Bankers Equity Limited, National Bank, Habib Bank, United Bank. Muslim Commercial Bank and Allied Bank; the plaintiffs filed a suit for recovery of Rs,183,757,756.00 alongwith other charges etc. Against Bantonite Pakistan Limited and seven others; the defendants. Leave to defend the suit was filed by the defendants upon receipt of summons. However, upon promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001, amended P.L.A. No,115-B of 2000 was filed by the defendants on 20-12-2001 as required under section 10(12) of the said Ordinance. Reply thereto was filed by the plaintiff-Banks. This PLA finally came up for hearing on 13-3-2002.
2. Learned counsel for the petitioners/defendants submitted that for some of the facilities, according to the contract between the parties, only competent Court at Karachi had the jurisdiction to entertain and try the suit. And as such, this Court had no jurisdiction to entertain and try the present suit. And that the petitioners/ defendants sought the financial facilities in November-December, 1984, but the same were sanctioned with a delay of over 12/13 months i,e, in 1986, by when the rates of foreign currency had gone up and value of Pakistani currency had gone down thereby causing a loss to defendant No,1 i,e, the company and for this loss, a suit for damages had already been filed. And that in the statements of accounts, mark-up on mark-up and future mark-up has been debited. And mark-up on undisbursed amounts has also been charged in the statements of accounts. And that number of facilities, as sanctioned, were not disbursed.
3. Learned counsel for the defendants/applicants was required by the Court to particularize his objections qua non-disbursement of amounts, charging of mark-up thereupon and also to show entries of incorrect mark-up or future mark-up or mark-up on mark-up charged by the plaintiff- Bank. Upon examination of each and every document and after going through the said documents, learned counsel for the defendants/applicants stated that mark-up on above accounts may have been charged to exaggerate the amounts, but he was not able to particularize the same. Furthermore, learned counsel for the applicants/defendants did not at all show or specify the amount of any undisbursed facility or mark-up charged thereupon.
4. Since objection as to the wrong charging of mark-up and debiting of undisbursed amounts was raised by the applicants/defendants in support of their PLA, attention of the learned counsel for the applicants/defendants was drawn to the mandatory requirements of subsections (3), (4). (5) and
(6) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and he was asked to show any tabulation made by defendants/petitioners or pleaded by defendants/petitioners in their application for leave qua the specific mandate of section 10(4) ibid.
(4) "In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:--
(a) The amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payments;
(b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of the suit;
(c) the amounts of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of the suit;
(d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereof."
5. Learned counsel for the applicants/defendants candidly admitted that no such account or tabulation was made in the PLA. In absence of such an account and for not being in the form of a written statement, the PLA was rejectable under subsection (6) of section 10 of the Ordinance, 2001 for not complying with the mandatory requirements of subsections (3) and (4) of section 10 ibid. The contention of the learned counsel for the petitioners/defendants thereupon was that he filed amended PLA under subsection (12) of section 10 ibid, as he had already filed a petition for leave, wherefor provisions prescribed in other subsections of. Section 10 ibid were inapplicably to the amended PLA.
6. I am afraid, the express provisions of subsection (12) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 mandate to the contrary. This subsection provides that "an amended application for leave to defend in accordance with the provisions of this Ordinance" shall be filed by a defendant, who has already filed a leave petition. This subsection expressly makes all the provisions of the Ordinance including subsection (3), (4), (5) and (6) of section 10 ibid, applicable to the amended PLA. Non-submission of the mandatory accounts, as provided for in subsection (4) of section 10 ibid, attract the penal consequences set out in subsection (6) of section 10 ibid and the amended PLA becomes rejectable. Furthermore, law is well-settled that jurisdiction of a Court within whose territorial limits cause of action or a part thereof arose, cannot be contracted out by the parties. In the present case, defendants/applicants have not denied accrual of part of cause of action within territorial limits of this Court. As such, objection of learned counsel for applicants/defendants regarding absence of jurisdiction in this Court, has no substance.
7. In view thereof, this PLA is rejected for:-
(i) Non-compliance with the mandatory provisions of subsections (3) and (4) of section 10 ibid.
(ii) Non-disclosure of any plausible, reasonable and serious ground to defend the suit; and
(iv) Non-substantiating the accounts stated above.
Main Case Upon rejection of amended PLA filed by defendants/ applicants, learned counsel for the plaintiff requested for passing of a decree forthwith in favour of the plaintiff-Bank and against the defendants in terms of the plaint and the prayer made therein.
