RASAAL HASAN SYED, J. This appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance") is directed against the judgment and decree dated 05.6.2015 passed by a learned Single Judge-in-Chambers of this Court as Banking Judge.
2. The appellants, namely, Mian Sadiq Hussain and Mian Fazal Hussain instituted a suit against respondent bank seeking a declaration and also damages and recovery of the suit amount. Case of the appellants as given in the plaint was that their fixed deposit receipts mentioned in its paragraph No.4 were kept with the bank out of which four fixed deposit receipts at serial Nos. v, vi, vii and viii were encashed by the appellants, however, the other four receipts mentioned at serial Nos. i, ii, iii and iv of paragraph No. 4 of the plaint were encashed by die bank and the proceeds were applied towards adjustment of five facilities obtained by appellant No.1 and/or his sons Mian Abid Hussain and Mian Shahid Hussain. It was the contention in the suit that the said receipts were not under the bank's lien which as such had no right to encash and adjust them to settle the liabilities of appellant No.1 and his two sons.
3. The bank filed its PLA in which stance taken was that the receipts as mentioned at serial Nos. i, ii, iii and iv of paragraph No.4 of the plaint were also under the bank's lien which had rightly exercised its right of lien by their encashment and to adjust outstanding liabilities of appellant No.1 and his two sons. Reference was specifically made to letters of lien annexed with the plaint each signed by appellant No.1 Mian Sadiq Hussain in whose schedule certain fixed deposit receipts were mentioned that as per bank's stance were rolled over from time to time and finally identified by the receipts mentioned at serial Nos. i, ii, iii and iv in paragraph No.4 of the plaint with particulars of the rolled over receipts recorded in the PLA. Leave was granted vide order dated 31.1.2002 and after trial the suit was dismissed through the impugned judgment and decree.
4. Heard. Record perused.
5. The following issues were framed from the divergent pleadings vide order dated 19.2.2002: ISSUES
1. Whether the suit of the plaintiffs is not maintainable in its present form? OPD
2. Whether the plaintiffs have no cause of action against the defendants, and the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD
3. Whether the suit is liable to be dismissed on account of misrepresentations and misstatements of facts by the plaintiff and for making false and unwarranted claims? OPD
4. Whether the plaintiff No.1 and his family members availed financial facilities from the defendants against Hen on FDRs? OPD
5. Whether the FDRS mentioned in the letters of lien at pages 80, 115 and 147 of the written statement can be treated to be the same FDRs Nos.2573, 2578, 2070 and 2071? OPD
6. Whether the encashment of four FDRs Nos.2573, 2578, 2070 and 2071 by the defendants and their adjustment against the finance facilities mentioned in paras (i) to (v) of substantial questions of facts of the written statement are illegal and unlawful? OPP
7. Whether the plaintiffs have not approached this Hon'ble Court with clean hands if so its effect?
OPD.
8. Whether the four FDRs Nos. 2573, 2578, 2070 and 2071 are under lien in respect of any finance facility as have been mentioned in paras (i) to (v) of substantial questions of facts of the written statement? OPD
9. Whether the four (4) FDRs bearing Nos. 2573, 2758, 2070 and 2071 were free from any encumbrance or lien/charge from the defendants and the defendants are liable to return the aforesaid FDRs and/or pay to plaintiffs the sum of US $ 528,784 as principal amount for FDR Nos.2573 and 2578 and US $ 137, 481 as interest on these FDRs up to 15-7-2001 along with interest thereon till the realization of the amount and the sum of Pound Starting 251,012 as principal amount for FDR Nos.2070 and 2071 and Pound Starting 65,260 as interest on these FDRs up to 15-7-2001 along with interest thereon till the realization of the amount? OPP
10. What are the true and correct accounts of the finance fealties mentioned in paras (i) to (v) of substantial question of facts of the written statement and the amount, If any, which can be adjusted from the FDRs bearing Nos. 2573, 2758, 2070 and 2071? OPD
11. Whether the plaintiffs are entitled to recover a sum of Rs.50.000(M) as damages from the defendants on account of losses due to unlawful encashment withholding of FDRs? OPP
