' Records have been received and gone through with the assistance of the learned counsel.
2. On 31-1-2001, respondent No,1 filed a suit against the appellants and respondents Nos, 2 and 3. It was stated in the plaint that the appellant No,1, through appellants Nos,2, 3 and 4, pursuant to a resolution passed by its Board of Directors, approached respondent No,1 for lease of the equipment mentioned in para. 4 of the plaint. The request was allowed by respondent No,1 on the terms and conditions stated in letter, dated 26-5-1996 which terms and conditions were accepted on behalf of appellant No,l. The lease agreement was executed on 5-6-1996. The equipment was delivered against the receipt issued by the appellants Nos,2 and 3. Several other documents mentioned in para. 8 of the plaint were also executed monthly rent was settled at Rs,55,695 for 36 months. It was stated that the appellant No,1 failed to pay the said rents regularly. The facility was re-scheduled on the terms and conditions stated in a letter, dated 31-10-1997, which terms were accepted on behalf of appellant No,1. Consequently a supplementary lease agreement was executed on 22-10- 1997. This agreement was to take effect from 31-10-1997 and the repayment was to start on 15-3- 1998. The rate of monthly rent was fixed at Rs,78,000. Several documents mentioned in para. 11 of the plaint were also executed. It was then stated in para. 12 of the plaint that no payment whatsoever was made after 15-3-1998 and until 15-9-1999 which was the agreed date of the expiry of the lease agreement even thereafter till the filing of the suit. The demand for Rs,19,41,602 was detailed in para. 12 of the plaint. It was then stated that a legal notice was served on 15-9-1999 but neither a reply was given nor the lease equipment were surrendered. With these averments a decree in the sum of Rs,19,41,602 was prayed for with further prayer for the payment of future rents from the date of institution of the suit till the realization of the decretal amount and also for recovery of the leased property.
3. Notices were issued to the defendants in the suit. In response to the said notices, appellants Nos,1, 2, 4, 5 and 7 filed an application for leave to defend the suit. This application was resisted by respondent No,1. The learned Judge Banking Court-II, Lahore heard the matter on 4-11-2000 and after dismissing the said application decreed the suit, as prayed for.
4. The learned counsel contends that the sale-deed, dated 5-6-1996 which is the basis of the said buy-back lease agreement is not properly stamped. According to the learned counsel, the document cannot be looked into till such time that it bears appropriate stamp duty; that the letter of guarantees were obtained in blank and as such are void; Relies upon the case of S. Perumal Reddiar v. Bank of Baroda and others (AIR 1981 Madras 180). Vehemently argues that the plaint was not competent without a statement of account in terms of section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and. Finances) Act, 1997 and the suit was liable to be dismissed on the said ground. Then contends that cognizance has not been taken of the objection as to the authority of the person who had filed the suit. Relies upon the case of National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Karachi 260). Finally states that the late payment charges were in the nature of a penalty and could not have been awarded without recording of evidence.
5. We have gone through the application filed by the appellants (except appellant No,3) before the learned trial Court. A perusal of the said application reveals that no denial whatsoever stands spelt out in the said application vis-a-vis the following specifically stated facts in the plaint:--
(i) The lease of equipment by the respondent No,1 to the appellant No, 1 .
(ii) The delivery of the equipment.
(iii) The terms of the lease.
(iv) The fact that the amount was not paid-back in the terms stated in the lease agreement, execution whereof is not denied by the appellants.
(v) The execution of the supplementary lease agreement and the terms thereof, that no amount whatsoever has been paid in terms of the said supplementary lease agreement w,e,f, 15-3-1998 and
(vi) The equipment is still being retained by the appellants.
' Apart from the above, we do not find any statement in the said application as to what prevented the appellants from paying the agreed rents in the manner stipulated.
6. When confronted with the said situation, the learned counsel refers to the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163) to urge that all his clients were required to show was that some question of fact or law is to be decided in the suit. We are afraid that this argument of the learned counsel is misconceived. The said judgment has been delivered with reference to the A provisions of Order )(XXVII, rule 3, C.P.C. Under section 10 of the said Act, the leave to defend is to be granted by a Banking Court only if "serious and bona fides disputes" is raised by means of an application to be filed by the defendant in a suit filed by Banking Company under section 9 of the said Act.