2. Examination of the plaint shows that the plaintiff-Bank have in paras. Nos,5, 6 and 10 of the plaint, pleaded that a number of facilities in the nature of TFC financing, TFC local currency financing, LFM and TFC financial accommodation (in terms of paras. 5 and 6 of the plaint) and long term financing (para. 10) of various amounts were advanced by the syndicate of plaintiff-Banks to the defendants-Company. And that the financing agreements and other documents filed with the plaint and relied upon by the plaintiff were executed. And as per para.8, the said finances were secured through security documents and creation of mortgages, hypothecation, floating charges and trust receipts and joint personal guarantee of defendants Nos,2 to 8. It was further pleaded that defendant-Company availed and utilized the finances but failed to re-pay the same. And that on the request of the defendant No,1, the entire finances and loan liabilities of the defendant- Company were reviewed by the Syndicate of Banks and in order to make the project of the company feasible, Banks agreed to re-schedule and re-structure the financial facilities and also to allow further capitalization of financing facilities and offered Rehabilitation Package per sanction, dated 16th of October, 1995. Defendants, despite fresh documentation in September, 1998 thereto, failed to meet all essential pre-conditions including deposit of agreed equity and completion of civil works to entitle them to the release of facilities. Owing to this breach and violation of the pre- conditions of re-scheduling and restructuring etc., the plaintiff-Banks recalled Rehabilitation Package. And that all efforts at recovery failed and despite repeated undertakings, defendants failed to settle the outstanding liability of Rs,183,757,756.00 as on 30-4-2000. The break-up of the above said due amount was pleaded by the plaintiff-Banks in para.18 of the plaint as under:-- "The amounts due as reflected in the duly certified Statements of Accounts filed with the plaint, are:- given hereunder:-- Rs,141,969,335.00 Bankers Equity Rs, 9,814,082.00 National Bank Rs, 10,204,414.00 Habib Bank Rs, 11,118,229.00 United Bank Rs 6,504,462.00 Muslim Commercial Bank Rs, 4,147,234.00 Allied Bank Rs,183,757,756.00
3. In view thereof, plaintiff-Bank prayed for a decree for a sum of Rs,183,757,756.00 with mark-up, costs, service charges and liquidated damages against the defendants jointly and severally.
4. In support of their claim, plaintiff-Banks have filed and relied upon the Statements of Accounts at pages 821 to 841 of the suit to prove the break-up of 'amounts due' as per above reproduced para.18 of the plaint. Learned counsel for the plaintiff stated that these Statements of Accounts unquestionably prove the contents of the plaint and plaintiffs claim against the defendants for the unliquidated finances advanced to them. It was also contended that the same are duly certified Account Statements under the provisions of Bankers' Books Evidence Act, 1891 as per requirements of section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
Subsection (2) of section 9 ibid provides as under:-- "The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers' Books Evidence Act, 1891 (XVIII of 1891) and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy." (Emphasis added).
5. This section thus compulsorily requires a plaintiff to support the plaint by a statement of account containing certification in accordance with Bankers' Books Evidence Act, 1891. The wisdom of the word 'shall' and 'support' in this provision becames evident by reading of various provisions together that:- "Where a customer....Commits a default in fulfilment of any obligation with regard to any finance", the financial institution may institute a suit in the Banking Court under section 9(1) of the Ordinance, 2001.
'Finance' is an accommodation or facility as inter alia defined in section 2(d) ibid and 'customer' under section 2(c) ibid is a person to whom or on whose behalf finance has been extended...'.
Similarly 'obligation' under section 2(c) ibid includes 'agreement for the repayment' of finance either reviewed, re-scheduled or re-structured etc. A suit for recovery of defaulted finance or obligation filed by a financial institution under section 9(1) exclusively lies before a Banking Court under subsection (4) of section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The prerequisite for the assumption of jurisdiction by a Banking Court over the suit by a Banking institution against a customer, is the 'default' of the 'customer' in fulfilling 'obligation' with regard to any 'finance', which obviously involves accounting.
6. As per settled 'Banking Practices', every amount/ sum advanced or paid to a customer or sum expended/ incurred for and on behalf of a customer by a banking company is entered as 'debit' in the books of the Bank and the money received from or on behalf of the customer is entered in these books as customers 'credit' to arrive at a credit or debit balance. On the basis of the entries in these books, a statement of Accounts truly, faithfully and duly reflecting the entries, is prepared by the Bank for each account for all practical purposes. These Statements of Accounts, bearing true account profile, are to be regularly conveyed to the customers to apprise them of their 'obligation' towards the Bank or vice versa. These 'Statements of Accounts' containing copies of entries in the books of a bank, when certified as per section 2(8) of the Bankers' Books Evidence Act, 1891 (Act No,XVIII of 1891), attain the status of prima facie evidence of the existence of such entries in the banker's books under section 4 ibid and become admissible in evidence, in all legal proceedings, of the matters, transactions and accounts therein recorded like the original entry.