12. Whether the plaintiffs are entitled to the relief/decree as prayed for in the suit? OP?
13. Relief.
6. Onus to prove issues Nos. 6, 9, 11 and 12 was on the appellants which were necessary to obtain the claimed decree. To shoulder the burden of their entire case only one witness was produced, namely, Mian Sadiq Hussain, appellant No.1 as PW1 whereas appellant No.2 Mian Sadiq Hussain did not appear as witness at all. The suit was earlier filed by the appellants in the civil court at Gujranwala on 16.11.1999 for return of the deposit receipts stated to be kept as "amanat" by the bank wherein vide order dated 26.6.2001 the plaint was returned for lack of jurisdiction thereafter the present suit was filed in the banking jurisdiction.
7. In the entire plaint the case was presented jointly on behalf of the two appellants, however, stance qua appellant No. 2 was specific to the effect that he neither signed any document nor was beneficiary of any loans from the bank yet the bank made the encashment. For proving this it was necessary for appellant No. 2 to appear in the witness box yet he kept away from the proceedings and did not appear as a witness that entailed strong adverse inference of withholding best evidence to such extent. PW1 tendered his affidavit examination-in-chief and produced documents Ex.PW-1/1 to Ex.PW-119 and also produced photocopy of six deposit receipts Mark-PW-1/A and Mark- PW-1/B. He was subjected to extensive cross-examination by the other side during which he was also confronted with various documents. The said appellant did not denied having availed the finance facilities from the bank in his own name as well as by his sons. He was unable to specifically recall the details of the facilities, nor specifically, deny the security documents which included letters of liens well as personal guarantees but made a vague statement of filling blank documents. It had been alleged that the disputed deposit receipts were held as "amanat" by the bank which were alleged to be wrongly encashed as the bank did not have the authority to do so. It was also at the same time implied that the bank adjusted more than it could qua such facilities. It was also stated that in any eventuality appellant No.2 had neither any finance facility extended by the bank nor had applied for any loan and that to his extent the bank had no justification at all yet there was no explanation for why appellant No. 2 delivered the documents as "amanat" or for letting appellant No. 1 sign letters of lien if he did not intend to encumber them who opted not to appear as witness at all and testimony of appellant No.1 to such extent was mere hearsay. The defence as such was vague, relative and wavering between no liability and dispute as to quantum of bank's recovery, as far as appellant No.1 was concerned whereas in case of appellant No. 2 was of denial of relationship of Customer altogether. The appellant No.2 having not opted to support his case on oath by appearing as a witness, adverse presumption would obviously be against him. In the entire evidence of appellants, no plausible or cogent explanation could be given as to what occasioned such deposit receipts to be placed with the bank and what, in specific was the "amanat" or entrustment which was being referred to that necessitated this and which could prevent the bank from adjusting the amounts to settle the outstanding liability so as to establish any foundational breach of trust, any contract or specifically unjustified encashment as was claimed.
8. The bank produced its officials as DW1 to DW4 including the manager and other related officials who got their statements recorded in favor of the version of the bank and also produced documents Ex-DW-1/1 to Ex-DW-1/48 maintained qua the finances, the deposit receipts as well as the security documents that justified the stance of the bank qua encashment. The learned Single Judge-in-Chambers after recording detailed and pointed discussion of the material evidence recorded his issue-wise findings and concluded that the appellants miserably failed to prove their case and proceeded to dismiss the suit. On due scrutiny of evidence the conclusions made and recorded in the impugned judgment could not be shown to be based on any misreading or non- reading of evidence nor any legal infirmity or jurisdictional defect could be pointed out therein. The appeal as a result fails and is accordingly dismissed.