' IJAZ-UL-HASSAN, J.---This appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 by Messrs Aima Industries (Pvt.) Ltd., Peshawar through its Chief Executive Azizur Rehman and others, calls in question the legality and propriety of the judgment and decree dated 23-7-2001 passed by learned Judge Banking Court No,II, Peshawar in Suit No,942-1 of 2000, whereby the application of the appellants defendants for grant of permission to appear and defend suit, was dismissed and a decree for recovery of Rs,93,04,593 was granted in favour 'of the respondent-Bank against the appellants/defendants.
2. Shortly narrated the facts of the case are that defendant No,1 opened an account with the plaintiff-Bank and during the course of business dealings applied for various finance facilities. The Bank accepted the request of defendant No, 1 and the latter availed the said facilities and executed various documents with the plaintiff-Bank including finance agreements dated 29-5-1995 and 2- 12-1997 and Demand Promissory Notes. In order to further secure the various financial facilities, defendants Nos,4 to 14 mortgaged their properties in favour of the plaintiff-Bank. Defendants Nos,2 and 3 also executed their personal guarantees dated 12-7-1995 and 2-12-1997 in favour of the plaintiff-Bank undertaking therein to adjust the bank dues in the event of default on the part of defendant No,
1. The grievance of the plaintiff-Bank, in essence is that the defendant-company fully utilized the financial assistance but its repayment performance remained unsatisfactory, which necessitated the filing of a recovery suit.
3. The appellants-defendants in their application for grant of leave admitted the availment of finance facilities and execution of documents in favour of the respondent-Bank but maintained that the company has suffered great loss at the hands of the Bank and suit has been filed with mala fide intention and with the view to forestall the recovery proceedings initiated by the Company against the Bank.
4. The learned trial Judge, upon consideration of the material available on the file, proceeded to hold that without going into the other controversies mentioned in the application for leave to defend and in the replication of the plaintiff-Bank, it is evident from the books of accounts that a sum of Rs,93,04,593 is outstanding against defendant No,1 and that no case for grant of leave has been made out. Having held so, he admitted the Bank's claim and decreed the suit, as noted above.
5. Mr. Nisar Ahmad Khan, Advocate for the appellants bitterly criticized the impugned judgment and decree and attempted to argue that the learned lower Court has committed an illegality and proceeded on wrong premises by refusing to allow the application for grant of leave. The learned counsel also submitted that in view of the counter suit for recovery of an amount of Rs,30,000,000 (Rupees Thirty Million) filed by the defendant-Company against the respondent-Bank, a good case for grant of leave was made out and the learned trial Judge had no justifiable reasons to dismiss the application without inviting evidence in order to reach at a correct decision. Additionally, the learned counsel urged that the plaint has not been signed by an authorized person, rather it has not been signed by any person and as such the suit should not have been entertained and adjudicated upon. Entries incorporated in the statement of accounts were also brought under challenge and the authenticity of the guarantees alleged to have been executed by defendants Nos,2 to 14 were disputed. Concluding the arguments, the learned counsel also submitted that the mark-up charged in this case is on higher side and not in consonance with the contracted rate.
6. Mr. Qaiser Rashid, Advocate, learned counsel for the respondent-Bank, on the other hand, submitted that no serious issue was involved in the case requiring trial; that suit filed by the defendant-Company for recovery of damages, had no nexus with bank suit for recovery and that good reasons have been advanced by the learned lower Court for refusing to allow the application of the defendants-Company for grant of leave.
7. Having heard the arguments and submissions of learned counsel for the parties with reference to the material on file, we find that the impugned judgment and decree is unexceptional and hardly calls for interference by this Court. The availment of financial assistance and execution of documents by the defendant-Company in favour of the respondent-Bank has not been denied.
The grievance of the defendant-Company in main is, that entries reflected in the statement of accounts are fictitious and bogus; that mark-up claimed runs contrary to the contracted rate; that the documents available on record are silent regarding rate of mark-up; that the machinery was not supplied to the defendant-Company in time on account of which the Company suffered losses and that in view of the suit filed by the company against the Bank for recovery of damages, a good case for grant of leave was made out but unfortunately all these factors escaped notice of the learned trial Judge which has resulted in grave miscarriage of justice. The learned counsel added that matter has been dealt with in a mechanical manner without application of judicious mind and leave has been refused on flimsy grounds. The submission of the learned counsel carry no weight.
The learned counsel has not been able to point out any wrong or bogus entry in statement of accounts, creating doubt in one's mind regarding its authenticity. The statement of accounts has been prepared in accordance with the Bank record and it has been verified as required by law.
Adverting to the objection regarding levy or rate of mark-up, we find that mark-up has been duly highlighted in the sanction advice and it has been charged at the contracted rate. The mere assertion of the learned counsel that loan was without mark-up or that rate of mark-up claimed is exorbitant, without a positive attempt on his part to substantiate the same is of no consequence.
The next objection of the learned counsel that the plaint has not been filed by a competent person, is also without substance. The plaint has been duly verified and affirmed on oath by Khawaja Abdul Wahid, Manager, Allied Bank of Pakistan Ltd. G.T.Road Branch, Peshawar City. So far as the guarantees are concerned, defendants Nos,2 to 14 as guarantors have obtained two loans and executed necessary documents as such they are liable for repayment of the amount as guarantoRs, The learned counsel for the appellants further contended that the loan stands fully secured by the mortgagees, therefore, leave should have been granted to the defendants to defend the suit. This argument also appears to be without force as the securing of loan by a mortgage, by itself, cannot be a ground for granting of such leave to the defendants.
8. In the result and for the foregoing reasons, we are of the view that the learned trial Judge has dealt with the matter in a proper manner and has recorded a well reasoned judgment. It is difficult for us to take a view different from the one expressed by the learned trial Judge.
9. Resultantly, finding no substance in this appeal we dismiss the same with no order as to costs.