' MIAN HAMID FAROOQ, J.---Agricultural Development Bank of Pakistan, through the filing of the instant appeal, under section 9 of the Banking Tribunals Ordinance, 1984, has called in question judgment and decree dated 17-5-1995, whereby, the then Banking Tribunal has held that "the suit of the plaintiff Bank stands fully adjusted under the Prime Minister Incentive Scheme with no order as to costs."
2. Briefly stated, the facts leading to the filing of the present appeal are that the appellant filed a suit for recovery of Rs.175,067, including all charges, costs, expenses etc and the liquidated damages, against the respondents before the then Banking Tribunal asserting therein that the predecessor in interest of the respondents availed two financial facilities, and executed certain documents but the respondents failed to adjust the loan liabilities, thus, necessitated the filing of the suit. Pursuant to the issuance of notice, as contemplated under section 6(2) of the Banking Tribunals Ordinance, 1984 (since repealed), the respondents filed reply to the show-cause notice, which was not further responded by the appellant Bank. Ultimately, the learned Banking Tribunal, after hearing both the parties, came to the conclusion that the appellant Bank is not entitled to claim the liquidated damages and the future markup and as the case is covered by the Prime Minister Incentive Scheme, therefore, "the suit of the plaintiff Bank stands fully adjusted under the Prime Minister Incentive Scheme with no order as to costs" vide judgment and decree dated 17-5- 1995, hence the present appeal.
3. Despite service, nobody has entered appearance to defend this appeal, thus, the respondents are proceeded ex parte. '
4. The learned counsel for the appellant Bank has contended that the impugned judgment was rendered in complete oblivion of the facts of the case and the law on the subject, thus the same is not sustainable in law. He has further submitted that the appellant Bank was entitled for all the reliefs claimed in the suit, including the future mark-up and the liquidated damages, but the same were illegally declined by the learned Banking Tribunal.
5. Examination of the record manifests that pursuant to the issuance of notices, under section 6(2) of the Banking Tribunal Ordinance, 1984, the respondents filed reply to the show-cause notice, the contents whereof were verified in accordance with law. It was, inter alia, pleaded that the defendants have paid a sum of Rs.368,383, as against the original loan amount of Rs.175,067, therefore, they have paid over and above the amount "due". It appears appropriate to reproduce para.2 of the reply, which reads as follows:- {{URDU TEXT}} ' It appears from the record that the appellant Bank did not contest the said reply, as we do not find any rejoinder on record on behalf of the appellant Bank, thereby, controverting the pleas raised by the respondents in the reply to the show-cause notice. The respondents specifically asserted in their reply that they have paid a sum of Rs.368,383 to the Bank, which stance was nowhere denied by the appellant. It flows from the above that the appellant Bank conceded the said claim by not controverting the same and thus, the said assertion, under the law, would deem to be admitted by the Appellant Bank. Even subsequent to the filing of the reply and till the passing of the decree, the appellant Bank failed to agitate, through filing any miscellaneous application, that the said amount was not paid or that the same stands adjusted. It appears from the tenor of the judgment that the said plea was not taken by the appellant even during arguments before the learned Banking Tribunal and the only pleas raised by them before the learned Banking Tribunal were about the grant of liquidated damages and the claim of future mark-up.
6. In the above backdrop, we are not persuaded to believe that the suit of the appellant Bank was not adjusted, as held by the learned Banking Tribunal.
7. So far as, liquidated damages are concerned, the appellant-Bank is not entitled to recover the amount of liquidated damages, as per the principle laid down in the judgment reported as Allied Bank of Pakistan Ltd. Faisalabad v. Messrs Aisha Garments etc. PLJ 2001 Lahore 937 = 2001 M LD 1955, wherein it has been held that the Bank is not entitled to recover the amount of liquidated damages.
8. So far as the contention raised by the learned counsel regarding future mark-up, the same is equally without force. It is settled law and is also discernible from the basic concept of Islamic mode of financing that in the facts and circumstances of the present case, Bank is not entitled to claim future mark-up. Furthermore, Banking Tribunals Ordinance, 1984, also, does not empower the Banking Tribunal to award the future markup, hence, the contention of the learned counsel is repelled.
9. In the above back drop, we have examined the impugned judgment and find that the same is in consonance with law and facts of the case, and does not suffer from any legal infirmity, thus, does not require any interference by this Court, hence the same is hereby maintained.
10. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is hereby dismissed with no order as to costs.