' MIAN HAMID FAROOQ, J.---The appellant/ judgment-debtor, through the filing of the present appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, has called in question, judgment and decree dated 6-10-1998, whereby, the learned Judge Banking Court, while dismissing the application for leave to appear and to defend the suit, filed by the appellant, proceeded to pass a decree for the recovery of Rs,9,14,012 with mark- up in favour of the respondent-Bank.
2. Precisely stated, the facts giving rise to the filing of the present appeal are that the respondent Bank filed a suit for the recovery of Rs,9,14012, against the appellant and National General Insurance Company, alleging therein, that the appellant obtained a loan of Rs,8,86,770 under Prime Minister Transport Scheme and purchased a vehicle bearing Registration No,LPT/3775, which was insured with the said Insurance Company. Subsequently, the vehicle was stolen, it met an accident and thereafter it was recovered by the police. According to the contents of the plaint, as the appellant as well Insurance Company refused to liquidate the dues of the respondent-Bank, therefore, suit for recovery was filed against them. Upon the service of the appellant, he filed an application for leave to defend the suit thereby, admitting the availment of the loan facility from the respondent-Bank and the purchase of the vehicle, but pleaded that the vehicle was since insured, therefore, Insurance Company is liable to liquidate the outstanding liabilities and he is not in any way responsible to pay any amount. During the pendency of the proceedings before the learned Judge Banking Court, the name of the Insurance Company was deleted by the learned Judge Banking Court, vide order dated 23-9-1998. Subsequently, learned Judge Banking Court, heard the arguments of the appellant on his leave application and after finding that no plausible defence has been made out, dismissed the application for leave to defend the suit and consequent thereto suit for recovery of Rs,9.14,012 was decreed in favour of the respondent-Bank vide judgment and decree dated 6-10-1998, hence, the present appeal.
3. The learned counsel for the appellant, while reiterating the contention recorded by this Court admitting note dated 18-3-1999, has submitted that name of the Insurance Company was erroneously deleted by the learned Banking Court, vide order dated 23-9-1998, without any legal justification. He has further submitted that on account of the passing of the said order, the impugned Judgment and decree was passed against him. Conversely, the learned counsel representing respondent-Bank has pointed that the appellant filed a Constitutional petition before this Court thereby challenging order dated 23-9-1998, whereby, the name of the Insurance Company was deleted, and the said petition was dismissed by this Court and maintained the order passed by the learned Banking Court.
4. Although the appellant has neither mentioned in his appeal about filing of the Constitutional petition, as urged by the learned counsel for the respondent, nor during his arguments apprised this Court about the decision of the writ petition, yet on the pointation of the learned counsel for the respondent, we have called for the record of Writ Petition No,22970 of 1999. Upon the examination of the record of the said writ petition we do find that the contention raised by the learned counsel for the respondent has a considerable force. The appellant filed the aforenoted writ petition, wherein, it has been mentioned that the appellant has filed the present appeal. The learned Single Judge has held that the order of deletion of the Insurance Company was passed before passing the decree, and the same was not agitated within time, therefore, writ petition is not maintainable. For the facility of reference the operative portion of order dated 10-12-1999 passed in the writ petition is reproduced as under:-- "It is pertinent to mention here that the petitioner was also respondent/defendant in the aforesaid suit filed by respondent No,4 in the Banking Court. The order of deletion of name of respondent No,1 was passed before the decree passed by the Banking Court. The petitioner did not agitate the same within. Time, therefore, writ petition is not maintainable. Even otherwise writ petition is liable to be dismissed on the well-known principle of laches. The petitioner is well within his right to avail his remedy provided under the law before the respondents or to file an application in RFA 446/98.
With these observations this writ petition is disposed of."
5. It flows from above that the order dated 23-9-1998, now assailed by the appellant, was challenged by him through the filing of aforenoted Constitutional petition, which was held to be not maintainable by the learned Single Judge, as the. Order impugned therein, was not agitated within the stipulated period. It appears from the record that in accordance with the observations of this Court, after passing of the said order in the writ petition, the appellant neither availed his remedy before respondent-Bank nor filed any application in this appeal. Even otherwise, - as noted above, the order dated 10-12-1999, passed in writ petition, whereby, order dated 23-9-1998 was challenged, has attained finality as the same was not further assailed before the higher forum, therefore, we are of the view that the petitioner is precluded from agitating or assailing the said order in the present appeal.
6. Upon the examination of the record of the case, we find from the averments contained in the application for leave to defend the suit, filed by the appellant, that he has not denied the availment of the financial facility from the respondent-Bank. The only defence of the appellant, as discernible from the leave application, is that the mark-up has not been charged in accordance with law and that he is not liable to pay suit amount as the vehicle was insured. Since the availment of the financial facility is admitted and there is no rebuttal on record to the statement of accounts, furnished by the respondent-Bank, in addition to other documents, therefore; we are of the view that appellant did not raise any plausible defence warranting the grant of leave to defend the suit.
Even otherwise, today learned counsel for the appellant has only raised the aforenoted plea, which has been dealt with by us.
7. Upon the examination of the impugned judgment and the record of the case, read with the documents relied upon by the respondent-Bank in support of its claim, we are of the view that the impugned judgment does not call for any interference, as the same is legal and unexceptionable, thus, we maintain the findings rendered by the learned Banking Court.
8. Upshot of the above discussion is that the appeal is devoid of any merits, thus, the same is dismissed with no order as to costs.