' IJAZ-UL-HASSAN, J.---This appeal is directed against judgment and decree dated 9-5-2000 passed by learned Judge Banking Court, Hazara Division, Abbottabad, whereby he rejected the application of Mst. Zamurd Begum appellant herein, for grant of leave to appear and defend the suit and decreed the Bank's suit in the sum of Rs,50,43,095.50 against the defendants with costs.
2. Briefly the facts so far as necessary for the present purpose are, that Industrial Development Bank of Pakistan having its Head Office at Karachi and Regional Office at Arbab Road at Peshawar (hereinafter called as plaintiff-Bank) instituted Suit No,130/1 of 1995 against Messrs Hazara Auto Parts (Pvt.) Limited) and others, a private limited company incorporated under Companies Ordinance, 1984 through Muhammad Asad and Mst. Zamurd Begum, its Managing Director and Director respectively, for recovery of Rs,50,43,095.50 due from the defendants as on 31-3-1994 inclusive of mark-up with other charges through attachment and sale of immovable properties of the defendants detailed in the plaint. Defendant No,1 applied to the plaintiff for grant of non- interest based financial facility for setting up a new Auto Parts Manufacturing Unit located at SIE Mansehra. The plaintiff agreed in principle to purchase from the defendant No,1 machinery and equipment at an estimated price of Rs,2.000 million and simultaneously to re-sell the same at lump sum resale price of Rs,4.887 million on the plaintiffs standard terms and conditions contained in the sanctioned Advice No,ROP/PED/P/89536 dated 8-7-1970. The defendant No,1 executed various documents in favour of the Bank consisting of:--
(a) Agreement to sell (by Bank to Customer).
(b) Demand Promissory Notes.
(c) Agreement of Hypothecation.
(d) Letter of Acknowledgement.
(e) Promissory Note.
(f) Agreement to sell (Customer's movable property).
(g) Agreement (payment of 22% mark-up for interim period).
(h) Financing Agreement.
(i) Undertakings.
(j) Copy of Resolution of Board of Directors, dated 1-1-1991.
' Defendant No,1 in order to secure the aforesaid facility mortgaged its Industrial Plot bearing No,12 measuring 5310 Sft situated at SIE Mansehra together with its factory building, plaint, machinery, equipment and all other installations through execution of Memorandum of Deposit of Titled Deed dated 14-5-1991. A charge was also created in the office of Deputy Registrar of Companies, Corporate Law Authority, in favour of the plaintiff-Bank. The said facility was further collaterally secured by mortgage of defendant No,3 property comprising of a house in Mauza Banda Qazi District Abbottabad through execution of mortgage deed No,405 registered before Sub-Registrar Abbottabad on 10-4-1991. The first instalment of financial assistance amounting to Rs,0.500 million, second instalment of Rs,0.786 million and third instalment of Rs,0.514 million was disbursed to M/s F.S. Industries (Pvt.) Limited Peshawar as machinery manufacturer against the machinery.
According to the Bank, during the course of inspection of the project, it was found that the machinery purchased under IDBP Financial Assistance has been replaced with second-hand imported machinery and some of the machinery has not been installed. It was further observed that a sum of Rs,0.200 million was disbursed for complete "Foundry with Furnance, Molds, Burners etc." which was not available on the date of inspection. The defendants were informed about the irregularities and mis-utilisation of the financial assistance resulting in withdrawal of final instalment of Rs,0.200 million due to the breach of contract by the defendants but the defendants did not bother to discharge their liability and pay the loan amount with mark-up and other charges which obliged the plaintiff-Bank to file suit.
3. Muhammad Asad, Managing Director of defendant No,1 concern did not appear in Court to join the proceedings. He was proceeded against ex parte. Mst. Zamurd Begum appeared in Court and resisted the Bank's claim on various grounds legal as well as factual. She raised the pleas of limitation, jurisdiction and denied having affixed her signatures on the documents attributed to her and made basis of the Bank's claim. The application of Mst. Zamurd Begum having been found without merit was dismissed and the leave was declined to her. Resultantly, a decree for recovery of the suit amount was granted in favour of the plaintiff-Bank by virtue of judgment and decree impugned herein.
4. Mr. Muhammad Shafique, Advocate appeared on behalf of the appellant whereas the respondent-Bank was represented by Malik Mehmood Akhtar, Advocate. We have gone through the record of the case with the able assistance of learned counsel for the parties. We have also heard the learned counsel at some length.
