' IHSAN-UL-HAQ CHAUDHRY, J.--- It is proposed to decide Regular First Appeal No,329 of 1999 and Regular First Appeal No,283 of 1999 by this common judgment as they have arisen from the same judgment in the suit filed by the Bank.
2. The relevant facts are that the appellant Bank filed a suit for recovery of Rs 33,41,604 in the Banking Court No,IV, Lahore. The defendant appeared and moved an application for leave to defend. Learned Banking Court after hearing the arguments dismissed the application and passed an interim decree for a sum of Rs,12,59,737 vide judgment, dated 25-11-1998. The defendant was allowed to satisfy the decree within the stipulated period otherwise the decretal amount was to be recovered by sale of the mortgaged property of the defendant. Thereafter, the suit was finally decreed vide judgment dated 16-4-1999. Now both the parties have filed these appeals against the judgment and decree dated 16-4-1999. The appeals were admitted to hearing and the parties are represented.
3. Learned counsel for the appellant Bank in Appeal No,329 of 1999, argued that the defendant has disputed some entries in the statement of account. It is explained that the entry dated 29-9-1994 whereby an amount of Rs,996,805 was debited was the amount outstanding against the respondent in respect of the loan advanced by subsidiary company of the appellant Bank under housing scheme, therefore, the amount could not be excluded and claim of the appellant rejected.
It is added that similarly two amounts of Rs,2,125 on account of insurance charges and Rs,40,000 was also due and properly debited to the respondent in the statement of account. It is argued that the loan was already existing, the same was converted into present facility, thus, amount of Rs,13,59,702 has been wrongly excluded by the learned Banking Court from the claim of the Bank.
4. On the other hand, learned counsel for the respondent argued that the amount was excluded in the preliminary decree passed on 25-11-1998, on the basis of the statement of the counsel for the plaintiff Bank, therefore, the appeal filed against the same on 5-7-1999 was hopelessly barred by limitation. It is added that even if this is treated as an appeal against the final' decree dated 16-4- 1999 still it was barred at least by 13 days. There is no application for condonation of delay, therefore, the appeal is liable to be dismissed as barred by limitation. It is argued that the appeal was not competent because the appellant had agreed as back on 25-11-1998 that these amounts be excluded from its claim. It is added that it was in fact consent decree. It is argued that the appellant cannot be allowed to approbate and reprobate. In this behalf, reliance is placed on Elahi Baldish v. Mst. Sardar Begum PLD 1967 BJ 5. It is argued that the claim relinquished or abandoned cannot be pressed into service in view of the provisions of Order II, Rule 2(2) of C.P.C. In this behalf, reliance is placed on Wali' Muhammad v. Ghulam Rasool 1970 SCM R 471, Ganga Ghulam v. Sheo Mangal Bajpai AIR (30) 1943 Oudh 83 and Prosanna Kumar Roy Choudhury v. Smt. Adya Sakti Dasi AIR 1942 Cal.
586. It is argued that there was no previous loan as was clear from the plaint. It is added that as per para. 10 of the plaint cause of action accrued in favour of the Bank on 29-9-1994 while the alleged house loan was advanced on 29-1-1994, therefore, this amount was clearly not subject- matter of the suit. It is new plea, which could not be allowed to be taken in appeal. In this behalf, learned counsel has placed reliance on Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690, Mst. Murad Begum v. Muhammad Rafiq PLD 1974 SC 322 and Fazal Rahman v. Amir Haider 1986 SCM R 1814. It is argued that the documents, which were not on the suit file could not be referred to in the appeal without their forming part of the evidence. In this behalf, reliance is made to Abdul Hameed v. Abdul Qayyum 1998 SCM R 671. It is added that the application for additional evidence is necessary. In this behalf, reliance is placed on Mehr Allah Ditta v. Muhammad Ali PLD 1972 SC 59 and WAPDA through Director (Legal) v. Syed Shamim Ahmad 1988 CLC 2286. It is argued that the amount allegedly advanced by subsidiary company of the appellant could not be claimed by the appellant because the said company is distinct and independent entity. In this behalf reliance is made to Pak American Fertilizers Ltd., Mianwali v. Amir Abdullah Khan 1984 CLC 2170. It is argued that mere entry in the statement of account did not prove the claim of the Bank. In this behalf, reliance is placed on Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684. The Australasia Bank Ltd. v. Messrs H.S. Mahmood Hassan Akbar PLD 1983 Kar. 431, State v. Muhammad Abdullah 1982 PCr.LJ 658 and Ghanashyam Das Mour. Agarwalla v. Fatik Chandra Das AIR 1957 Assam 123. It is argued that the claim of the Bank was rightly and legally rejected as the plaint was silent and it was not supported by any document. Therefore, appeal of the Bank is liable to be dismissed with costs.
