' MIAN HAMID FAROOQ, J.---Seemingly aggrieved by the judgment and decree dated 20-6-2001, whereby the learned Banking Court rejected the plaint in appellant's suit for the rendition of accounts and declaration, the appellant, through the filing of the present appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, has called in question the afore noted judgment and decree.
2. Facts giving rise to the filing of the present appeal are that, on 17-3-2001, the appellant filed a suit for rendition of accounts, against the respondents, before the learned Banking Court, alleging therein that a financial facility, to the tune of Rs,1,40,000, for the construction of the house, was availed by the appellant, which was repayable in 180 monthly instalments of Rs,1,172 each, within a total period of 15 years and the appellant has deposited a sum of Rs,2,08,000 before the expiry of 15 years, thus, according to the appellant, he has adjusted the financial facility. It was the case of the appellant that despite the adjustment of the said facility respondents Nos.4 and 5 illegally demanded an additional amount, thus, he paid a further amount of Rs,15,000. As the respondents were not issuing the clearance certificate and were allegedly demanding more amount, therefore, through the filing of the afore noted suit for rendition of accounts, it was prayed that the appellant is entitled for the clearance certificate. Pursuant to the issuance of summons by the learned Banking Court, as provided under the law, the respondents entered appearance and subsequently filed application for leave to defend the suit, which was replied by the appellant. However, the learned Banking Court, instead of deciding the leave application, after hearing the arguments on the main suit, proceeded to reject the plaint on the ground that it does not disclose any cause of action vide judgment and decree dated 20-6-2001, hence, the present appeal.
3. Learned counsel for the appellant has contended that the learned Banking Court has rejected the plaint, without deciding the application for the grant of leave to defend the suit, filed by the respondents, which was barred by time, thus, the impugned judgment and decree is without jurisdiction. He has further contended that the learned Banking Court rejected the plaint in complete oblivion of the contents of the plaint and has solely relied upon the statement of accounts, therefore, the impugned judgment suffers from legal infirmity.
' Conversely, the learned counsel for the respondents has supported the impugned judgment and decree and has urged that still a huge amount is outstanding against the appellant.
4. Upon the examination of the record of the case, we find that after the service of the summons upon the respondents, although they entered appearance through their learned counsel, yet did not file any application and instead thereof the learned counsel filed memo. Of appearance.
Subsequently an application for the grant of leave to defend the suit appears to have been filed on behalf of the respondents, but the learned Banking Court did not decide the leave application either way, thus, the same shall be deemed to be pending. Without deciding the aforenoted application, the learned Banking Court rejected the plaint, which course of action, to our mind is against the express provisions of law.
Section 9(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, provides that the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court and in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted. It flows from the reading of the aforenoted provision of law that the defendant, as a matter of right, cannot defend the suit unless upon filing of proper application, as provided under section 9(4) read with section 10 of Act. 1977, the Banking Court grants leave to defend the suit to such a defendant. Coming to the present case. Although the leave application was filed, which according to the learned counsel for the appellant is barred by time, yet the learned Banking Court in complete oblivion of the law on the subject completely ignored the pendency of that application and proceeded to embark upon the suit. Which approach of the learned Banking Court was contrary to the express provisions of law. The learned Banking Court without deciding the aforenoted leave application was not empowered to call. Upon the defendants to defend the suit, muchless, on filing of the statement of accounts, to reject the plaint.
We are of the considered view that the manner in which the learned Banking Court has proceeded to decide the suit has not been envisaged under the provisions of Act, 1997 and, thus, the learned Banking Court has completely travelled out of the scope and provisions of special statute, i,e, Act XV of 1997.
5. It is evident from the perusal of the impugned judgment that the learned Banking Court, after the receipt of the statement of accounts from the respondents, and after finding that still a sum of Rs,2,23,000 is outstanding against the appellant came to the conclusion, of course erroneously, that the parties are not at issue, thus, he rejected their plaint. The said approach of the learned Banking Court, to say the least, cannot be countenanced under any stretch of imagination and under any provision of law, inasmuch as the same is contrary to the established law, which provides that in order to reject the plaint only the contents of the plaint are to be taken into E account by the Court and the defence pleas raised by the defendants are not to be considered. In the instant case the learned Banking Court, while solely relying upon the statement of accounts, and treating the same as gospal truth proceeded to decide the whole case on the basis of the statement of accounts. On this count, too, the impugned judgment and decree cannot sustain under the law.
6. Upon the examination of the plaint, some of the contents of which have been reproduced above, we find that the same, definitely, disclose a cause of action inasmuch as the same has been supported by the photo copies of voluminous receipts showing that the appellant has faithfully paid the amount in instalments. Taking the averments contained in the plaint, it cannot be said that the plaint does not disclose any cause of action, that too simply on the basis of a statement of accounts, which was produced by the respondents, without obtaining leave to defend the suit and was erroneously considered by the learned Banking Court without deciding the leave application.
Even otherwise the case does not fall under any of the clauses of rule 11 of Order VII of the Code of Civil Procedure.
7. After going through the contents of the impugned judgment we are of the view that the same suffers from grave legal infirmity and has been passed in complete oblivion of the express provisions of law and, thus, not sustainable in law. Under the circumstances, we are constrained to set aside the impugned judgment and are inclined to remand the case for its decision afresh.
' Upshot of the above discussion is that the appeal stands accepted and the impugned judgment and decree dated 20-6-2001, is hereby set aside, with no order as to costs. The result would be that the suit, filed by the appellant, and the leave application, submitted by the respondents, shall be deemed to be pending before the learned Banking Court, who shall at the first instance decide the application for the grant of leave and thereafter shall proceed to decide the suit after hearing the parties and, of course, in accordance with law within a period of three months from today. Record to be transmitted immediately.