7. In view of the above, subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory for a Banking institution to support its plaint in a suit against the customer by a Statement of Account duly certified under the Bankers' Books Evidence Act, 1891 and also by all other relevant documents relating to grant of finance. Without such a 'Statement of Account' filed alongwith the plaint, a customer will obviously remain totally unaware of the amount advanced, mark-up charged and the basis, break-up, premise, mode of calculation of account, nature of default and the actual amount of Bank's claim against the defendant- customer. He will thus be unable to frame his defence within the limited period prescribed by law, to show reasonable, serious and plausible grounds of contest to be able to seek and obtain leave to defend the suit. Absence of filing the requisite Statements of Account alongwith the plaint, will essentially amount to absence of providing adequate, proper and reasonable opportunity of defence to the defending customer. Being thus unable to file a proper leave petition within thirty days under section 10(2) of the Ordinance of 2001 or within twenty-one days under section 10(12) ibid, such a customer may or may not later be able to amend his leave petition. His defence shall thus be rendered illusory, hence denied. Upon the compliance a Banking Company with the provisions of section 9(2) of the Ordinance of 2001, depends the right of defence of a defendant in the summary suits as visualized under the Ordinance, wherefor, the filing of duly certified Statements of Account by a Banking company alongwith its plaint, cannot be taken to be a mere formality or a technicality. This provision can only be held to be mandatory. Without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit. Under this law.
8. Another word employed in subsection (2) of section 9 ibid, requires deeper consideration as this word has a direct bearing and impact on the essential mandate contained in this provision of law.
This subsection provides that "plaint shall be supported by a Statement of Account" duly certified under the Bankers' Books Evidence Act, 1891 and all other relevant documents relating to the grant of finance.
In my opinion, the word 'support' read in the mandatory perspective of word 'shall', makes the plaint filed by a Banking institution, as totally dependent upon duly certified Statement of Account; on the 'support' of which can a plaint stand and sustain as per section 9(1) and (2) ibid. Plaint is subservient to or upon the statement of Account for its life, sustainability, security and maintenance. Without support of such Statement of Account (and documents) a plaint by itself cannot be presumed to stand independent. No building can be raised, constructed or created without the support of a foundation, columns and walls. Likewise, as per provisions of law, a plaint cannbt be structured, constructed, built, or raised without the foundation of a duly certified Statement of Account and the requisite documents. In fact, the three i,e, plaint, Statement of Account and the documents, though distinct, do not enjoy independence of existence in terms of subsection (2) of section 9 ibid. They are inseparable, indivisible and interdependent. Under subsections (1) and (2) of section 9 ibid, no suit in the Banking Court can be instituted by a Banking Company through a plaint without the requisite statement of Account and documents.
9. I am duly supported in my above opinion by discussion on the word 'support' at pages 153 and 154 of Second Edition, Words and Phrases, Legally Defined by John B. Saunders, Volume 5, 1970 Butter worths Publication, which is as under:
(i) "What is support? The force of gravity causes the super-incumbent land or building to press downward upon that is below it, whether artificial or natural; and it has also a tendency to thrust outwards, laterally, any loose or yielding substance, such as earth or clay, until it meets with adequate resistance. Using the language of the law of easements, I say that, in the case alike of vertical and of lateral support, both to land and to building, the dominant tenement imposes upon the servient a positive and a constant burden. The sustenance of which, by the servient tenement is necessary for the safety and stability of the dominant." Dalton v. Angus (1881), 6 App. Cas. 740, per Lord Selborne, L.C., at p.793."
(ii) "In my opinion, the general right which a man prima facie has at common law to the, support of his land, either subjacent or adjacent, is a natural right analogous to the right to flowing water, and not an easement. Row-botham v. Wilson (1857) 8 E & B 123, per Martin, B. At p.151."
(iii) "In the natural state of land one part of it services support from another, upper from lower strata, and soil from adjacent .Soil; and therefore, if one piece of land is conveyed so as to be divided in point of title from another continuous to it, or (as in the case of mines) below it, the right to support passes with the land, not as an easement held by a distinct title, but as an incident to the land itself, since quo resipsa IN haberi non debet.
