' MIAN HAMID FAROOQ, J.---The appellants/ judgment-debtors, through the filing of the present appeal, have called in question judgment and decree dated 18-12-1995, whereby the then Banking Tribunal passed a decree for the recovery of Rs.7,87,523, in favour of the respondent, and against the appellants, jointly and severally with costs.
2. Facts leading to the filing of the present appeal are that the respondent filed a suit for the recovery of Rs.7,87,523, against the appellants, before the then Banking Tribunal (now defunct) alleging therein that the respondent has provided his equity support of Rs.3,50,000 to the respondent No,1 on the basis of a sanction letter, the defendant No,1 executed share sale agreement dated 23-11-1995, the defendants Nos.2 to 6 executed Buy Back Guarantee Agreement, a letter of lien, (pleading their individual shares) alongwith the undertakings and affidavits and they also executed memorandum of deposit of title deed dated 31-10-1984, in addition to creating pari passu charges on company's assets. It was the case of the respondent that appellants/defendants. Nos.2 to 6 guaranteed the minimum dividend of 13% per annum on the said support of Rs.3,50,000 and in case the company is not in a position to declare the dividends at the rate of 13%, in that case, the defendants shall pay the same or short fall thereof from their own resources. It has been averred in the plaint that the Equity Support was disbursed to the defendants and as they failed to fulfil their commitments and could liquidate their liabilities, thus, necessitating the filing of the suit for recovery.
3. Pursuant to the issuance of notice, under section 6(2) of Banking Tribunals Ordinance, 1984 (since repealed), the appellants/defendants filed reply to the show-cause notice, which was succeeded by two applications. Subsequently, the appellants filed another application under Order XIV, rule 2, C.P.C. With the prayer that the legal issue may be decided first. Ultimately, the then learned Banking Tribunal, after hearing the parties, decided the miscellaneous applications and after finding that no plausible defence has been made out by the appellants/defendants, rejected the reply to the show-cause notice and consequent thereto passed a decree for the recovery of Rs.7,87,523, in favour of the respondent, and against the defendants jointly and severally with costs vide judgment and decree dated 18-12-1995, hence the present appeal.
4. The learned counsel for the appellants has contended that Equity Participation is not a "Banking Company", as defined in section 2(a) of Banking Tribunals Ordinance, 1984 and no "Finance", as defined in section 2(e) of the said Ordinance, was availed by the appellants/judgment-debtors, therefore, the Banking Tribunal has no jurisdiction to adjudicate upon the suit, filed by the respondent. He has further submitted that as the total participation, made by the respondent, amounting to Rs.3,50,000 has been paid by the appellants, therefore, there is nothing left to be paid by the appellants. In this perspective, it has been prayed that the judgment and decree may be set aside.
' Conversely, the learned counsel for the respondent has submitted that the respondent is a "Banking Company", as the same has been included in the schedule annexed to the Banking Tribunals Ordinance, and that the respondent is entitled for the dividends, minimum at the rate of 13% per annum, and thus after the adjustment of a sum of Rs.3,50,000 paid by the appellants, still an amount of Rs.10,99,307 is outstanding against the appellants. In support thereof the learned counsel has placed on record, the statement of accounts.
5. "Banking Company" has been defined in section 2(a) of the Banking Tribunals Ordinance, 1984, inter alia, to mean a "Company" specified in the schedule annexed to the Banking Tribunals Ordinance, 1984. It flows therefrom that a "Company", which is not even defined in Banks (Nationalization) Act, 1974 and is not otherwise a "Banking Company" shall be deemed to be a "Banking Company", within the meaning and scope of Banking Tribunals Ordinance, 1984, if the name of the said company has been specified in the schedule. The learned Banking Tribunal, as is evident from the impugned judgment, found that by way of Notification No,F.2(39)IF-(RS)/83 dated 15-2-1987 the name of "Equity Participation Fund" has been included in the schedule of the Banking Tribunal Ordinance, 1984. Section 13 of the aforementioned Ordinance provides that the Federal Government may, by notification in the official Gazette, modify the schedule so as to add any entry thereto or omit any entry therefrom. The Federal Government, in exercise of its powers conferred under section 13 above, has included the name of Equity Participation in the Schedule attached to the Banking Tribunals Ordinance, 1984. In the above perspective, we are of the view that the respondent is a "Banking Company" within the scope of Ordinance of 1984.