' It is argued that the learned Banking Court while passing the final decree has ignored the fact altogether that the Bank was not entitled to charge mark-up on mark-up. Moreover, the Bank has worked out the mark-up on the entire suit amount, therefore, the same was to be re-calculated after excluding the fictitious amount. It is explained that the respondent has paid the amount, rather over paid to the tune of Rs,119,000. Therefore, appeal of his client may be accepted with costs and case remanded to Banking Court for fresh determination of the liability of defendant.
5. Learned counsel for the appellant bank while summing up the arguments submitted that the respondent never objected to the preliminary decree and the amount payable by him, therefore, the appeal filed by the respondent is without any merit. It is argued that the Banking Court was to determine in the final decree as to what amount was payable by the defendant to the bank. This was done; therefore, there is no merit in the appeal of the respondent. The same is liable to be dismissed.
6. We have given our anxious consideration to the arguments and have gone through the record, relevant provisions of Banking Company (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as ("Act of 1997") as well as precedent cases relied by the parties. The interim decree is dated 25-11-1998. An amount of Rs,13,59,702 was excluded in view of the statement of learned counsel for the plaintiff. The relevant portion of the judgment reads as under:-- ' The learned counsel for the plaintiff bank submitted that he has no objection if this disputed amount which comes to Rs,13,59,702 may be deducted from the amount for which the suit has been filed, i,e, Rs,26,19,439 and the suit may be decreed as the defendant has not denied the execution of the financial agreement "
' The same issue was again raised at the time of the passing of the final decree. It was held by the learned Banking Court that the first loan was not pleaded in the plaint and no documentary evidence was produced. Therefore, the claim was disallowed. The judgment and decree are dated 16-4-1999 while the bank applied for its certified copy on 21-4-1999. The same was prepared and issued on 26-5-1999 while the appeal was filed on 5-7-1999. This way the appellant has consumed in all 79 days out of which 35 were utilized by obtaining the certified copies. The appeal was to be filed within 30 days as per provisions of section 11 read with section 21 of the Act of 1997 while it was filed on the 44th day excluding the period utilized for obtaining certified copies, therefore, the same was barred by limitation at least by 13 days from the final decree and more than 5 months from the preliminary decree. The delay cannot be condoned in the absence of an application under section 5 of the Limitation Act, explaining each day of delay.
7. Now coming to the argument that the amount was excluded as per the statement of the learned counsel for the plaintiff. The bank has secured interim decree on the statement made relinquishing part of its claim, therefore, the claim relinquished to secure the interim decree could not be re- agitated. Learned counsel for respondent has rightly referred to the judgment in the case of Elahi Bakhsh (supra). The relevant portion reads as under:- "7, ' When a party has taken a particular position deliberately in the course of a litigation it must act consistently with it "one cannot play fast and lose". On the principle that person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais and a party to a proceedings before a Court is not permitted to assume inconsistent position in a Court. This doctrine has been extended to those cases also where a party has taken the advantage under an order of the Court e.g. Payment of cost, as in this case, and has always been estopped to say that it is an invalid order."
'The claim once relinquished or abandoned cannot be agitated in view of the provisions of Order II, Rule 2(2) of C.P.C. Learned counsel has rightly referred to the judgment in the case of Wali Muhammad (Supra). This was in fact a consent decree, therefore, the appellant could not maintain an appeal against the same. The same was not legally competent. This is not all. It is stated in para. 9 of the memorandum of Appeal as under:--- "9. That besides availing this facility of Business Finance prior to that, respondent availed a finance facility of Rs,9,70,000 from the subsidiary of appellant, i,e, Citi Bank Housing Finance Company Ltd.
