for declaration, recovery of money and damages against respondent bank wherein reference has been made to reply dated 30.04.2022 sent by respondent bank in response to applicants request dated 30.03.2022 for return of surplus amount and uncashed DSCs wherein respondent bank has admitted that the amount of Rs.69,156,251.97 and uncashed 72 DSCs of Rs.10 Million each were available with the respondent bank which applicants may receive subject to conditions mentioned in the said reply already reproduced above, which shows that it has not been denied that afore-referred amounts are liable to be returned.
6. As regards the first objection of the respondent bank that separate interim decrees cannot be passed in favour of plaintiffs especially when there is stay order against applicant/plaintiff No.1 already passed by this Court, it is observed that the amount payable to all the three applicants have separately been determined by the respondent bank through its audited accounts and the said amounts are not interdependent on each other. This was the reason that separate letters were addressed by the respondent bank to applicants/plaintiffs, therefore, there is no substance in the objection by the respondent bank relating to impediment in passing of piecemeal decree in favour of some of the plaintiffs/applicants to the exclusion of others and this Court is well within its jurisdiction to consider the said three letters separately and pass a separate interim decree to the extent of letters issued to plaintiffs Nos. 2 and 3 applicants in which the liability of bank has been admitted and to deal with the matter of plaintiff/applicant No.1 separately as stay has been issued by this Court vide order dated 12.10.2022 passed in this case on the application of MCB Bank and another execution application mentioned above vide order dated 11.10.2022, therefore, in view of the above, objection raised by the respondent bank that separate interim decrees cannot be passed in favour of applicants is without any substance and is overruled.
7. Another objection has been raised that an interim decree can only be passed while granting leave to defend and not otherwise in terms of Section 11 of the Ordinance which is reproduced below: "11. Interim Decree---(1) If the Banking Court on consideration of affidavit under oath by the customer supported by certificate of a chartered accountant on the approved panel of auditors of the State Bank of Pakistan under section 35 of the Banking Companies Ordinance, 1962 (LVII of 1962) is of the opinion that the dispute between the parties does not extend to the whole of the claim or that part of the claim is either undisputed or is clearly due or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the Claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff.
(2) The interim decree passed under subsection (1) shall, for all purposes including appeal and execution, be deemed to be a decree passed under this Ordinance, and any amount covered thereby or recovered in execution thereof shall be adjusted at the time of the final decree: Provided that it shall be open to the Banking Court notwithstanding the pendency of any appeal, to modify, in part or in whole, or reverse, the terms of the interim decree at the time of the final disposal of the suit and pass such order as it may deem just and proper: Provided further that neither the Banking Court nor the High Court acting under subsection (3) of 'section 22 shall stay execution of an interim decree unless the judgment-debtor deposits in cash with the Banking Court the amount or amounts admitted by the judgment-debtor to be payable to the financial institution under clause (c) of subsection (4) of section 10, and furnishes security for the balance decretal amount if any, inclusive, in the case of a suit filed by a financial institution, of cost of funds determined under section 3, and other costs."
(Emphasis supplied)
8. Subsection (1) of section 11 provides the powers of the Court to pass an interim decree on admitted facts and the first proviso to section 11 provides the powers of Court to modify the said interim decree in part or whole or reverse the same. Although, subsection (1) provides that said interim decree may ordinarily be passed on the basis of admitted amount while granting leave to defend for the rest of the case, however, the words "while granting leave to defend" employed in said Section do not bar or imply that such decree cannot be passed before leave to defend is granted, especially when the admitted amount is payable by the defendant to the plaintiff regardless of the fact whether leave to defend is granted or refused. Hence, waiting for grant of leave to defendant for the purpose of passing interim decree for admitted amounts is immaterial for the reason that in any case decree to the said extent may be passed by the Court on the basis of admission of the defendant, therefore, expression "while granting leave to defend" is to be liberally interpreted instead of its strict construction and it is held that this Court can pass interim decree even prior to grant of leave to defend. For reaching the said conclusion this Court has also taken note of principle of law laid down in judgment reported as "Bank of Punjab through SVP v.
T&N Pakistan Pvt. Ltd." (2014 CLD 1341), operative part of which is reproduced as under: "5. A review of the P.L.A. 155-B shows that the amount of Rs.590,947,714 is admitted by the defendants as net amount due and payable to the plaintiff-Bank. The suit filed by the plaintiff is for Rs.1,539,878,000 under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Section 11 of the said Ordinance read with Order XII, Rule 6 of the Civil Procedure Code, 1908 empowers this court to pass an interim decree on the basis of admitted amount. In the instant case the defendants are yet to argue their PLA. Under the circumstances the amount of Rs.590,947,714 stands admitted, therefore, a preliminary decree is issued against the defendants Nos.1 to 6 jointly and severally in the amount of Rs.590,947,714. For the balance amount arguments on the PLA shall be heard on 24-3-2014."
9. In view of what has been discussed above, this application is allowed to the extent of applicant No. 2 namely Mrs. Ayesha Azhar Sidiqui and 3 namely Mrs. Kiran Sahiba Taimur and the respondent bank is directed to return the admitted amounts of Rs. 691,562,251.97 and uncashed 72 DSCs of Rs.
1,000,000/- (Rupees one million) each to the said Applicants/Plaintiffs Nos. 2 and 3 respectively and interim decree in the titled suit is passed accordingly. The application to the extent of Applicant/plaintiff No.1 relating to her claim shall be decided subsequent while deciding the matter of stay order already passed against her referred to above.
10. With this observation C.M. to the extent of applicants Nos. 2 and 3 only is allowed. Office is directed to prepare Interim Decree sheet accordingly.