6. Now coming to the next contention raised by the learned counsel, regarding the Finance, we, after having perused the definition of finance, given in section 2(e) of the aforenoted Ordinance, find that the "finance" includes any other mode other than an accommodation or facility based on interest and also includes guarantees indemnities and any other legal obligation "whether fund based or non-fund based". It flows from the definition of finance that any accommodation or facility under the system which is not based on interest is included in the definition of "finance". In the present case, admittedly, Equity Support was provided to the appellant No,1 on non-interest basis and thus it cannot be argued that no finance was provided to the appellant No,1, in view whereof, the contention raised by the learned counsel is misdirected, hence repelled. "Customer" has been defined in section 2(c) of the Ordinance, 1984 to mean a person, who has obtained "finance" from a Banking Company or is a real beneficiary of such finance and included surety and indemnifier.
' In the above perspective, it is manifestly clear that the respondent No,1 is a "Banking Company" and that the appellant No,1 is a "customer", who has obtained "finance" in the shape of Equity Support from the respondent No, 1 .
6. Section 6(1) of the Ordinance, 1984 provides that where a customer commits a default in fulfilling any obligation, a Banking Company may file a suit against such customer with Banking Tribunal. In exercise of those powers, the respondent-company filed a suit for the recovery against the appellants before the said Tribunal. In view of the above; no exception can be taken by the appellants either with regard to the assumption of jurisdiction by the learned Banking Tribunal or in respect of filing of the recovery suit against the appellants by the respondent on the basis of the finance.
8. So far as the payment of a sum of Rs.3,50,000 is concerned, the same has duly been acknowledged by the respondent in its statement, filed today.
9. Now adverting to the stance taken by the learned counsel for the respondent that even after the adjustment of a sum of Rs.3,50,000, the respondent is still entitled to recover a further sum of Rs.10,99,307, suffice it to say that the said stance of the respondent is in complete oblivion of the facts of the case and law on the subject. Admittedly through the impugned judgment. a decree for the recovery of Rs.7,87,523 was passed against the appellants/defendants, jointly and severally, with costs. No future mark-up or liquidated damages were awarded to the respondent, thus the respondent, as per the terms of the decree, is only entitled to recover the aforesaid sum alongwith the costs. The respondent neither filed any appeal against the said judgment nor any cross objections were preferred, thus the respondent is bound by the terms of the decree as it is, and is only entitled to recover the following amount and nothing more and nothing less. In this case, the costs of Rs.30,544 were awarded to the respondent, thus total recoverable amount from the appellants comes to Rs.8,18,067, of course, after deducting the payment made by the appellants after the passing of the decree i.e. a sum of Rs.3,50,000.
10. Although the learned counsel for the appellants has not objected to the statement of accounts, filed by the respondent alongwith the suit, yet we, of our own, have examined the statement of accounts and find that the respondent-Bank has charged a sum of Rs.1,21,110, as premium at the rate of 10% per annum for three years and 168 days. Upon the examination of the present record, we do not find any document authorizing the respondent-company to charge/claim the said amount from the appellants, thus to our mind, the respondent is not entitled for the said amount, thus the same is deleted from the suit amount.
11. In view of the above discussion, we find that the impugned decree needs modification. To our view now the respondent is only entitled for a sum of Rs.3,46,957, as tabulated below, and thus we are inclined to modify the decree to the extent that instead of a sum of Rs.7,87,523, the respondent- Bank is now only entitled to recover a sum of Rs.3,46,957 through the execution of the decree.
Decretal amount with costs Rs.8,18,067 Amount paid Rs.3,50,000 Premium Rs.1,2 1 110 Amount Rs.4.71,110 Decretal amount with costs Rs.8,18,067 Amount paid Rs.4,71,110 Total payment Rs.3,46,957
12. Upshot of the above discussion is that the appeal is partly allowed and the judgment and decree is modified, as indicated above, with the result that now instead of the decree for the recovery of Rs.7,87,523 with costs, the decree for a sum of Rs.3,46,957 is passed with no order as to costs.