JAWWAD S. KHAWAJA, J.---This appeal impugns the judgment and decree dated 10-5-2001 passed by the learned Banking Court No,II, Faisalabad. The facts of this case are straightforward.
The respondent National Development Leasing Corporation Limited filed a suit against the appellants for recovery of a sum of Rs,15,97,380. It was alleged in the plaint that appellant No,1, namely Khan Muhammad Textiles (Pvt.) Ltd., had obtained lease finance from the respondent- Company for the acquisition of machinery. A lease finance agreement was, admittedly, executed by the aforesaid appellant. The remaining appellants Nos, 2 to 5 were impleaded in their capacity as guarantors on the basis of personal guarantees executed by them in favour of the respondent- Company. The execution of the lease finance agreement, personal guarantees and other security documents, has been admitted by the appellants. The learned Banking Court relying on the said admission, decreed the suit of the respondent-Company for a sum of Rs,10,33,121.
2. Before us learned counsel for the appellants, firstly argued that the suit of the respondent- Company had not been filed by a competent person. The argument in this behalf was that the respondent is a leasing Company and as such, does not have branches and as a further consequence, it has no Branch ManageRs, This assertion has no valid basis. Admittedly, the respondent-Company has a branch office at Faisalabad through which lease finance was made available to appellant No, 1 . The plaint itself shows that it has been executed by one Shehzad Afzal who is designated as the Branch Manager. In this view of the matter, we find no merit in the contention advanced on behalf of the appellant that the suit was not instituted by a competent person.
3. It was next contended by learned counsel for the appellants that the appellants had invested a sum of Rs,6,25,000 with the respondent-Company in the form of Certificates of Investment for a period of ten yeaRs, Profit at the rate of Rs,17.50% was claimed on the Certificates of Investment having a ten-year maturity period and 15% on Certificates of Investment having a period of maturity of five yeaRs, The rate of profit, we note, was claimed on the basis of terms offered by NDFC and not the respondent-Company.
4. Learned counsel for the respondent-Company contended that as per policy of the respondent- Company applicable profits was paid to appellant No,1 on the Certificates of investment. The said amount, at the request of appellant No,1, was credited to the account of the said appellant towards adjustment of the lease finance. This assertion is borne out from the letter dated 10-12-1992 addressed by the appellant to the respondent-Company authorizing the adjustment of accrued profit against outstanding lease rentals.
5. Learned counsel for the respondent-Company also produced in Court, relevant record to show that no discriminatory treatment was meted out to the appellants in respect of the rate of profit on their Certificates of Investment. Even prime customers of the respondent-Company such as Wyeth Laboratories, were paid the same rate of profit as was paid to the appellants. The rate of profit paid by some other company such as NDFC, to its customers can have no relevance in the present case. We find that no amount can be claimed by the appellants as profits, in addition to the profit already paid by the respondent-Company, on the Certificates of Investment issued by it to the appellants.
6. In ground (e) of the application seeking leave to appear and defend, filed by the appellants before the learned Banking Court, the following figures have been worked out: Total lease amount payable by the applicantRs.30, 38, 740 Applicants have paid: Rs.10,85,550 Value of COIs Rs.8,75,000 Profit on COIs Rs.12,85,157 Total Amount Rs.32,45,707
7. We note that the amount of Rs,30,38,740 as the total sum of lease rentals for the period of the lease has been properly calculated. The amount of Rs,10,85,550 has also been paid by the appellants and is not disputed by the respondent-Company.
8. However, in respect of the value of the Certificates of Investment we note that the same is Rs,6,25,000 and not Rs,8,75,000 as claimed by the appellants. This is so because Certificates of Investment, which were issued by the respondent-Company for a sum of Rs,2,50,000 had a maturity period of five years starting from 26-9-1989 to 26-9-1994. It is this amount of Rs,2,50,000 which was rolled over. As such, the appellant has wrongly included the sum of Rs,2,50,000 in the value of the Certificates of Investment. The entire principal amount of the Certificates of Investment with profit accrued thereon has been accounted for by the respondent-Company, in the statement of account filed with its plaint. The said amount was adjusted towards outstanding lease rentals.
9. In Clause (d) of Ground-D of the PLA the appellants have claimed that Certificates of Investment had been issued by the respondent-Company in respect of a further sum of Rs,2,50,000 for a ten years' period from 8-4-1989 to 8-4-1999. There is, however, nothing on record to substantiate this assertion. Upon being questioned, learned counsel for the appellant conceded that no Certificates of Investment were issued in respect of the sum of Rs,2,50,000 specified in clause (d) of Ground-D in the PLA. He, however, argued that the said amount represented lease key money which had been deposited by the appellants with the respondent-Company and on which the appellants were entitled to profits at the rate of Rs,17.50% per annum. On this basis a sum of Rs,4,37,500 has been claimed by the appellants as profits on the lease key money deposited with the respondent- Company.
10. We are afraid there is no basis in law or contract to allow this claim of Rs,4,37,500. The deposit of lease key money was part of the contractual arrangement between appellant No 1 and the respondent-Company. There was no stipulation of any profit being paid on the said amount. If, indeed, the said amount had been deposited against Certificates of Investment, the respondent- Company would have been obliged to pay profit thereon. However, the leasing arrangement between the appellant No,1 and the respondent-Company did not provide for any profit on the lease key money. It is, therefore, reasonable to assume that the respondent-Company had calculated the lease rentals keeping in mind the deposit of Rs,2,50,000 as lease key money without any liability to pay profit thereon. Since the appellant and the respondent-Company entered into a business relationship, it cannot be held, in the absence of contract, that the respondent-Company was liable to pay profit in respect of the lease key money.
11. Learned counsel for the appellants next stated that the respondent-Company had claimed penalty for delayed payment of lease rentals. He argued that under section 74 of the Contract Act, no penal amount was payable by the appellants without proof of actual damages, if any, suffered by the respondent-Company. This submission of learned counsel has no relevance in the present case because the penal amount claimed by the respondent-Company has not been awarded to it in the decree. Since no appeal or cross-objection has been filed on this issue by the respondent- Company, the decision of the learned Banking Court has attained finality.
12. For the foregoing reasons we find that the impugned judgment and decree are not open to exception. This appeal, as a consequence, is dismissed with costs.