7. Coming to the said first contention of the learned counsel. He explains that the document is to be stamped as a conveyance as defined under section 2(10) of the Stamp Act, 1899. We are not inclined to decide as to whether or not the said sale-deed requires to be stamped in accordance with Article 23 of the Schedule to the Stamp Act, 1899, at the moment. However, we will proceed on the assumption that the argument is correct. Now there is nothing in the said Stamp Act, 1899 to spell out that a document not bearing the requisite stamp duty would be void. The instruments not duly stamped are dealt with .Under Chapter IV of the said Act of 1899. Section 33 of the Stamp Act, 1899 lays down that where any instrument, chargeable in his opinion with duty, is produced or comes in the performance of function of every person having by law or consent of the parties to receive the evidence, he shall impugn the same in case it appears to him that such instrument Is not duly stamped. Section 35 of the said Act further provides that such a person shall not admit in evidence any such instrument till such time that it is duly stamped. Further that such an instrument shall not be acted upon registered or authenticated by the person or by any Public Officer till such time that the duty is paid. Section 38 of the said Act, 1899 provides a manner in which an impounded instrument is to be dealt with. Section 40 defines Collector's powers to stamp the instrument so impounded or received by him under section 38(2)of the said Act. Needless to state that the occasion never arose to look into the said document as there was no denial of the same and its contents. There was no dispute regarding it and as such there was no need to produce the same in evidence. I may here refer to the leading opinion of Justice Dorab Patel (as his Lordship then was) in the case of Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279), appearing at page 284 of the said report. His Lordship thus observed:- "I would now examine section 35 in some detail. It prescribes that no instrument, which is not properly stamped, shall be admitted in evidence for any purpose... Or shall be acted upon...' Now merely because an instrument cannot be admitted in evidence for any purpose as because it cannot be acted upon by the persons specified in the section, does not mean that such an instrument is invalid, and it is not irrelevant to observe here that the words which I have quoted have to be construed strictly, because they are to be found in a provision of penal nature.
Therefore, it would be against all cannons of construction to enlarge the meaning of these words, so as to render invalid instruments which fall within the mischief of the section. After all, instruments, which are not duly stamped are executed every day, but I venture to think that most persons, who incur obligations under such instruments, honour their liabilities under such instruments, regardless of the provisions of section 35. In any event, this section is attracted only when an instrument is produced before the persons specified in the section. But, for example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instruments not properly stamped, it would have made express provision in this respect, and it would also have provided some machinery for enforcing its mandate in those cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section."
' Accordingly the said contention of the learned counsel is rejected.
8. As regards the contention with reference to the statement of account appended with the plaint, we have already referred to the contents of the plaint above. The claim of respondent No,1 is based on the allegation that according to the terms of the supplementary lease agreement, not a single penny was paid up to 15-.3-1998. Statement of accounts are available at pages 185 and 187 of the trial Court file. At page 187, is a statement which we find is duly certified in terms of the Bankers'
Book Evidence Act. It pertains to the period 5-6-1996 to 20-6-1997. According to its contents the monthly rent stands paid on the dates stated therein. According to the statement at page 185, this document is also verified in the manner stated above and contains entries as to the amount due each month starting from 15-3-1998; that it has not been paid; the late payment charges and then the net amount payable. Here again we confronted the learned counsel with the application for leave to defend where there is no assertion that the entries or the contents of the said document are not correct. The larned counsel states that these statements had not disclosed that the amount was disbursed to all the appellants. The contention is misconceived. In the first instance, according to the admitted position on record it was a buyback lease arrangement. Admittedly the equipment stood delivered to the appellants, and they were required to pay the rents. The two said statements contained entries regarding the rents that have been paid as also the rent that has not been paid. There is no assertion that any amount was paid by the appellants and that it does not find reflected in the said statements. We are, therefore, not inclined to entertain the said plea of the learned counsel.
9. Coming to the said objection as to the authority of the person filing the suit, we find that the objection raised in the P.L.A. Was that the person filing the suit was not duly authorised by the plaintiff and the plaint is bad as requirements of section 9 of the said Act (XV) of 1997 have not been fulfilled. We find that the plaint duly narrates that the plaintiff is suing through its duly authorised agent, namely, Fazal-ur-Rehman Bajwa. The statement is contained in para. 15 of the plaint and the Power of Attorney has also been placed on the record. This is a registered document and it authorised the said Fazal-urRehman Bajwa and one Asif Rasheed, inter alia, to file the suits.
The plaint is signed and verified by the said person. The objection has been duly considered by the learned trial Court and answered in the impugned judgment. We may state here that the objection as stated in the P.L.A. Is shorn of particulars and to our mind the said statement contained in the plaint read with the said registered document authorizing the said persons to file the suit does answer the objection of the learned counsel.
10. As to the objection to the said late payment charges, we find that the provision for the payment of the said charges has been duly made in the agreement between the parties itself. Here again in the absence of any foundations laid in the said application that the charges were not payable and for the reasons stated, the objection is simply not entertainable and has been rightly turned down and cannot be entertained.
11. No other point has been urged. The R.F.A. Is dismissed in limine.