' MIAN HAMID FAROOQ, J.---Present appeal proceeds against judgment and decree dated 12-12- 1998, whereby the learned Banking Court, after dismissing appellants' application for leave to defend the suit, passed a decree for the recovery of Rs.13,094,123, in favour of the plaintiff and against the appellants/defendants jointly and severally.
2. Precisely stated the facts of the case are that the respondent-Bank filed a suit for the recovery of Rs.13,094,123, against the appellants, before the learned Banking Court alleging therein, that defendant No,1 was allowed ADB loan facility of Rs.9.04 million (repayable in 14 equal half-yearly instalments plus interest at 14% per annum with quarterly rests) and demand finance facility of Rs.3,942 million for adjustment of defendant No, l's overdues, (repayable in 24 equal monthly instalments). In consideration thereof the defendants executed different documents in two loan accounts, as mentioned in para.5 of the plaint, and the property was also mortgaged. According to the respondent-Bank, the said facilities were availed by defendant No,1, however, the refusal to liquidate the total outstanding amount of Rs.13,094,123 (Rs.8,571,538 under ADB loan facility and a sum of Rs.4,522,585 under demand finance facility) necessitated the filing of the suit.
' Pursuant to the issuance of summons by the learned Banking Court, the appellants filed an application, under section 10 of Act XV of 1997, seeking leave to defend the suit, which was resisted by the Bank, however, the learned Banking Court, after hearing the parties, proceeded to dismiss the said application and consequently decreed the suit for recovery of Rs.13,094,123, in favour of the plaintiff and against the defendants, jointly and severally, vide judgment and decree dated 12-12- 1998, hence the present appeal.
3. Originally the appeal was filed by all the appellants, however, as is evident from order dated 29- 6-1999, the learned counsel for the appellants did not press the appeal on behalf of appellant No,1 and, thus, the appeal to that extent shall deem to be dismissed and the impugned judgment and decree qua the appellant No,1 remained intact.
4. Learned counsel for the appellants, while referring to the documents on record and admitting that the guarantees were executed by the appellants Nos.2 and 4 in working capital loan only, has submitted that suit could not have been decreed, as the appellants Nos.2 to 4 were sued in the capacity of the guarantors. He has further submitted that the guarantees in the ADB loan are forged and cannot be made basis for passing the decree against the appellants Nos.2 and 3.
Conversely, the learned counsel for the respondent, while referring to the contents of the appellants' application for leave to defend the suit, debt balance information slip and statement of accounts, has submitted that as a matter of fact appellants Nos.2 to 4 have admitted the claim of the respondent-Bank, inasmuch as the thumb-impression on the mortgage-deed has also been admitted by the said defendants.
5. As noted above, the principal debtor did not press its appeal and, thus, the impugned judgment and decree holds the field qua the appellants-Company and according to the learned counsel for the respondent-Bank the execution proceedings against the company are under way. According to the stance of both the parties, the rest of the respondents have been sued, as guarantors, on the basis of the guarantees, statedly, executed by them and were attached by the respondent-Bank alongwith the plaint. Out of those guarantees, the appellants Nos.2 and 4 have admitted that they executed the guarantees in respect of the financial facility allowed to the company in working capital loan. As the execution of the guarantees in the said account is admitted, therefore, the said appellants are liable to liquidate the amount granted by them in terms of the said guarantees. So far as, the guarantees, reportedly, executed by them in the ADB loan, those, of course, have been denied. In order to show that the said guarantees are forged, the learned counsel for the appellants has placed on record report of the Handwriting Expert. However, we are not inclined even to look into the said report because the matter was not referred to the Handwriting Expert under the directions of this Court, but it was a private arrangement between appellants Nos.2 and 4 and the Handwriting Expert even before filing the appeal in hand. At no stage the said report was made part of the record. Additionally, the said appellants neither placed on record the said report before the learned Banking Court nor the said report was the part or annex of the leave application, filed by the appellants. Confronted with these legal infirmities, the learned counsel for the appellants submitted that he would not press his argument on the basis of the report of the Handwriting Expert.
