' This appeal is directed against the judgment and decree dated 6-11-1999 passed by the learned Judge Banking Court No,1, Peshawar.
2. Messrs Regional Development Finance Corporation (hereinafter referred to as R.D.F.C.) filed suit for recovery of Rs,20,874,966 against the appellant/defendant before the Judge Banking Court No,1, Peshawar. The appellants on service appeared before the learned trial Court filed application for grant of leave to defend the suit. The learned trial Court after hearing the learned counsel for the parties di missed the application for grant of leave to defend the suit and decreed the suit in favour of the plaintiff, vide judgment and decree dated 6-11-1999. Being aggrieved with the said judgment and decree the appellants have filed the appeal in hand.
3. Khalid Mehmood, the learned counsel for the appellants argued that as per section 9 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 a suit of a Banking Company could only be filed by the Branch Manager or such other Officer as the Board of Directors of the Banking Company may authorize in this behalf. In the case in hand the suit was neither filed by the Branch Manager nor by an authorized Officer of the Board of Directors of Messrs R.D.F.C.
Since the suit was filed by an unauthorized Officer, therefore, the same deserved dismissal, but this legal proposition was not appreciated properly by the learned trial Court.
4. It was also argued that the statement of account annexed with the plaint was also not in accordance with the agreements executed by and between the parties. Huge mark-up has been debited without any lawful authority and mark-up has been charged over mark-up which made the statement of Account inadmissible and no reliance could be placed thereon.
5. It was further argued that the learned Judge Banking Court No, 1 had no territorial jurisdiction because not only the documents were executed at Islamabad but the amounts of finance facility also disbursed at Islamabad, therefore, the Court at Peshawar had no jurisdiction to pass a decree against the appellant.
6. On the other hand Mr. Hidyatullah Khan, the learned counsel representing the respondent argued that the suit had been filed by a competent person. Salim Ansar, Chief Executive/M.D. Had executed Wakalatnama in favour of the counsel who had filed the suit in the Court. The said Chief Executive (Salim Ansar) had been authorised by the Board of Directors vide resolution (not placed on record) to file the suit for recovery before the competent Courts. It was stated that Nisar Muhammad Khan, the Regional Chief Executive had only signed the verification and as per order XXIV, C.P.C., he could verify the plaint being a principal officer of the Corporation.
7. Regarding the statement of accounts, the learned counsel for the respondent argued that mark- up has been levied in accordance with law and the appellant failed to point out any discrepancy in the statement of account either before the learned trial Court or even before this Court. Neither any statement of account was filed by the appellant nor they could pin-point any wrong entry in the statement of account therefore, the learned trial Court had properly relied upon the same and passed decree against the appellants.
8. Regarding the territorial jurisdiction, the learned counsel for respondent/company argued that the factory of the appellants is situated at Gadoon Amazai District Swabi, amounts were withdrawn and deposited at Peshawar, therefore, the Court at Peshawar had jurisdiction.
9. It was also argued that the appellants have admitted having executed all the documents annexed with the plaint and have even not denied the outstanding amount against them, therefore, the learned trial Court has rightly passed decree in favour of respondent/plaintiff which requires no interference by this Court.
10. We have heard the learned counsel for the parties and perused the record with the able assistance of the learned counsel for the parties.
