' MIAN HAMID FAROOQ, J.---The appellants/ defendants, through the filing of the present appeal, under section 22 of the Financial Institutions (Recovery, Finances) Ordinance, 2001, have called in question judgment and decree dated 8-1-2002, whereby the learned Banking Court, after finding that the appellants have not raised any substantial issue in their application for leave to defend the suit, dismissed the said application and consequently passed a decree for the recovery of Rs.59,43,321, in favour of the respondent-Bank and against the appellants, jointly and severally.
2. Briefly stated the facts leading to the filing of the present appeal are that the respondent-Bank filed a suit for the recovery of Rs.59,43,321, against the appellants, before the Banking Court, which was contested by them by filing an application for leave to defend the suit, which was succeeded by the amended application for the grant of leave to defend the suit under Ordinance, 2001. After hearing the learned counsel for the parties, the learned Judge Banking Court came to the conclusion that the appellants have not raised any substantial issue in their application for leave to defend the suit, thus, dismissed the application and resultantly proceeded to pass a decree for the recovery of Rs.59,43,321, against the appellants, on 8-1-2002, hence the present appeal.
3. Learned counsel for the appellants, while referring to Section 11 of Ordinance, 2001, has contended that as the appellants admitted the claim of the respondent-Bank to the extent of Rs.4 million, therefore, the learned Judge Banking Court should have passed an interim decree in respect of the admitted amount and decided the rest of the claim after granting leave and framing issues.
Confronted with this, learned counsel for the respondent-Bank has not much to say except to support the impugned judgment.
4. Even today, the learned counsel for the appellants, under the instructions of one of the appellants, has stated before us that out of the suit amount the appellants still admit the claim of the respondent-Bank to the tune of Rs.4 million. In this perspective, it would be relevant to refer to section 11 of Ordinance 2001, which, inter alia, provides that if the dispute between the parties does not extend to the whole of the claim and part of the claim is undisputed, the Banking Court shall pass an interim decree in respect of the undisputed amount and shall decide with respect to the disputed amount after granting leave to the defendant and framing issues. In view of the contention raised by the learned counsel and the admission of the appellants regarding partial claim of the respondent-Bank to the tune of Rs.4 million, we are of the view that the case, as made out by the appellants, clearly falls under the purview and scope of section 11 of Ordinance, 2001. We feel that the learned trial Court instead of outrightly dismissing the application ought to have decided the suit under section 11 of Ordinance, 2001. In the present scenario, to our mind, the impugned judgment is not sustainable as it is contrary to the aforesaid provisions of law, thus, we have no hesitation in setting aside the same.
5. In view of the above, the present appeal is allowed and the impugned judgment and decree is set aside, with no order as to costs. Resultantly, the respondent-Bank's suit and appellants' leave application shall be deemed to be pending before the learned Banking Court, which at the first instance, in view of the undisputed claim of the respondent-Bank to the extent of Rs.4 million, shall proceed under the provisions of section 11 of Ordinance, 2001 and thereafter to decide the suit, in accordance with law.