' Present appeal, under section 9 of the Banking Tribunals Ordinance, 1984 (since repealed), partially calls in question judgment and decree dated 27-2-1995, whereby the learned Banking Tribunal (since defunct) although passed a decree for the recovery of Rs,35,80,759 in favour of the appellant-Bank, yet declined to award a sum of Rs,1,32,188, which portion of the decree has brought the appellant in appeal.
2. Brief facts leading to the filing of the present appeal are that pursuant to the filing of a suit for the recovery of Rs,37,12,947, by the appellant, against the respondents, before the then Banking Tribunal, show-cause notices, as prescribed under section 6(2) of the Banking Tribunals Ordinance, 1984, were issued. Although said notices were served upon the respondents and others, yet they choose not to file replies to the show-cause notices within the stipulated period, therefore, the learned Banking Tribunal, after finding that the respondents have duly been served and upon the examination of the statement of accounts, while coming to the conclusion that the mark-up for cushion period has been debited to the account five times, disallowed the amount of cushion period and consequent thereto passed a decree for the recovery of Rs,35,80,759, in favour of the appellant-bank and against the respondents vide judgment and decree dated 27-2-1995, which has been challenged in the present appeal with the prayer for the modification of the decree.
3. Despite the service of the respondents none has entered appearance to represent them despite various calls made, thus, the respondents are proceeded ex parte.
4. Learned counsel for the appellant has contended that the appellant-Bank was empowered to charge the amount of cushion period for five times and the findings of the learned Banking Tribunal to the contrary and the portion of the decree, while declining to award the appellant amount of cushion period to the tune of Rs,1,32,188, are not sustainable in law and the decree under appeal deserves to be modified.
5. Upon the examination of the available record of the case, we find that the appellant-Bank has charged the amount of cushion period five times, which comes to Rs,1,32,188. The learned counsel of the appellant insists that the appellant-Bank is empowered to claim the amount of cushion period, as debited in the statement of accounts, but he has not been able to cite any circular of the State Bank of Pakistan or any case-law on the subject in order to substantiate his afore noted contention. The concept of charging of amount of mark-up for cushion period was introduced in the Islamic Banking System in order to compensate financial institutions and to facilitate institution and conclusion of proceedings for recovery. There is no cavil to the proposition that the mark-up can be charged only for a period of 210 days, only once and that too at the time of institution of the suit, commencing from the date of default committed by the customer till the institution of the suit.
We are fortified in our views by the case reported as Habib Bank Ltd. v. M/s. Farooq Compost Fertilizer Corporation Ltd. And 4 others (1993 M LD 1571) wherein the learned Division Bench of the Sindh High Court, while dilating upon the proposition of charging the amount of cushion period has held as under: ' Banking Tribunal thus, acted in accordance with law and within the parameters of the agreed stipulations, when it disallowed any mark-up beyond the period of the contract, extending it only for the cushion period of specified days, which covered the period between demand and default as well as period likely to be consumed in the institution and conclusion of proceedings for recovery."
It flows from the above, that the appellant-Bank could charge mark-up only for cushion period for 210 days and that too only once at the time of the institution of the suit. Admittedly, in the present case the mark-up has been charged five times, that too on different occasions and during the currency of the account, therefore, the learned Banking Tribunal rightly took notice of the said legal infirmity and declined to award the amount of cushion period, to which no exception could be taken by the appellant-Bank.
6. Upon examination of the judgment rendered, by the learned Banking Tribunal we find that the same is legal, apt to the facts and circumstances of the case and does not suffer from any legal infirmity warranting the modification of the decree as prayed for in the present appeal, thus, we are not inclined to interfere in the impugned judgment.
7. In view of the above, the present appeal is devoid of any merits, thus, we are constrained to dismiss the same with no orders as to costs.