11. So far as the arguments of the learned counsel for the appellants that the suit was filed by incompetent person and the same deserved dismissal, the same has no force at all. There is no denial of the fact that Mr. Salim Ansar was Chief Executive/M.D., R.D.F.C., when the suit against the appellants was filed. The record shows that the Chief Executive/M.D. Of R.D.F.C. (Mr. Salim Ansar) had executed Wakalatnama in favour of learned counsel who filed the suit. No doubt in paragraph No,1 of the plaint the respondent mentioned that Nisar Muhammad Khan was authorised person to file and institute the suit on behalf of respondent, but it is not only Nisar Muhammad Khan, Regional Manager of responding-Corporation who had signed the verification but the plaint was duly signed by the learned counsel engaged and authorised by Mr. Salim Ansar/M.D./ Chief Executive of R.D.F.C., but he did not verify the plaint. Verification and plaint was done by Nisar Muhammad Khan. The learned counsel for respondent argued that plaint could be signed by one person and verification by another as body of the plaint is separate from that of verification and there is no legal compulsion that the plaint as well as verification be signed by the same person. This argument of the learned counsel for the respondent has no substance at all. It is a matter of common knowledge that the word 'pleading' means plaint or written statement and as per Order VI, Rule 14 every pleading required signature of the party and his pleader or any person duly authorised by the said party. As per Order VI, Rule 14, C.P.C., every pleading is to be verified on oath or solemn affirmation by the party or by one of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. He has to mention also as to which paragraph of the pleading he/she verified of his own knowledge and what he verifies upon information received and believed to be true. The body of the plaint is not separate than that of the verification i,e, verification is part and parcel of the plaint. Plaint as well as verification has to be signed by the same party. As per section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 a suit for a Banking Company could only be filed by Branch Manager or such other officer as the Board of Directors of the Banking Company may authorise in this behalf. In the case in hand, the verification on the plaint was neither done by Branch Manager nor by the Officer authorised by the Board of Directors of R.D.F.C. The special resolution or power of attorney authorising Salim Ansar, M.D./Chief Executive of R.D.F.C., through referred to by the learned counsel for respondent during the arguments but despite directions, copy of the same was not placed on record. Therefore, in absence of any material available on record, we cannot presume that Salim Ansar had been duly authorised by R.D.F.C. To file the suit in hand. As we have held above that the verification on the plaint was not done by the authorised Officer. We do not, however, agree with the argument of the learned counsel for the appellant that since the plaint has not been verified in accordance with prescribed law, therefore, the suit deserved dismissal. The suit filed by the plaintiff cannot be dismissed due to defect of verification on the plaint. The omission to verify the pleading by the authorized person, does not give rise to any penal consequences because signatures, verification and drafting of the plaint in a particular manner are matter of mere procedure and the law making provisions for the same cannot be strictly construed. What is to be kept in mind, in this regard is that an aggrieved party approach the Court with a claim enforceable under the law and paid adequate court-fee on the subject matter of the suit, disclosed relevant facts as to enable the Court to adjudicate upon the matter. Nothing more than that is necessary to press a claim. Under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 no procedure in detail for verification of the pleading has been given. Under section 7 of the Act ibid, the provisions of the C.P.C. Have been made applicable for all practical purposes. The Code of Civil Procedure lays down a procedure for the drafting of the plaints as well as for signatures and verification by the parties. This procedure has been laid down in order to facilitate the work of the Courts and to avoid any possible ambiguity in the plaint for that matter in the pleadings of the parties, due to lack of necessary details or insertion of unnecessary details or failure to disclose the entire claim capable of decision in one suit. Signatures and verifications are primarily meant to lend authenticity to the pleading complacence with which Rules would help in adjudicating the claim completely and effectively, otherwise the result may be different. Rule 14 of Order VI, C.P.C. Was amended by virtue of amendment introduced by Ordinance XII of 1972 whereby pleadings were required to be verified on oath or solemn affirmation. Simultaneously, an amendment was also brought in Rule 6 of Order IX as a result whereof the Court may where it decides to proceed ex parte against the defendant, pass a decree without recording evidence. The non-verification of plaint by a duly authorised person is simply an iregularity. It would not render the plaint absolutely vold or a nullity and the plaint would not deserve dismissal only due to irregularity of plaint being not properly verified. The important test for showing that certain proceedings are a nullity is to show that the mandatory provision of law has been violated. Defective signing or presentation of a plaint by a person who does not hold the authority/power of attorney is no violation of any specific provision of the law, therefore, such presentation or signing cannot make the plaint a nullity. That is why the Legislature has avoided to use such language in the relevant rules which could compel the Courts to, construe that very strictly. The Rules regulating the procedure also allow the facility of amending the pleadings so as to remove the defects which might have crept in the pleadings inadvertently. The policy of the Court has also been to allow amendment of the plaints liberally. Verification and signatures on the plaint is one such matter which strictly relates to the procedure and the Rules in this regard are to be liberally construed. Similar question came up for hearing in Ram Labhaya Mal and another v. Firm Chanchal Singh Jaswant Singh AIR 1932 Lahore 28 wherein it was held:-- "Want of verification of pleadings has not the effect of making them void. It merely amounts to an irregularity which does not affect the merits of the case and which can be rectified by permitting the party concerned to make good the deficiency by amending the pleading."
12. Similarly in Wah Muhammad Khan v. Ishak Ali Khan and others AIR 1931 Allahabad 507 it was held:-- "The absence of signature or verification or for the matter of that the absence of presentation on the part of some of the plaintiffs out of several does not affect the jurisdiction of the Court, and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority."
