' MIAN SAQIB NISAR, J.---Briefly stated the facts of the case are that respondent No,1, filed a suit for the recovery of Rs.6,14,410 against the appellant and the predecessor of respondents Nos.2 to 7; defendants moved an application for leave to appear and defend, which remained pending, when Financial Institutions (Recovery of Finances) Ordinance, 2001, came into force. According to the provisions of above section 10(12) of the Ordinance, the defendants were obliged to file an amended application for leave to appear and defend within 21 days, and in this regard, order was also passed by the learned Banking Court on 25-9-2001, but appellants moved an application on 20-11-2001, which was beyond the said period, resultantly, treating the application as barred by time, learned Banking Judge, has dismissed the same, as a result whereof, the Court decreed the suit in favour of the respondent-Bank.
2. Learned counsel for the appellant contends that the provisions of section 10(12) of the Ordinance 2001, are directory in nature; and in any case, if the amended application was not filed within a prescribed period, the earlier application for leave to appear and defend should have been considered as application under the Ordinance and decided.
3. We have heard learned counsel for the parties and find that the above provisions though requires that the fresh application for leave to appear and defend, shall be filed within 21 days, but at the same time, the appellant was at liberty to have made a statement before the Court for treating his earlier application to be an application under the Ordinance 2001, thus on such technical ground to knock out the appellant is most harsh and the rules for the dispensation of justice, resultantly, on account of above, to pass decree against the appellants was not warranted by law.
4. Anyhow, when required to satisfy us if on the basis of the previous application for leave to appear a case for leave was made out, learned counsel for the appellant states that in Ground No,2 of the leave application, it has been explained that respondent-Bank had made certain promises to the appellants for the disbursement of the amount more than that which was loaned, and as the appellants on the basis of such promises/understanding, had made further contracts with certain parties but when the Bank had refused to grant further limit, the appellants could not meet their contractual obligations with the third party, resultantly, suffered losses, therefore, on account of above, the Bank was not entitled to the decree. It is also stated that on account of incentive scheme by the State Bank of Pakistan, the appellants were entitled to certain benefits, though they did apply to the Bank within time to avail the incentive, but were refused the requisite relief. It is also argued that in order to substantiate their pleas in the leave to appear and defend application, the appellants had moved application to the Court for summoning certain record of the respondent-Bank, but this application for no goods reasons, has been declined.
5. Heard. As far as Ground No,2 taken in the application for leave to defend and appear is concerned, the same is illusionary and is not supported by any documentary proof on the record; Just moving an application for summoning certain documents, the existence whereof, was also not established, the appellants cannot be said to have made out a case for the leave. From the contents of the application at the best, it can be assumed that the appellants did apply for the enhancement of the limit, but it is not even their case that the request was acceded to and any contract for enhancement of the limit was entered into between the parties. It is also stated that the Bank in this behalf made an assurance. Now if on the basis of the above without getting the approval and in the absence of a formal agreement between the parties, the appellants entered into further contract with the third parties and suffered losses, that in no way effect the right of the Bank to recover the amount admittedly financed to the appellants.
6. As regard the question that the appellants were entitled to any relief under an incentive scheme, this is so denied by the respondent, and it is not even established on the record, if the application for availing the incentive, approached the Bank within the time prescribed and fulfilled the preconditions and was otherwise entitled to any such scheme. No reference to any scheme has been made before us.
' In the light of above, we are unable to agree with the learned counsel for the appellants that substantial questions of law or facts were raised in the application for which evidence was needed, thus the case should be remanded to the Court below for decision afresh. Resultantly, this appeal has no merits and the same is hereby dismissed.