5. Counsel for the appellant has vehemently contended that in cases where the defendant sets up a defence, whether plausible or even illusory, Courts are inclined to grant leave to appear and defend the suit because at the stage where leave to defend is sought, the Judge is not to try the action, he is only to see that there is a serious and bona fide allegation of triable issue. He reiterated that the appellant was entitled to the grant of leave to defend the suit on account of having disputed the signatures attributed to her and refusal on the part of the learned trial Judge to accede to the request, the rights of the appellant have been materially prejudiced. The arguments are summed up with the submission that in any case, in the circumstances and keeping in view the controversy involved regarding genuineness or otherwise of the signatures of the appellant the trial Court should have resolved the point in issue after recording the evidence.
The learned counsel also contended that the appellant an old lady of advance age has been defrauded by defendant No,2 with the collusion of the Bank officials. Our attention was also invited to the admitted signatures of the appellant with those of the disputed signatures and an attempt was made to prove that the appellant had obtained no loan, that no document was executed by her in this respect and that the signatures attributed to her were forged and fabricated. To augment that contentions reliance was placed on National Bank of Pakistan v. Mst. Hajira Bai and 2 others PLD 1985 Kar. 431 and National Development Finance Corporation v. Messrs Bhital Rubber Industries Limited and 7 others 2001 CLC 492.
6. Conversely learned counsel for the respondent-Bank, has supported the impugned judgment and decree and prayed for its sustenance.
7. We have very carefully compared the admitted signatures of the appellant appearing on the Wakalatnama, General Power of Attorney and appeal etc. With those of the disputed signatures appearing on the documents made basis of the Bank's claim. These documents consist of the letter of Guarantee, Agreement to sell, agreement to Hypothication, Finance Agreement, Certificate of Registration, Demand Promissory Note, Mortgage Deed and Lease Deed etc. The comparison shows that the admitted signature and the disputed signatures are absolutely identical and have no distinction. The mere contention of the appellant that she is not concerned with the business of defendant No,1 Company that she had not applied or obtained financial assistance from the plaintiff-Bank or that she had not signed any document in favour of the plaintiff-Bank, without a positive attempt on her part to substantiate the same is of no consequence. The bare denial of signatures on the letter of Guarantee and other documents without any prima facie proof could not furnish a ground for the grant of leave to appear and defend the suit. There is nothing on record in support of allegation of fraud or fabrication. It is easy to level an allegation of fraud but it is always of difficult to prove the same. The appellant is Director of defendant No,1 concern and the financial assistance has been extended for setting up of a Unit. The loan has been obtained in the year 1991 but unfortunately no payment has been made towards adjustment of the liability and ultimately a plea, regarding 'Pardanasheen' and old age and denial on the part of the appellant to sign the documents has been raised which we are not prepared to accept. We are satisfied that the appellant had mortgaged her property in favour of the respondent-Bank at the time of availment of loan besides executing various other documents.
8. It is true that superior Courts have provided a cloak of protection to a Pardanasheen lady who on account of her ignorance, inexperience and social condition is not able to understand the nature of business transaction and, therefore, in her case the onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the lady herself but experience has shown that a woman belonging to a Pardanasheen class may possess sufficient intelligence to the nature of business she is engaged and to understand the contents of the documents in which she is party despite the restraints of Parda. In the present case, it is not possible for us to believe that on account of being a Pardanasheen lady of an D advance age, the appellant was not engaged in the business of defendant No,1 concern; that she had no knowledge about the Bank's loan and that she had executed no document in favour of the plaintiff-Bank, prior to institution of Suit No,130/1 of 1995 the plaintiff-Bank had initiated recovery proceedings under section 41 of IDBP Ordinance, 1961 through Collector who took the cognizance of the matter and proceeded in accordance with law. In response to notices a declaratory suit was filed by the appellant in which no such plea was raised. We find ourselves in agreement with learned counsel for the respondent that the genuineness of the signatures has been denied for the first time for no other reason but to frustrate the Bank's claim for recovery, as long as possible. Had this plea been available to the appellant, the same would have been raised in the declaratory suit mentioned above. The case-law cited on behalf of the appellant proceeds on different facts. In the said rulings leave to appear was granted principally for the reason that a bona fide and serious dispute existed between the parties and in order to arrive at a correct conclusion, it was considered necessary to grant leave whereas in the present case leave has been refused for valid and cogent reasons which warrant no interference of this Court.
9. In the wake of above discussion, finding no substance in this appeal, we dismiss the same with no order as to costs.