(iv) The most common easement of support may be defined as the right of a owner of buildings to receive for them such support from the land or buildings of his neighbour as is sufficient to resist the effect of the law of gravitation and to maintain them in their existing state and position. This right involves the correlative right to prevent the owner of the servient tenement from using his land or the buildings upon it in such a manner as to deprive of such support the buildings upon the land of the dominant tenement (12 Halsbury's Laws (3rd Edn.), 604, 606, 607).
The right of support is right to have the surface kept at its ancient and natural level. It is not an easement but a natural right incident to the ownership of the soil."
The word 'support' has been discussed and referred to in Black's Law Dictionary, 5th Edition of 1979 at page 1291 as under:-- "Furnishing funds or means for maintenance; to maintain; to provide for; to enable to continue' to carry on. To provide a means of livelihood. To vindicate, to maintain, to defend, to uphold with aid or countenance."
The word 'support' has been defined by Chamber's 21st Century Dictionary at page 1420 as under:-- "To keep something upright or in place; to keep from falling; to bear the weight of someone or something."
The Concise Oxford Dictionary, 7th Edition at page 1072 gives the meaning of word 'support' as under:-- Carry (part of) weight of, hold-up, keep from falling or sinking, (foundation), butress, supports house, wall; supported by a lifebelt; had to be supported home); enable to last but, keep from failing, give strength to, encourage, (what supported him or his strength was a good conscience, hope, your approval; too little food to support life); endure, tolerate."
10. In view of the, above meaning, definition and nature of term 'support', subsections (1) and (2) of section 9 of the Ordinance, 2001, can safely and logically be interpreted by holding that suit of a Banking Company cannot hold, endure, sustain, stand and be instituted without life support and foundation of a duly certified Statement of Account and the said documents for the plaint, wherefor, non-compliance with express provisions of law bars a suit. Through a plaint unsupported by a Statement of Account duly certified under Banker's Books Evidence Act, 1891 and the documents relating to grant of finance.
11. I am reinforced in my above opinion by the difference of phraseology used in provisions contained in subsections (1) and (2) of section 9 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, and the provisions of Rules 14 and 17 of Order VII of C.P.C. Said rules 14 and 17 relate to production of documents in the Court upon presentation of a plaint. These provisions read as under:-- Rule.
14. "Production of document on which plaintiff sues.-(1) Where a plaintiff sues upon a document in his possesion or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) List of other documents.---(2) where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
Rule 17. "Production of shop-book.-(1) Save insofar as is otherwise provided by the Bankers' Books Evidence Act, 1891 where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
Original entry to be marked and returned.-(2) The Court, or such officer as it appoints in his behalf, shall forthwith mark the document for the purpose of identification; and after examining and comparing the copy with the original, shall if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed."
' The requirement under these rules is that a plaintiff shall "produce" documents or shop-books or accounts sued upon, when the plaint is presented and the plaintiff shall at the same time deliver the document or file the copy thereof with the plaint. These rules visualize total independence of the plaint, the documents, the books of account or shop-books. The documents/accounts relied upon can be subsequently produced with permission of the Court under Order XI, Rule 14 or under Order XIII, Rule 2 or under section 151, C.P.C. The consequence of non-production of documents alongwith the plaint are that the same "shall not, without the leave of the Court be received in evidence" under Rule 18 of Order VII, C.P.C. Or shall not be received in evidence "at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non- production thereof' under rule 2 of Order XIII, C.P.C.
The obvious distinction between the above said Rules and subsection (2) of section 9 of the Ordinance, 2001 is that above quoted Rules of C.P.C. Require "production of documents" alongwith the plaint or on the first hearing of the suit while subsections (1) and (2) of section 9 of the Ordinance, 2001 provide that civil suit shall be filed through a plaint "supported" by a duly certified Statement of Accounts and documents of finance. The words "to produce documents alongwith the plaint" used in C.P.C. Connote meanings different from the words "plaint shall be supported by a Statement of Accounts---" under section 9 of the Ordinance. The distinction thereto is X obvious, C.P.C. Allows a plaint independent of production of documents as consequence of non-filing thereto is inadmissibility of documents in evidence if leave of the Court is not obtained for subsequent production of the same. Contrarily, legislators chose not to use the word "produced" under section 9 of the Ordinance but used the word "plaint shall be supported by a statement of Accounts and documents of finance. The freedom of subsequent production of Statement of Accounts and documents of finance (not filed with the plaint) has been taken away from the plaintiff under section 9 of the Ordinance, 2001, which require plaint, Statements of Accounts or documents of finance together to initiate a civil suit on behalf of Banking Institution.