For the purpose of Home Improvement on 291-1994."
' It is clear from the above that the subsidiary of the appellant bank was a limited company, therefore, an independent entity. The appellant cannot claim amount on its behalf. Learned counsel has rightly referred to the judgment in the case of Pak American Fertilizers Ltd. (supra). This is not all. Neither the first loan was pleaded in the plaint nor any document to support the entries in the statement of accounts was produced in the Banking Court, therefore, the claim merited rejection. Learned counsel for the respondent has argued that new facts cannot be pleaded in appeal and documents not on suit file could not be looked into. He has rightly referred to the judgments in the cases of Mst. Murad Begum, Fazal Rahman and Abdul Hameed (supra).
8. The bank has prosecuted the present suit in most causal and careless manner. It neither applied for the amendment of the plaint to take up the new plea nor moved an application in this appeal for production of additional evidence. The whole reliance was placed on the entry in the statement of accounts but the entry alone in the statement of account was not sufficient to prove the claim, corroboration was necessary as held by the Honourable Supreme Court in the case of Messrs Muhammad Siddiq Muhammad Umar (supra). This view was followed in the judgment in the case of The Australasia Bank Ltd. (supra). The relevant portion reads as under:- ". In all respects and in all circumstances a banker is required to act without negligence and should perform his duty properly and diligently subject to the agreement and/or banking practice. The elementary-duty of the banker is to maintain a correct and true account of the dealing between the parties. If a customer without checking the statement of account furnished by the bank and relying on the balances drawn in such statement of account, executes documents or confirms 'the balance but at a subsequent time the customer is able to show that the entries in the statement of account are not correct then the very basis on which such confirming document was executed loses its authenticity. In such circumstances a customer is entitled to call for the accounts and the banker is bound to render a true and correct account of the entire dealings."
'Presumption of truth is not attached to the statement of account. Learned counsel has rightly referred to the judgment's in the cases of The Australasia Bank Ltd. And Muhammad Abdullah (supra).
' It is settled law that a party cannot be permitted to raise new ground of attack or defence by departing from its previous pleas. Learned counsel for respondent has rightly referred to the judgments of the Honourable Supreme Court in the cases of Mst. Murad Begum and Fazal Rehman (supra). The new plea could not be raised, moreso in the absence of any supporting evidence. The appellant has not moved an application for additional evidence. It was probably for the reason that the appellant took a chance to secure a decree by misrepresenting the facts otherwise the appellant was fully aware of merits of its claim. Even if the application for additional evidence was moved, it was not a fit case as held by the Honourable Supreme Court in the case of Abdul Hameed (supra). It would have been a futile exercise in the absence of the necessary documents as held in the case of Allah Ditta (supra) relied by the learned counsel for the respondent.
9. In the present case a handsome amount of Rs,13,59,702 found its way in the account of the defendant. The corrupt practices have flourished in the banking institutions after the nationalization of banks in 1974. The deterioration has reached its climax. The result is that it is difficult even to presume that the statement of account and the entries in the books are correct.
The banking institutions have to carry out screening of corrupt and inefficient officials ruthlessly in order to restore their confidence. It will take some time before the statement of account or entries in the books of the banks are accepted prima facie correct.
' The result of this discussion is that the appeal of the bank is liable to be dismissed.
10. Now coming to the appeal of the respondent. The advancing of principal amount is not denied.
The only grievance is that the Banking Court has failed to ascertain the correct amount payable by the defendant because bank has charged mark-up on mark-up. Moreover, the mark-up was to be calculated after excluding the amount of Rs,13,59,702. Learned Banking Court after disallowing the part of the claim of the bank was to work out the mark-up due on the basis of the remaining amount. The same was to be treated as the principal amount. The Banking Court failed to advert these material aspects before adjudging that the defendant was liable to pay Rs,17,83,363 with costs. The result is that although the amount of Rs,13,59,702 had been excluded from the claim of the bank yet the mark-up has been worked out on this amount as well and has been decreed in favour of the Bank against the defendant/appellant illegally.
11. The upshot of this discussion is That the appeal (Regular First Appeal No,329 of 99) filed by the bank is dismissed with costs as incompetent, barred by limitation as well as on merits.