1. ' ZAHID KURBAN ALAVI, J.---An appeal has been filed under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. Through this appeal the appellant has assailed the judgment and decree dated 8-12-1997. Primarily it seems that the appellant as customer had obtained Financial Facilities from the respondent's Bank under the law which was not based on interest. A Letter of Credit was opened for importing RBD Palm Oil and for ordrinenous substances. Two L/Cs were dated 31-2-1994 and were for U.S. $ 248.000 equal to Pakistani Rupees 13,713,864. The appellants and respondent's Bank had a dispute in respect of the imported consignment which resulted in a Suit No,379 of 1994 which is pending.
2. ' On 31-10-1996 almost 3 years thereafter a suit was filed by the Bank against the appellants before the Banking Tribunal which was Suit No,536 of 1996. A written statement was filed on 7-4-1997, thereafter the matter was transferred to the High Court as the new law came into the effect known as Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. This suit was decreed by a Single Judge with mark-up.
3. ' The Suit No,379 of 1994 was still pending and the matters and questions in Suit No,1396 of 1997 were directly and substantial in issue in Suit No,379 of 1994. It may be appreciated that the Second Suit No,536 of 1997 when it was transferred to the High Court was renumbered as Suit No,1396 of 1997. Apparently the appellants requested for the stay to the proceedings of Suit No,1396 of 1997 by virtue of the fact that Suit No,379 of 1994 was pending earlier but the learned Single Judge refused to stay the proceeding or hear together and disposed of the suit and decreed it against the appellants.
4. ' The Single Judge converted the written statement as a leave to defend application and after going through the facts stated in the written statement denied the defendants the right to defend itself and decreed the suit. The present appeal has been filed challenging that judgment.
5. ' We have heard at length Mr. Imtiaz Ahmed Lari learned counsel for the appellant and Mr. A.R.Akhtar, Advocate for the respondent. Mr.Lari has repeated all that he had stated' in the ground taken in the appeal. He has further urged that if it was a case of serious dispute between the Bank and the client then leave to defend should have been granted specially keeping in mind that a Suit No,379 of 1994 was already pending.
6. ' Mr.A.R. Akhtar on the other hand has urged that the earlier suit had been filed but it had no co- relation with the Bank. The Bank by itself had a contract with the appellants based upon which it had opened a Letter of Credit, the appellants/importers were duty bound to adhere to the terms and condition of the Letter of Credit. According to him once the documents were retired and the Bank had remitted the amount the appellants were duty bound to get the documents retired from the Bank after making the payment.
7. It seems that the goods were lost as they were discharged under nil mark and survey was conducted to verify the contents of the goods discharged under nil mark so that it could be established whether indeed the goods discharged under nil mark were part and parcel of the consignment that was imported. From the correspondence enclosed we do note that a dispute did exist between the Bank and the importer. Apparently there did exist some goods which were available but whether justifiable or otherwise a doubt was created as to whether indeed the consignment that was available and lying in the KPT Shed was part and parcel of the consignment.
8. The goods were imported on account of Habib Bank Limited and on had failure of the importers to clear and goods after retiring the documents and making the payment Habib Bank Limited was stuck. They were saddled with the documents and a liability. To our mind a dispute did exist between the Bank and Customer and, therefore, the leave to defend should have been granted and matter disposed of on merits.
9. ' Appeal .Is allowed, judgment and and leave to defend is granted. The matter to be disposed of alongwith Suit No,379 of 1994 on merits within six months.
10. Leave to defend granted.