12. The claim of the plaintiff-Banks as set up in the plaint for recovery is, purportedly based upon Statements of Accounts as per para.18 of the plaint and amount of claim of each of the 6 plaintiff- Banks has also been pleaded in the said para. On the basis of these Statements of Accounts.
13. With the help and assistance of learned counsel for the plaintiff-Banks, I have examined the purported Statements of Accounts (at pages 821 to 841) filed and relied upon by the plaintiff-Banks of each account of financial facilities extended to defendant No,1 by each plaintiff.
14. At pages 821 and 823 of the suit Bankers Equity Limited i,e, plaintiff No,1 has on its letter heads filed and relied upon its alleged Accounts as "certified statement of Outstanding Position" which show the following account heads:-- At page 821 Investment Balances Term Financing-Long Term Term Financing-Short Term Term Financing-IMM Other Dues Commitment Charges Const. Prior Profit TFC Return on Mark-up Financing IMM Expenses Project Monitoring Fee Total At page 823 Investment Balances Foreign Currency Loan Other Dues Penal Interest on FCL Return on Mark-up Financing FCL Total
14. Plaintiff No,2 i,e, National Bank of Pakistan has filed three Accounts at pages 825, 827 and 829 under the heading of "Statement of recoverable up to 30-4-2000", narrating the following Accounts:--
(1) Purchase price
(2) Instalment after due date
(3) Purchase price Instalment over-due
(4) Liquidated damages on overdue instalment 20% Under the above schedule, break-up of principal outstanding, mark-up outstanding, total outstanding, disbursement for construction outstanding or discount ACC MP, liquidated damages, Bank dues up to 30-4-2000 and total outstanding, has been stated.
15. Plaintiff No,& i,e, Habib Bank Limited has filed and relied upon schedule of its Accounts at page 831 by giving particulars of outstandings as under:-- Sale price Mark-up Purchase price Add-Mark-up from 1-4-1988 to 30-4-2000 15% (S/T TFCs)
Add-Mark-up from 1-4-1996 to 30-4-2000 15% (L/T TFCs)
Add-Mark-up from 1-5-1997 to 30-4-2000 @ 15% (AI/T TFCs)
Less Recovery Add-Liquidated Damages Add-Central Excise Duty Total Outstanding as on 30-4- 2000
16. Plaintiff No,4 i,e, United Bank Limited has similarly filed and relied upon the schedules of its Accounts at page 833 under the head "Outstanding/Over-dues as on 30-4-2000". Part' ulars whereof have been set out in the following format:-- (A)Short Term TFCs Date of Disbursement Amount Disbursed Repurchase price Date of Production
(B) Long Term TFCs
(C) Additional TFCs Under the schedule of mark-up, following particulars have been stated alongwith rate of such mark-up as charged; 15% St TFCs 15% ST TFCs 12% LT TFCs 12% LT TFCs 15% Additional TFCs Total Mark-up during construction ' After the above two schedules, United Bank Limited records the total position of outstandings in another box on the same page.
17. Plaintiff No,5 i,e, Muslim Commercial Bank filed and relied upon its Account schedule at page 835 in the following form:-- Type of Advance Amount Period Number of Days Rate of mark-up 17% Amount Mark-up LT TFCs ST TFC ST TFC Total Mark-up SUMMARY S. No, Particulars
1. Principal
2. Mark-up Total (A 4:B).
8. Similarly, plaintiff No,6 i,e, Allied Bank Limited filed and relied upon its schedule of Accounts at pages 837, 839 and 841 by stating the following particulars:-- At page 837
1. Principal loan
2. Mark-up 15% P.A.
3. Closing balance
4. Summary as on 30-4-2000 Principal Mark-up Liquidation Damages C.E.D.
Grand Total At page 839 Principal (Loan Given)
Mark-up Charged in Advance Additional Mark-up from 1-5-1997 to 30-4-2000 (1096 days @ 15% p.a.)
Closing Balance Summary as on 30-4-2000 Principal Mark-up Liquidation Damages C.E.D.
G. Total At page 841 Principal (Loan Given)
Mark-up charged in Advance Additional Mark-up from 1-4-1996 to 30-4-2000 (1491 days @ 15% p.a.)
