ASIM HAFEEZ, J. This Regular First Appeal is directed against judgment and decree dated 02.05.2012. Appeal under reference was earlier decided through judgment and decree dated 27.04.2016, whereby subject matter impugned judgment and decree was set aside, and suit was dismissed being instituted by incompetent person. Respondent Bank approached Hon'ble Supreme Court of Pakistan through Civil Appeal No.1565 of 2016, which appeal was allowed on 27.11.2023, judgment and decree of this Court was set aside, and matter was remanded for decision of instant appeal on merits, after affording opportunity of hearing. Parties are duly represented judgment debtor Muhammad Akram (deceased), who died during the pendency of appeal, is represented through legal heirs and they are represented through the counsel.
2. Facts, essential for adjudication of appeal at hand, are that respondent Financial Institution brought claim for recovery of Rs.616,407/- along mark-up and cost of funds from the date of default till the date of realization of decretal amount under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Claim was based on finance facility renewed/extended vide facility approval letter of 18.11.2005. Muhammad Akram, sole proprietor of Messrs Akram Corporation, submitted application seeking leave to defend the suit but upon failure of the learned counsel to appear ex-parte proceedings were conducted. Learned Judge Banking Court No.II, Multan examined grounds raised in the petition for leave to defend and observed that no substantial question of law was raised, requiring grant of leave to defend the suit. Claim of respondent bank was considered, in the light of finance and security documents, in the company of statement of accounts, and suit was decreed for Rs.616,407/- with Cost of Funds and cost of the suit. Hence, this appeal.
3. Learned counsel appearing for appellants - legal heirs of deceased Muhammad Akram, emphasized that proper opportunity was not granted to the legal heirs to contest the suit. Adds that Muhammad Akram died during pendency of the appeal and his legal heirs are entitled to contest claim by allowing unconditional leave to defend the suit and matter be remanded to Banking Court for trial. Submits finance facility obtained in the year 2003-2004 was fully adjusted, and subsequently, neither any renewal was requested and nor any finance availed. Adds that post-adjustment finance facility availed for 2003-2004 no document was executed by the deceased. Referred the case of Messrs Al-Barkat Seed Corporation and others v. Silk Bank Limited and others (2023 CLD 372) to buttress plea for grant of unconditional leave to defend.
4. Conversely, learned counsel for respondent Bank indicated request made by the deceased on 07.03.2005 for seeking renewal, upon expressing inability to pay the outstanding amounts. Adds that finance and security documents were duly executed for availing the facility, wherein funds were withdrawn through cheque drawn on the account -which manifest disbursement of funds for adjustment of overdue liability and amounts made available were utilized during the period of finance. Learned counsel referred to an entry in the statement of account to reflect withdrawal through cheque. When confronted, learned counsel submits that security by way of mortgage was created and recorded through mortgage deed and execution of MODT, wherein title deed of the mortgaged property was secured. Learned counsel submits that suit was instituted through duly authorized officers, who held power of attorneys, duly executed in their favour, and one of them had signed plaint in the capacity of Branch Manager.
5. Arguments heard. Record perused.
6. We asked learned counsel for the appellants to show any substantial question of law raised through the petition for leave to appear and defend, which requires trial through recording of evidence. Learned counsel was unsuccessful. Factum of renewal/extension of finance facility, upon request of the deceased was established. No document is indicated to show adjustment of finance facility of 2003-04 conversely respondent Bank established withdrawal of funds for adjusting overdue liabilities with funds extended through finance facility in question.
Funds were made available and withdrawn through cheque No.72861026 for Rs.599,589/- details were mentioned in paragraph 9 of the plaint but same were not explicitly rebutted in the leave application. It is established that amounts overdue were adjusted and working capital was made available for one year, at the request of predecessor of the appellants. Finance and security documents were executed and acted upon. Respondent Bank had provided statement of account for the finance facility 2003-04 and 2005-06, wherein no objection was raised with respect to any entry(ies) therein. Respondent Bank disclosed factum of suit instituted by the Customer against the Financial Institution -- in paragraph 11 of the plaint -- which fact was neither denied nor any document/order referred to dispute factum of institution of suit and effect of its dismissal.
Dismissal of suit otherwise manifest acquiescence on the part of deceased qua legitimacy of the claim. Predecessor of the appellants was an obvious beneficiary of the finance facility, extended and availed. Suit has been instituted by the authorized officers, one of the signatory was identified as Branch Manager. Statement of accounts met the requirements of law. Plea that opportunity be granted to the legal heirs of the deceased to contest is misconceived, especially in the context of absence of any substantial question of law and fact raised in the application for leave to defend the suit -- ambiguous objection raised otherwise call for no serious attention. Requirements in terms of section 10(5)(6) of Financial Institutions (Recovery of Finance) Ordinance, 2001 were not met. Judgment referred extend no benefit, and ratio therein is distinguishable.
7. In view of the aforesaid, we do not find any illegality, error or defect in the judgment and decree impugned. Appeal is devoid of merits and same is, therefore, dismissed. No order as to the cost.