' MIAN SAQIB NISAR, J.---On 9-9-2000, the respondent No,1, brought a suit for recovery, against the appellants to the tune of Rs.96,87,886, before the learned Banking Court, Lahore. The appellants/defendants, moved an application for leave to appear and defend, which was disallowed and the suit has been decreed to the extent of Rs.74,92,137, hence this appeal.
2. Briefly stated the facts of the case are that the respondent leasing company brought a suit against the appellant No,1, as principal debtor and against the other as guarantors/mortgagers for the recovery of aforesaid amount. It A is the case of the respondent that the aforesaid amount is due to it under two leasing transactions and one for the demand finance facility provided to defendant No,1, for which the said stood as guarantors/mortgagers. The suit was supported by the documents such as leading agreements, the financing agreements and guarantee/mortgage documents. The appellants contested the suit, they did not deny the execution of the relevant documents and the availing of the leasing and the demand finance facilities, but took up the objection that the B amount has been repaid to the respondents. Besides, as appellant No,8, took up the plea that the said appellant is not the guarantor/mortgager for the leasing transaction, but only to the extent of the demand finance and is not liable to pay the entire suit amount. Learned Banking Court vide order dated 15-3-2002 has refused the leave to the appellants, resultantly, the judgment and decree to the tune of Rs.74,92,137 has been passed.
3. Learned counsel for the appellants has argued that under the first leading Agreement No,LHR/M/9/039, they were obliged to pay a sum of Rs.
1.00,00,000, whereas they repaid the amount to the extent of Rs.1,23,06,383 and in this manner, the payment has been made over and above their obligation.
4. We are afraid, this contention has no force, because on account of the default of appellant No,1 to discharge its complete liability thereto under the original agreement, a supplementary leasing agreement was executed between the parties on 17-10-1998 and the defendant No,1 was bound to pay an amount of Rs.1,27,93,388 till 25-12-1999. The payment of amount of Rs.1,23,06,383 admittedly paid by the defendant , No,1, when adjusted towards the aforesaid amount yet an amount of Rs.4,87,005 is the outstanding amount still due against the defendants.
5. As regards the second lease agreement same also on account of the default by defendant No,1 in liquidating its liability was supplemented by another agreement on 18-5-1998 and the appellant No,1, was obliged to pay an amount of Rs.1,30,12,016 therefore, adjusting the admitted payment by defendant to the tune of Rs.93,16,787 still the outstanding amount is Rs.36,95,229. We do not find that there is any error committed by the learned Court below in awarding the decree to the extent of these amounts against appellants Nos.1 to 7, because they admittedly are the borrowers/guarantors, for the leasing transaction and are jointly and severally liable in this regard.
6. As far as the demand finance facility is concerned, learned counsel for the appellant has raised an objection that being the leasing company, the respondents could not grant the overdraft finance facility and therefore, the agreement in this behalf is void agreement. He, however, conceded that an agreement was executed between respondent No,1 and the appellant No,1, in this behalf and also the other appellants Nos.1 to 8, were the guarantors. The argument is that because it is a void agreement and is not a "finance" within the meaning of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 2001, therefore, the Banking Court has no jurisdiction to take cognizance and decide the matter.
7. We are afraid, this objection has no force for the reason that as per the definition of the Financial Institution given in the aforesaid law, it includes leasing company which admittedly the respondent is. The "finance" has been defined in section 2(d) (iv) to mean and cover a loan, advance and over draft facility provided by the financial institution, to a customer. The "customer' has been defined in law a person to whom finance has been extended by a financial institution, thus for all purpose, respondent is the financial institution, the appellants are the customers and the recovery is sought for the finance resultantly, for the recovery of such amount under special law, it is only a Banking Court, which has the jurisdiction to try the case.
8.
8. On merits, under this finance facility, defendant No,1 had availed a sum of Rs.62,35,322 through a mark-up agreement dated 17-10-1998 and the buy-back price was Rs.70,59,903, defendant No,1 has only proved to have repaid an amount of Rs.37,50,000 and the outstanding liability is of Rs.33,09,903 about which the Court has passed the decree, therefore, we do not find any illegality in the judgment and decree of the Banking Court calling for interference as far as appellants Nos.1 to 7, are concerned.
9. However, in case of the appellant No,8, it is proved on the record that she has only guaranteed the amount due to the respondent under the demand finance facility, this is so clear from the guarantee, executed by her dated 17-10-1998 and also MODT of the even date. The Court below unfortunately has not adverted to this aspect of the matter and has also held the said appellant jointly and severally liable for the amount under the leasing transaction to which she did not stand as a guarantor, resultantly, the judgment and decree of the trial Court only to the extent of the appellant No,8 is modified holding that she is jointly and severally liable to pay the amount of Rs.33,09,903 alongwith the other appellants in respect of the demand finance facility. Subject to the above, this appeal is dismissed with costs throughout.