' SYED ZAHID HUSSAIN, J.--A suit for recovery of Rs13,06,579 was instituted by the appellant which was decreed by the learned Chairman Banking Tribunal, Faisalabad on 11-7-1996 to the extent of Rs,2,03,293 with costs. This is appeal by the plaintiff/Bank thereagainst. The respondents are not represented despite service. Their learned counsel was also sent intimation by the office, however he has not entered appearance. We have thus, heard the appeal ex parte.
2. The learned counsel contends that while passing the impugned judgment and decree, the documents on the record qua the availing of facility regarding labour charges , have been ignored by the Tribunal and that the agreed return has also been declined for no valid reason. Insofar as the claim of the Bank for liquidated damages is concerned, the same is not pressed in view of the legal position obtaining in the matter and stated in Habib Bank Ltd. v. Messrs Farooq Compost Fertilizer Corporation Ltd. And 4 others 1993 M LD 1571;. Allied Bank of Pakistan Limited, Faisalabad v.
Messrs Asisha Garments through Proprietor and 2 others 2001 M LD 1.955; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Limited, Islamabad v. Mohib Textile Mills Limited Lahore and 3 others 2002 C.L.D 1170 and National Development Finance Corporation v. Messrs Millrock Quarring (Pvt.) Ltd. And 7 others 2002 C.L.D 1382.
3. From the perusal of the pleadings and the material on the record, we find that in paragraph 4 of the plaint, the break up of the financial facility availed by the respondent was stated. Reply thereto submitted by the respondent/defendant was somewhat curious that "the petitioner/defendant No,1 has never availed the alleged facilities. All the documents prepared by the plaintiff-Bank with regards of these alleged banking facilities are forged, fabricated and without consideration".
Despite having taken the said stance, the respondents/ defendants made deposits of certain amounts in order to clear the liability. This speaks of the verity of the defence of the respondents.
' While declining the claim for Labour Charges, the learned Tribunal observed that "there is not even a single document on the record which could prove the loan of this amount regarding Labour Charges. From the perusal of the record, it is clear to me that nothing is on the record to prove this amount of finance which is disallowed having been claimed without any justification". Assailing the correctness of this observation and view taken by the learned Banking Tribunal, the learned counsel for the appellant has referred to the request of the respondents dated 22-7-1989, copy whereof appears at page 152 of the paper book, Item No,5 of the same makes mention of Labour Charges and sum of Rs,66,000 thereagainst. Reference has further been made to the documents appearing at pages 155, 156, 159 and receipt dated 24-7-1989 at page 170, which purports to have been signed by S.M. Javaid, respondent. Referring to the statement of account, it is contended by him that such facility was indeed prima facie availed by the respondents. We find some merit in the contention of the learned counsel for the appellant inasmuch as that the observation made and the view taken by the learned Banking Tribunal is not consistent with the documents on the record and rather proceeds on the assumptions as if there was no document in support of such a claim of the appellant/plaintiff. Reference to the above mentioned documents goes to show to the contrary. It is thus, apparent that due and proper application of mind was not made by the learned Tribunal while dealing with this aspect of the matter. We also find that the claim of the appellant- Bank about the agreed return as mentioned in paragraph 9 of the plaint, has also not been duly adverted to by the learned Tribunal.
' In view of the above , we are inclined to remit the matter to the Banking Court, Faisalabad for consideration of the claim of the appellant-Bank qua Labour Charges and agreed return. This however, will be done after affording due opportunity of hearing to the parties in accordance with law. The appeal succeeds to the extent mentioned above. No order as to costs.