' MIAN HAMID FAROOQ, J.---Agricultural Development Bank of Pakistan, appellant/plaintiff, through the filing of the present appeal has, partially, called in question judgment and decree dated 8-4- 1996, whereby the then learned Banking Tribunal partly decreed the appellant's suit and refused to grant certain other reliefs to it.
2. Precisely stated, the facts leading to the filing of the present appeal are that the appellant filed a suit for the recovery of Rs,2,90,490, as on 1-7-1993, as principal amount' and all other incidental charges together with the liquidated damages, against the respondent, before the then Banking Tribunal, which was initially decreed ex parte against the respondent, however on an application, filed by the respondent, the said ex parte decree was set aside. Consequent to that the respondent, being the defendant, filed the reply to the show-cause notice, thereby controverting the contents of the plaint. Ultimately the learned Bapking Tribunal, after finding that the total recoverable amount comes to Rs,2,47,387 and that a sum of Rs,1,90,000 stands deposited, passed a decree for the recovery of balance amount of Rs,57,387, after the deduction of the aforenoted deposited amount, vide judgment and decree dated 8-4-1996. The appellant felt discontended from the said judgment and decree, hence filed the appeal in hand.
3. The learned counsel for the appellant has contended that the learned Banking Tribunal has awarded the markup only up to 7-7-1995, whereas the appellant-Bank is entitled to the amount of mark-up up to 7-7-1997, as the finance agreement is effective uptil 7-7-1997. He has further submitted that the amount of costs has illegally been refused to the appellants, though they were entitled for the same. In this perspective, the learned counsel seeks modification in the impugned decree. Conversely, the learned counsel for the respondent has supported the impugned judgment and decree and has submitted that the said decree has completely been satisfied.
4. The only grievance, voiced by the appellant-Bank in the present appeal, is regarding the non- awarding of the amount of mark-up uptil 7-7-1997 and of costs. Upon the examination of the record, we could neither find any mark-up/finance agreement, nor the learned counsel for the appellant could point out any such agreement, whereby the respondent had undertaken to pay the mark-up up to 7-7-1997. None of the documents on record, filed by the appellant in support of their claim before the learned Banking Tribunal, indicates that either the respondent was liable to pay the amount of mark-up uptil 7-7-1997 or the appellant is entitled to charge the future mark-up.
The learned counsel could not point out any clause of any document on record, which will go to show that the respondent is liable to pay the mark-up uptil 7-7-1997. We have also perused the sanction letter dated 28-6-1989 and the loan agreement (IBS-148) and unable to find any such clause, which binds the respondent to pay the mark-up uptil 7-7-1997. At the most, the appellant- Bank can fall back upon clause 9 of the sanction letter, according to which, the recovery schedule is given and the loan was to be recovered uptil 7-7-1997. We are of the view that even the reliance on the said clause would be of no avail to the appellant as according to the appellant, the respondent committed default before the said target date. We are of the view that if no default would have been committed and the respondent was to make payment uptil 7-7-1997, of course, the appellant-Bank could have recovered the amount of mark-up uptil 7-7-1997. In the instant case, the default was allegedly committed by the respondent before the said date which culminated to the filing of the suit. We find that the suit was decreed by the learned Banking Tribunal, after taking into consideration all the aspects of the case and making the calculations from the very inception of the loan facility, which calculations are, to our mind, just, fair and legal, inasmuch as, the deposit of a sum of Rs,1,90,000 by the respondent has not even been disputed before this Court today. As noted above, none of the documents indicates that in the facts and circumstances of the present case, the appellant is entitled to recover the mark-up uptil 7-7-1997, therefore, we are not inclined to agree with the submission of the learned counsel, which is hereby repelled and consequent thereto, it is held that the appellant-Bank is not entitled to recover the amount of mark-up uptil 7-7-1997.
5. So far as the other submission regarding non-awarding of costs is concerned, there is no cavil to the proposition that the awarding of costs is within the discretion of the Court and we find that the learned Banking Court, while exercising its discretionary poweRs, has declined to award the amount of costs. We are of the view that the exercise of said discretionary powers was neither arbitrary nor fanciful, therefore, we are not inclined to interfere in the exercise of discretionary poweRs, The second contention is equally without force.
6. We have examined the impugned judgment and find that apart from the principal amount, the learned Banking Tribunal has awarded mark-up for six years, 3% mark-up for cushion period and also the insurance charges etc. To the appellant-Bank. We are of the view that the appellant-Bank was awarded all the reliefs, which could have possibly been passed in the facts and circumstances of the present case. The impugned judgment is legal, unexceptionable and does not call for any interference, as such the findings whereof are hereby maintained.
7. Upshot of the above discussion is that the present appeal is devoid of merits, thus the same is dismissed with no order as to costs.