1. ' This application has been preferred under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 seeking unconditional leave to defend the suit. It is contended that the various facilities mentioned in the plaint were sanctioned during the years 1985 and 1986 which were repayable on the dates specified in the sanction letters/financing agreements. The last of such facilities was granted through agreement dated 22-11-1986 in the sum of Rs,2 million and purchase price of the stocks was agreed at Rs,2,400,000. Although the period of finance is not mentioned in the agreement dated 22-11-1986, the same cannot be stretched beyond a period of 365 days from the date of agreement. It is contended by Mr. Kazmi that the period for filing suit for recovery of money is 3 years and even in relation to the facility last availed, such period had expired in the year 1990. The present suit, however, was filed on 13-12-1997 and was hopelessly time-barred. The learned counsel submits that notwithstanding the provision contained in section 12 of the Banking Tribunals Ordinance, 1984, the present suit having been filed after repeal thereof is barred by the limitation now attracted by virtue of section 22(2) of Act XV of 1997. It is next contended by Mr. Kazmi that the statement of account filed along with the plaint is not verified on oath in terms of section 9(1) of Act XV of 1997 and the present proceedings, therefore, are not maintainable. It is lastly contended by Mr. Kazmi that the plaintiff has charged mark-up on mark-up, details whereof are mentioned in para. 4 of the affidavit-in-rejoinder and the defendant, therefore, is entitled to grant of unconditional leave.
2. ' Mr. A.I. Chundrigar, in reply, submits that by virtue of section 12 of the Banking Tribunals Ordinance, 1984, the provisions of the Limitation Act were made inapplicable to proceedings under the said Ordinance. It is urged that all the finances granted to the defendant were based on mark-up and claim for recovery thereof could lawfully be initiated under the Banking Tribunals Ordinance, 1984 at any time. It is further submitted by Mr. Chundrigar that after repeal of the Banking Tribunals Ordinance, the present proceedings for recovery of mark-up based facility are regulated by the provisions of Act XV of 1997 and section 22 thereof gives a fresh cause of action to the Banking Companies or the customers/borrowers for filing proceedings thereunder.
3. ' It is urged by Mr. Chundrigar that the right to sue for recovery of the claim-amount had not extinguished on the date of promulgation of Act XV of 1997. Therefore, the plaintiff can take advantage of the proviso to section 22(2) of 1997 Act and file proceedings within three (3) years from commencement of the Act. It is next urged by Mr. Chundrigar that the statement of account filed with the plaint is duly certified and it is not necessary to verify the contents thereof on oath.
4. Finally, it is urged that the plaintiff has not charged any mark-up on mark-up which in any event, can be recalculated and the error therein, if any, be rectified without going into evidence. For such reason the application is opposed by the learned counsel for plaintiff.
5. ' The provision contained in section 22(2) and the proviso thereunder, being relevant, are reproduced hereunder:- "22. Application of the Limitation Act, 1908, Act IX of 1908.---(1)...
(2) The provisions of the Limitation Act, 1908 (Act IX of 1908), shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Act: ' Provided that in relation to past transactions a fresh cause of action will be deemed to arise, for purposes of limitation only, on the date on which this Act comes into force."
6. As regards question of limitation, the finances availed by the defendant were evidently, based on mark-up and suit for recovery of such finances could be filed by the plaintiff under the Banking Tribunals Ordinance, 1984 without any constraint of time. The terminus quo for filing recovery proceedings is prescribed under the Limitation Act which was specifically made inapplicable to the mark-up based transactions. Consequently, in my view, the right to sue for recovery of present claim did subsist till repeal of the Banking Tribunals Ordinance, 1984 on 2nd June, 1997. Since such right was in existence and enforceable till promulgation of Act XV of 1997, the plaintiff is entitled to benefit of the proviso to section 22(2) of the said Act and fresh cause of action is to be deemed to have accrued to the plaintiff for the purpose of limitation. Such intention of the legislature is quite manifest from the above-referred provision of Act XV of 1997 and the plaintiff cannot be denied the benefit thereof. The present proceedings, therefore, are within limitation and the suit cannot be dismissed on such ground.
7. ' As regards the objections about non-verification of the statement of account on oath, the provision contained in section 9(1) being relevant is reproduced hereunder for the sake of convenience:-- "9. Procedure of Banking Courts.--(1) Where a borrower or a customer of a banking company commits a default .In fulfilling any obligation with regard to any loan or finance the banking company or, as the case may be, the borrower or customer, may institute a suit in the Banking Court by presenting a plaint duly supported by a statement of account which shall be verified on oath in the case of a Banking Company by the Branch Manager or such other officer as the Board of Directors of a banking company may authorise in this behalf. Copies of the plaint shall also be filed along therewith in sufficient numbers so that there is one copy for each defendant and one extra copy."
8. The requirement of verification on oath, according to the plain reading of the above-referred provision applies to the plaint which is to be supported by a statement of account. Such alone can be the reasonable inference of section 9. Otherwise it could be said that the contents of the plaint are not to be verified on oath and the statement of account alone has to be so verified. Indeed, such interpretation shall lead to absurdity which is to be avoided on the basis of settled principle of interpretation. The second objection urged by Mr. Kazmi, is therefore, repelled.
9. As to the question of mark-up, the various agreements of financing between the parties are on the record and by reference to the contents thereof, agreed amount of mark-up can conveniently be worked out without going into detailed evidence and enquiry. Surely, in view of admission about execution of the various documents, allegation about erroneous calculation of mark-up cannot be termed serious and bona fide dispute entitling the defendant to grant of leave.
10. ' In the circumstances, the present application is dismissed being without merit. In view of dismissal of the application for grant of leave, the contents of the plaint are to be deemed to have been admitted and the plaintiff is entitled to decree forthwith. I have, however, proceeded to examine the plaint and the documents filed in, support thereof and find that the statement of account does not contain entries of mark-up in accordance with the agreement between the parties. The plaintiff can claim mark-up only in accordance with the agreement between the parties and for the period of finance. The claim for mark-up beyond the agreed rate is, therefore, disallowed. The plaintiff is also not entitled to any mark-up for the cushion period due to the reason that it was granted to compensate the Banking Companies mainly for the period consumed in litigation. The present law, however, stipulates grant of mark-up from the date of institution of suit with the result that cushion period over-lapse the period for which mark-up is granted under section 15 of Act XV of 1997. As regards claim for liquidated damages, I am not inclined to grant the same in view of the dictum laid down in the case of Habib Bank Limited v. Farooq Compost Fertilizer Corporation Ltd. And 4 others 1993 M LD 1571. The plaintiff, in the circumstances is directed to file revised statement of account showing the claim amount without inclusion of mark-up beyond the agreed period. Let such statement be filed within one week from today with advance copy to the other side. Put up on 30-4-1998.