Closing Balance Summary: as on 30-4-2000 Principal Mark-up Liquidation Damages C.E.D.
G. Total
19. Examination of purported statements of balances as filed and relied upon by the plaintiff-Banks and as reproduced above, clearly show that the plaintiff-Banks have filed and relied upon Certificates or Schedules of Balances and not Statements of Accounts. The above said Schedules and Certificates of Balances show that the plaintiff-Banks have charged mark-up at a fixed rate from 12% or 15% or 17% (like interest), mark-up in advance, return on mark-up, liquidated damages 20%, expenses, costs, fees and penal interest. These debits have been made in general in a consolidated form to reach the total amount of claim of each plaintiff-Bank. Such method/form of accounts or mark-up at fixed rate or mark-up in advance or liquidated damages or expenses and fees are not debitable under the law in a Statement of Account.
The above-stated Certificates or Schedules of Balances, though contain certificate or verification close to the prescribed certification under Bankers' Books Evidence Act, yet such Certificates or Schedules can in no way be true and faithful copies of the entries of Books of Accounts maintained in the "usual and ordinary course of business" by a Bank in accordance with the requirements of Bankers' Books Evidence Act (section 2(8) referred). No presumption of truth or correctness can possibly be attached to the above-stated Schedules or Certificates of Balances containing unauthorised entries to be admissible in evidence and to become basis of a suit or a decree as prescribed in section 9(1) and (2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
20. In the case of "IDBP v. Al-Mansoor Limited and 6 others" (PLD 1989 Peshawar 191), a learned Division Bench of Peshawar High Court was pleased to hold that-- "certificate issued by Manager of the Bank does not fall within the provisions of section 4 of Bankers'
Books Evidence Act, 1891 and no presumption can be legally attached to it."
Even as to entries in Statements of Accounts, the law has been consistently interpreted that entries therein, if dubious, objected to or challenged, cannot alone be taken to be sufficient to prove Bank's claim or customers' liability thereto. In the case of "Messrs Muhammad Siddiq Muhammad Umer and another v. Australasia Bank Limited (PLD 1966 SC 684) it was observed as under:-- "Certified copy of account not of any greater efficacy than original---Admissibility of evidence not to be confused with sufficiency of evidence to charge with liability---Entry alone not sufficient to charge with liability---Corroboration necessary."
Similarly, the Hon'ble Division Bench of this Court in the case of "Citibank N.A., A Banking Company v.
Riaz Ahmad" held as under:-- "S.9. Bankers' Books Evidence Act (XVIII of 1891)---Suit for recovery of bank loan---Statement of account---Proof---Validity---Entry in the statement of account alone was not sufficient to prove the plaintiff-Bank's claim, corroboration was necessary in the circumstances."
21. On examination of the above-said Certificates or Schedules of Account Balances; the learned counsel for the plaintiff was thrice confronted with the fact that a plaint unsupported by a duly certified Statements of Accounts cannot become basis of trial of a civil suit filed by a bank and is liable to be rejected under Order VII, rule 11, C.P.C. Read with section 151, C.P.C. The learned counsel every time very candidly and frankly stated that the above Certificates of Balances are Statements of Accounts because they have been "provided by the Banks and if there is any fault in the same, the Banks must suffer".
Since the Certificates or Schedules of Accounts filed by the plaintiff-Banks purportedly to support the plaint, containing entries, which cannot and do not truly reflect the entries in the Bankers' Books of Accounts, therefore, the same cannot be held to be Statements of Accounts. Furthermore, plaintiff-Banks did not produce any Books of Accounts to support the contents of the above-stated Certificates of Balances or the amounts of claim pleaded in the plaint, I, therefore, have no option but to hold that the plaintiff-Banks have failed to comply with the strict provisions of section 9(1) and (2) of the Finance Institutions (Recovery of Finances) Ordinance, 2001 to support the plaint with Statements of Accounts duly certified per the provisions of Bankers' Books Evidence Act. Such a plaint cannot initiate a civil suit in terms of section 9 ibid to be legally proceeded with. As such the suit so filed is not only barred by law but also fails to disclose a cause of action in terms of subsection (2) of section 9 ibid. The plaint, therefore, is rejectable under the provisions of Order VII, Rule 11, C.P.C. Read with section 151, C.P.C.
22. In view of the above, the plaint in COS. No,44-2000 titled "Bankers Equity Limited and 5 others v.
Messrs Bentonite Pakistan Limited and 7 others" is rejected. There shall, however, be no order as to costs. Consigned to record.
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