' MAIN HAMID FAROOQ, J.---Agricultural Development Bank, the appellant/plaintiff, through the filing of the present appeal under section 12 of Banking Companies (Recovery of Loans) Ordinance, 1979, has called in question judgment and decree, dated 28-5-1994, whereby the learned Special Judge Banking Court. Dismissed suit for recovery of Rs,248,536, filed by the appellant.
2. Facts leading to the filing of the present appeal are that the appellant filed a suit for recovery of Rs,248,536 against the respondent, alleging therein that Ahman, the . Predecessor-in-interest of the present respondent, was allowed a financial facility by the appellant, which was disbursed to him on 31-7-1982 and he executed certain documents, including mortgage deed, dated 28-7-1982, through which he mortgaged his land. Said borrower failed to repay the outstanding amount thus an amount of Rs,248,536 fell due against Ahman, as on 30-6-1992 and as despite notices he failed to liquidate the amount, which necessitated the filing of the suit for the recovery against the legal heirs of the original borrower. Although the learned Judge Banking Court issued summons, as provided under the law through all the modes of service, yet the respondents failed to appear, did not file any application seeking leave to appear and defend the suit and resultantly they were proceeded ex parte by the learned Judge Banking Court vide order, dated 14-11-1993, who directed the appellant-Bank to furnish the original documents. The appellant-Bank filed the original documents, which were exhibited as Exh.P.1 to Exh.P.6, while statement of account was exhibited as Exh.P.7. However, the learned Judge Banking Court proceeded to dismiss the suit vide judgment and decree, dated 28-5-1994, hence the present appeal.
3. This is a represented case and the respondents have engaged Mr. Muhammad Ikram Nagra, Advocate. Despite the fact that the name of the learned counsel has duly been published in today's cause list yet nobody has entered appearance to represent the respondents, thus they are proceeded ex parte.
4. The learned counsel for the appellant has contended that the impugned judgment and decree passed by the learned Banking Court, is not sustainable in law, inasmuch as the learned Banking Court has failed to appreciate the documents on record and completely misread the documents, specially the statement of accounts.
5. Upon the examination of the impugned judgment and the available record, we find that after the institution of the suit although the learned Banking Court issued summons to the respondents, through all the modes of service provided under the law, yet the respondents failed to file any application under the provisions of Order XXXVII, rule 3, C.P.C. Seeking leave to appear and defend the suit. According to the provisions of Order XXXVII, rule 2(2), C.P.C., if a defendant fails to file an application seeking leave to appear and defend the suit or in default of his appearance, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. In view of these provisions of law, when the respondents did not file any application for leave to appear and defend the suit, the appellant-Bank was straightaway entitled for a decree and there was no need for the Banking Court to call upon the appellant-Bank to produce the original documents on record.
6. We further find from the record that pursuant to the directions of the learned Banking Court, the appellant-Bank filed the original documents, which were exhibited as Exh.P.1 to Exh.P.6 and the statement of accounts was also exhibited as Exh.P.7. If all the documents, coupled with the statement of accounts, are read together, it would lead to an irresistible conclusion that Ahman, admittedly, obtained a financial facility from the appellant-Bank and executed certain documents.
The learned Banking Court passed the impugned judgment in complete oblivion of the documents, Exh.P.1 to Exh.P.6 and proceeded to dismiss the suit only on the basis of the statement of accounts.
Even if, the statement of accounts was not correct, that does not at all mean that the suit was liable to be dismissed straightaway. The appellant may not be entitled to recover the suit amount, but they were certainly entitled to get a decree for the recovery of some amount may be of the lesser amount. We do find from the statement of accounts that there are some unauthorised and questionable entries, but that does not mean that the suit of the plaintiff should be thrown out solely on the said ground. All the documents on record and the statement of accounts did show that Ahman availe' a financial facility and did not repay the amount and thus the appellant-Bank was entitled to recover the outstanding amount from him, more so when the respondent opted to remain absent and even did not deem it proper to place their view-point before the learned Banking Court. Even according to the learned Banking Court, some loan facility was granted to Ahman, which is discernible from the available record. We are of the view that the learned Judge Banking Court, while dismissing the suit, has certainly misread documents on record inasmuch as some of the documents have not even been looked into.
7. In view of the arguments of the learned counsel we have examined the impugned judgment taking into consideration, the available record and the law on the subject and find that the learned Judge Banking Court has failed to decide the case in accordance with law and the available record. The findings rendered by the learned Judge Banking Court are exceptionable and are not inconsonance with the available record, which, as noted above, has completely been misread. The learned Banking Court, after having itself found that Ahman availed a loan facility and executed documents, which are available on record, proceeded to non-suit the appellant-Bank on extraneous consideration. We do find that some entries in the statement of accounts are questionable, but since we are inclined to remand the case to the learned Judge Banking Court, therefore, we have refrained ourselves from giving any finding on these entries as they may prejudice the case of either of the parties. In any case we are of the considered view that the impugned judgment is not sustainable in law and thus we are constrained to set aside the same.
8. In view of the above discussion and reasons, the present appeal is accepted and the impugned judgment and decree, dated 28-5-1994 is set aside with no order as to costs. Resultantly the suit titled A.D.B.P. v. Muhammad Ashraf etc., filed by the appellant-Bank, shall deem to be pending before the learned Banking Court, constituted under section 5 of the Ordinance 2001, who shall decide the same afresh after taking into consideration the documents on record, the statement of accounts, after hearing the parties, and of course in accordance with law.