ORDER MUHAMMAD ROSHAN ESSANI, J.-- The appellant filed appeal under Section 22 of Financial Institutions (Recovery of Finance) Ordinance. 2001 against the judgment and decree passed by the Banking Court No. I, Karachi, whereby the learned Banking Court No. I, Karachi, whereby the learned Banking Court decreed the suit for a sum of Rs. 334,943/- with cost of funds at 8% from the date of judgment till realization.
2. Brief facts of the case are that the respondent filed Suit No. 6042/2000 in Banking Court No. I, Karachi for recovery of Rs. 2,709,454/- together with 20% liquidated damages and mark-up at the rate of 15% per annum, In the plaint the respondent alleged that the appellant is the customer/hirer, having its account with the respondent-Bank and applied for transport finance under the Prime Minister Transport Scheme on mark-up basis. The respondent allowed to the appellant transport Finance facility of Rs. 1,505,950/- on mark-up basis at the rate of 15% on normal terms and conditions of the Bank. The appellant as a security for the repayment of the said transport finance facility executed Agreement of Finance, viz. Promissory note, facility letter, letter of hypothecation, hire purchase agreement. The respondent in terms of the agreement, purchased for the appellant vehicle Hino bus, bearing registration No. PA-0042, Engine No. 12649, Chassis No. AK176-44324, model 1992, make Hino, In the plaint it is stated that the respondent made some payment in his account, but, however, failed to pay the instalments despite various demands and notices by the respondents. On the basis of these averments the respondent filed the suit. The appellant filed application under Section 10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997. In the said application the appellant stated on oath that the respondent has unlawfully and deliberately suppressed material facts that on or about 1.1.1996 the vehicle in question has been acquired/repossess by the respondent-Bank through an Authorized Officer, namely, Peer Deedar Sarhandi, Assistant Vice-President and Incharge Vigilance Division, President Secretariat, Head Office, Karachi and since then it is in possession of the respondent- Bank and if any amount is outstanding in the account book of the respondent against the said vehicles stands adjusted, It is also stated in the application that after taking possession of the vehicle in question illegally by the respondent-Bank the officers of the respondent-Bank have sold it and misappropriate the sale proceeds which was more than the outstanding dues against the appellant, It is stated in the affidavit that the respondent- Bank had already initiated criminal proceedings against the said officers by lodging FIR No. 19/1996 and Ghallan has been filed before the Special Court (Offences in Banks) Sindh at Karachi, It is stated that the respondent-Bank is guilty of breach of hire purchase agreement and respondent is not guilty of breach of any obligation of the agreement, It is stated that the market-value of the vehicle in question was much more than the outstanding amount against the appellant. The learned Banking Court vide judgment dated 3.5.2002 came to the conclusion that the appellant was liable to pay instalments upto the date of the vehicle was impounded and passed the decree for Rs. 334,943/- being amount of the instalments due upto the date of impounding the vehicle in-question. The appellant preferred this appeal against the said judgment and decree.
3 We have heard Mr. Muhammad Tamaz Khan, learned counsel for the appellant, and Mr. Amir Malik, learned counsel for the respondent-Bank.
4. At the very outset the learned counsel for the respondent could not contradict the facts that the vehicle in question was impugned by the respondent-Bank on 1 1 1996 and further that the officers of the respondent-Bank have misappropriate the same. On our query, the learned counsel tor the respondent failed to reply that what was the market-value of the vehicle in question on the date of impounding the same and further that the respondent-Bank is not in a position to return the said vehicle to appellant in case appellant paid the entire outstanding dues. In our opinion in order to claim the amount in respect of the vehicle, for which finance had been provided by the respondent-Bank, the respondent-Bank has to return the vehichle impounded , to the appellant and or after disposing of the said vehicle in accordance with law and adujsting the sale proceeds against outstanding dues can claim for the shortfall. The respondent-Bank cannot maintain action against the appellant as admittedly the respondent-Bank is against the appellant as admittedly the respondent-Bank is not in a position to return the vehicle miss-appropriated by its staff. The respondent-Bank cannot maintain the suit against the appellant. On the contrary, we are of the view that it is for the respondent-Bank to reimburse the appellant for the losses sustained by the appellant due to for the losses ustained by the appellant due to wrong and illegal acts of the respondent-Bank. However, since the appellant has not filed counter-claim, the same cannot be granted.
For the forgoing reasons the appeal is allowed with costs and the listed application has become unfructuous and stands disposed of as having become infructuous.