7. Now the question arises as to whether the said appellants have executed the guarantees, as claimed by the respondent-Bank or the same are forged or fabricated and fake, as agitated by the said appellants. It may be noted that the said defendants in their leave application, have not denied the sanctioning and availing of the financial facilities and their signatures on other documents as well. It is evident from the record that at the time of availing of the financial facility, as noted above, the principal debtor-Company, executed the charge document through defendants Nos.2 to 4, inasmuch as the properties of the company were mortgaged, which mortgage-deed was also thumb-marked by appellants Nos.2 to 4. Even according to the sanction letter dated 17-1-1994, which is admitted document between the parties, the securities to be furnished by the appellants were the registered mortgage, hypothecation of stock, joint registration of vehicles and "personal guarantees of all the directors of the company in their individual capacity". It is matter of common knowledge that the appellants could not have availed the financial facilities without fulfilling the terms of the sanction letter. It is evident from the record that appellants Nos.2 to 4 executed letter of continuity, letter of instalment, letter of disbursement and other documents, the execution whereof have not been denied by the said appellants. These appellants have baldly denied the execution of the guarantees in one account without any legal foundation and basis, completely forgetting that they have admitted their signatures on the other documents as well. The act of denial of execution of guarantees appears to be desperate attempt on the part of the said defendants to wriggle out of their contractual obligations and to save themselves from the liabilities incurred by them through the execution of the guarantees and other documents. To our mind, after the execution of documents and availing of different financial facilities by the appellant No,1, which appears to be a family concern of all the appellants, now it does not lie in the mouth of the appellants Nos.2 to 4 to assert that they did not execute the guarantees in one financial facility. Above all, the appellant No,1 by not pressing its appeal, has, in fact, conceded claim of the respondent-Bank.
8. Section 20 of the Negotiable Instruments Act, provides that where one person signs and delivers to another a paper stamped in accordance with law, either wholly blank or having written thereon an incomplete negotiable instrument, in order that it may be made, or completed into a negotiable instrument, he thereby gives prima facie authority to the person who receives that paper to make or complete it, as the case may be into a negotiable instrument for any amount. If any judgment is needed, the case reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749 can be referred. Furthermore, section 118 of the Negotiable Instruments Act, provides that certain presumptions are attached to the negotiable instruments, which, inter alia, includes that negotiable instrument, was made or drawn for consideration and that every negotiable instrument bearing a date was made or drawn on such date.
9. Even if it may be considered that the documents were given blank, as canvassed by the learned counsel of the appellants, even then in view of the aforenoted provisions of law the appellants Nos.2 to 4 are estopped to challenge the legality, validity and genuineness of the said document. In this context, it would be relevant to refer to the following reported cases, as the principles laid therein are completely attracted to the case in hand. Uhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Karachi 76, S.K. Abdul Aziz v. Mehmood Hassan and 3 others 1998 CLC 337, Haji Karim and another v. Zikar Abdullah 1973 SCMR 100, Allied Bank of Pakistan Ltd. v.
Messrs Gujrat Friends Traders and others PLD 1988 Lahore 166, Messrs United Bank Ltd. v. President Bazm-e-Salat and another PLD 1986 Karachi 464, Bazm-eSalat and others v. Messrs United Bank Ltd. PLD 1989 Karachi 150, Prudential Commercial Bank Ltd. v. Hydari Ghee Industries Ltd. And 9 others 1999 MLD 1694 and Messrs Bank of Oman Limited v. Messrs East Asia Trading Co. Ltd. And 4 others 1987 CLC 288.
10. We have also examined the statement of accounts pertaining to these accounts, maintained by the respondent-Bank in ordinary course of business, which is prima facie proof of the fact that the amounts, mentioned therein, are "due" against the appellants. The said appellants have not raised any objection to the statement of accounts or any of the entries contained therein. Even if there are any minor discrepancies in the statements of account, those cannot, in any way, disentitle the respondent-Bank from claiming the colossal suit amount. There is no denial of the fact by the appellants that the financial facilities were availed and certain amount is E outstanding, however, no counter-statement of accounts has been filed by the appellants to demonstrate that actually the said sum is outstanding against them. The statements of account, produced by the Bank, are certified in accordance with the provisions of Bankers Book Evidence Act, 1894 and the presumption of correctness is attached to such entries maintained by the Bank in the normal course of business, moreso, when there is no rebuttal to these statements of account. In the absence of any rebuttal on record, we are not inclined to disbelieve the statements of account, submitted by the respondent-Bank, which were not challenged by the appellants.
11. In the above perspective, we are of the considered view that even appellants Nos. 2 to 4 have not been able to make out a case warranting the interference in the impugned judgment, thus, the same is maintained.
12. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same stands dismissed with no order as to costs.