13. Likewise in Tula Ram Chaudhari v. B. Debi Datt Chaudhari AIR (36) 1949 Allahabad 498 it was held:-- "Where a person holding a general power of attorney from plaintiff authorising him to verify plaints file suits and appoint lawyers on the plaintiff's behalf, for some unexplained reason verified the plaint in the name of the plaintiff, instead of in his own name and also signs the plaint and the Vakalatnama in, the plaintiff's name, thus purporting them to have been signed by the plaintiff himself, but there is no doubt that the plaint is filed in accordance with the direction of the plaintiff, the defects would be removed by the subsequent verification and signature by the plaintiff himself.
In any case the matter would not be of importance, if the suit is in time even considering that it was filed on the, date of subsequent verification and signing of the plaint by the plaintiff."
14. In Bundi Portland Cement Ltd. v. Abdul Hussein Essaji AIR 1936 Bombay 418 it was also held:-- "The rule in Order 29 is clearly permissive and not imperative in its terms and it lays down mere procedure. The rule, however, does not exclude the operation of the provisions of Order VI, Rules 14 and 15. In the case of ordinary pleadings if the signature on the plaint or verification of the pleading is defective, the verification of the pleading is defective the defect can be cured at a subsequent time. There is nothing in the case which requires a particular course to be followed by the persons who verifies the plaint. All that is required is that the plaint should be verified by a principal officer and he should be able to depose to the facts of the case. A de facto secretary of a firm who verifies a plaint in the absence of the secretary is a principal officer."
15. Reliance in this regard can safely be placed on The Commerce Bank Ltd., Karachi' v. Habib Bakhsh and another PLD 1978 Quetta 45 and Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd., Gujranwala PLD 1973 Note 33 at p.41.
16. So far as the other argument of the learned counsel for the appellant that Statement of Account annexed with the plaint was not in accordance with the agreement executed by and between the parties and mark-up has been charged over mark-up, hence the Statement of Account was not admissible has a force in it. The perusal of the Statement of Account annexed with the plaint as annexure 'A' shows that on 25-2-1996 debit balance in the Account was 1,21,836 but a sum of Rs,3,069,985 was debited as on 31-5-1998. Similarly a sum of 'Rs,11,372 was also debited on the same day towards Loan Admn. Fee. The amount of finance facility was disbursed on three different dates in the year 1991. The appellant kept on paying principal amount as well as mark-up thereof till 25-2-1996, but the fact remains to be answered is as to why mark-up was not debited from 4-3- 1991, the date on which the first instalment was disbursed till 31-5-1998 i,e, why the Bank kept on waiting for 7 long years for applying mark-up on the outstanding amounts.
17. The other Statement of Account (Annexure does not show that as to when the amount of finance facility was disbursed and on which date mark-up was debited. Similarly statement of Account Annexure -C' shows that a sum of Rs,3,30,885 was outstanding as on 19-5-1996, but a huge sum of Rs,4,631,304 was debited on 31-5-1998 towards mark-up and a sum of Rs,18,375 towards Admn. Fee on the same day. In order to clarify the Statement of Accounts, this Court after hearing the argument of the learned counsel for the parties directed the learned counsel for the respondent-Bank to furnish fresh Statement of Accounts which were submitted which show that interest has been charged at the rate of 19% which make the Statement of Accounts doubtful.
Hence no reliance can be placed on the same unless and until all the entries of mark-up are proved by the respondent-Bank. Moreover, detail study of the Statement of Account shows that mark-up has been charged over mark-up which under the Law respondent-Bank could not charge. The fact also makes the Statement of Accounts doubtful. Though objections on the Statement of Accounts were raised in the application for grant of leave to defend the suit but the learned Judge Banking Court did not bother to examine the Statements of Accounts annexed with the plaint while deciding the application for leave to defend the suit. Had the objections raised were attended to, the result would have been different.
18. The argument of the learned counsel regarding territorial jurisdiction has no substance at all.
Suffice it to say that not only the unit of the appellant is situated at Gadoon Amazai District Swabi, but amounts were withdrawn and deposited at Peshawar, therefore, the learned Judge Banking Court, Peshawar had the jurisdiction to entertain the suit.
' The offshoot of the above discussion is that we allow the appeal in hand, set aside the impugned judgment and decree dated 6-11-1999 and remand the case to the learned Special Judge Banking Court No,1 to record the evidence of the parties about the entries of Statement of Accounts particularly/regarding all payments by the appellant, mark-up, Admn. Charges and other amounts debited by respondent/plaintiff Bank and then decide the case afresh in accordance with law within a period of three months positively. There shall, however, be no orders as to costs.