' MAULVI ANWRUL HAQ, J.---The respondent filed a suit on 6-11-1997 for recovery of Rs,11,962,287 against the appellants. In the plaint, it was stated that two Musharka facilities were provided to appellant No,1 vide two investment agreements, dated 19-7-1992 and 12-7-1993 for Rs,5 Million and Rs,4 Million, respectively; that these facilities were availed by the said appellant No,1 one after the other. The securities are detailed in para.5 of the plaint. It was stated that the appellant No,1 has committed a default in the payment of principal amount and the provisional profits under the agreement and upon the demand of the respondent, the appellant No,1 had been writing letters to pay off the liability but the same had not been done and that the suit amount is payable as per the statement of accounts attached with the plaint. It was also stated that under the orders of this Court, dated 16-10-1997, passed in C.O. No,57 of 1997 the appellant No,1 has made a deposit of Rs,25,00,000 with the respondents. With these averments, a decree for the suit amount alongwith damages at the rate of 20% per annum and future profit till the date of final release of the decretal amount was prayed for. The appellant put in appearance and filed an application for the grant of leave. To defend the suit. It was stated that the principal amount stands paid and that the dispute is regarding the entitlement of the appellant to recover the alleged provisional profit without rendition of accounts. The precise plea was that interest on the Musharka Investment cannot be charged in the garb of the said provisional profit. The matter was referred to an Arbitrator who has given an Award on 20-7-1997. Execution of the two agreements was admitted. It was then stated that investment was made on the basis of profit and loss sharing and detail was given of the losses suffered during the various periods in para.13 of the said application. The matter was taken up by the learned Banking Court on 19-10-1998. It was noted that a total sum of Rs,88,00,000 stands paid by the appellants to the respondent and a sum of Rs,2,00,000 is outstanding. The opinion formed by the learned Banking Court was that in terms of the said agreement the appellants cannot ask the respondent to share the alleged losses. Ultimately the decree for the recovery of Rs,81,62,207 was passed in favour of respondent and against the appellants with costs alongwith mark-up till realization of the decretal amount.
2. The learned counsel for the appellants argues that the learned Banking Court has not at all adverted to the agreements, admittedly entered into between the parties, while holding that there is no provision for sharing of the loss by the parties. Further contends that for all purposes the Banking Court has awarded interest to the respondent. Finally contends that even the respondent had not alleged any condition for payment of mark-up but the Banking Court has proceeded to pass the decree with mark-up. The learned counsel for the respondent, on the other hand, with reference to the several documents placed on the record of the learned trial Court argues, while conceding the first said contention of the learned counsel for the appellants that a case of loss being suffered by the appellants had not been made out.
3. We have gone through the record of the learned trial Court, with the assistance of the learned counsel for the parties. We have examined the agreement being relied upon by the respondent and admitted to have been executed by the appellants. Having gone through the said agreement, we find that the learned Banking Court while passing the impugned judgment and decree has not cared to read the said document. The agreement does make provision for a final rendition of accounts with reference to profit and loss and further the loss relatable to the mis management by the Company i,e, the appellant No,1 may also lead to consequences mentioned in the agreement.
Besides, it has to be taken note of that the investment was made with a condition that the appellant No,1 would be using the same only for working capital requirements for the construction of the proposed buildings mentioned in the agreement. We find that the matter has not been approached properly by the learned Banking Court.
4. Be that as it may, it has been affirmed by the learned counsel for the respondent that the entire principal amount stands paid besides another sum of Rs,1 Million has since been deposited by the appellants with the respondent. This being so, we do find that the questions raised in the application for leave to defend the suit do constitute substantial questions to be resolved by the Court. We, therefore, while allowing this R.F.A., grant leave to the appellants to defend the suit. This will be subject to a further deposit of Rs,3 Million by the appellants with the respondent within one month of this order i,e, on or before 7-5-2002. In case the deposit is not made, this leave granting order shall stand recalled and the decree passed by the learned Banking Court shall hold field.
5. No order as to the costs.
6. The records of the learned Banking Court be remitted back immediately.