' MIAN HAMID FAROOQ, J.---Messrs Madina Rice Mills etc, the appellants, through the filing of the present first appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, hereinafter called as an Act, have called in question judgment and decree dated 1-3-1999, whereby the learned Banking Court passed a decree for the recovery of Rs.11,63,259, against the appellants, including the amount of Rs.6,45,840 granted through the passing of interim decree dated 29-11-1998.
2. Admitted facts are that the appellants availed the loan facility amounting to Rs.2 million under L.M.M. Scheme, floated by the State Bank of Pakistan, from the respondent-Bank and upon committing an alleged default by them, the respondent-Bank, on 18-10-1997, instituted a suit for the recovery of Rs.11,63,259, as on 30-9-1997, alongwith interest at the rate of 7% per annum with quarterly rests, before the Banking Court. The appellants submitted an application seeking leave to defend the suit, inter alia, pleading that the entries in the statement of accounts are beyond the contractual obligations and show fictitious amounts, that the interest imposed is excessive and against the injunction of Islam, that the statement of accounts has wrongly been verified, that the same is liable to be expunged being contrary to the terms of the agreement and that the suit is premature, which application was opposed by the respondent-Bank. Thereupon the learned Banking Court, after finding that the amount of Rs.6,45,840 is undisputed and the only dispute is with respect to the mark-up and other charges, in exercise of powers under section 11 of Act, 1997, proceeded to pass an interim decree for the recovery of Rs.6,45,840 with costs, against the appellants, jointly and severally, vide judgment and decree dated 20-11-1998. The said interim decree was not challenged by the appellants before the higher forum and instead thereof they immediately filed an application, before the learned Banking Court, seeking permission for the payment of decretal amount in instalments. Later on, the learned Banking Court, after hearing the parties, passed the final decree for the recovery of Rs.11,63,259 with costs, including the amount of interim decree of Rs.6,45,840, favouring the respondent-Bank, with the benefits of section 15 of the Act, 1997, vide judgment and decree dated 1-3-1999, hence the present appeal..
3. Learned counsel for the appellants has contended that the respondent-Bank is only entitled to recover interest at the rate of 7% but the rate of interest was illegally and unilaterally enhanced to 11%. He has further submitted that with the illegal enhancement of rate of interest and the application of compound interest, the respondent-Bank has piled up the colossal suit amount, which is not at all "due" against the appellants. Conversely, the learned counsel for the respondent- Bank, while supporting the impugned judgment, has submitted that the interim decree has attained finality and that upon committing default by the appellants in making repayments to the Bank, it had to make certain payments to the State Bank of Pakistan as penalties, therefore, bank is entitled to recover the said amounts from the appellants, as elaborated in the statements of account.
4. We have examined appellant's application seeking leave to defend the suit and find that the appellants did not raise the plea, now agitated by the learned counsel for the appellants, viz. Unilateral enhancement of the rate of interest from 7% to 11%. It is settled law by now that a litigant is precluded from raising altogether a new plea/ground before the appellant/ revisional Courts, which has not been agitated before the, lower forums.
5. As regards the interim decree dated 20-11-1998, admittedly, the same was not challenged by the appellants within the stipulated period. In view of section 11(2) of Act, 1997, interim decree, for all intents and purposes, is deemed to be a "decree" passed under Act, 1997 including the right of filing of appeal and initiation of execution proceedings. A decree passed under the provision of Act 1997 is appealable under section 21 of Act, 1997 within a period of thirty days from such decree. As noted above, no appeal was filed by the appellants against the interim decree within the prescribed period, therefore, to our mind, the same has attained finality and is a past and closed matter, therefore, cannot be agitated while challenging the final decree.
6. Another factor which has further persuaded us to maintain the interim decree, is that the appellants, after the passing of interim decree dated 29-11-1998, on 23-12-1998, filed an application before the learned Banking Court, seeking permission for the payment of due amount in instalments, thereby admitting the outstanding amount of Rs.6,45,840. It was specifically asserted by the appellants that they be permitted to pay the said amount in installments. It flows from the contents of the said application that after the passing of the interim decree the appellants on the one hand did not assail the said decree before this Court and on the other hand, while - acknowledging the correctness of the decretal amount, asked the learned Banking Court to allow them to pay the said amount in instalments. In view whereof we are of the considered view that the appellants acquiesced over the passing of the interim decree and are estopped and precluded from challenging the correctness of interim decree at this stage.
7. As regards the remaining amount of Rs.5,17,419, (Suit amount = Rs.11,63,259 Minus amount of interim decree = Rs.6,45,840 = Rs. 5,17,419), which is actually the disputed amount. We have examined the impugned judgment and find that the learned Banking Court without giving any findings on any of the controversy proceeded to pass the final decree without adverting to the respective stances of the parties. The only ground on which the impugned decree appears to have been passed, is that "if the amount is not paid in accordance with the schedule laid down in the sanction advice and can claim higher interest/mark-up due to the default of the defendants in the discharge of their liability". It is evident from the record that this was not even the case of the respondent-Bank as pleaded before the learning Banking Court. Even the arguments, now raised by the learned counsel for the respondent-Bank, are not contrary to the said findings. The learned Banking Court proceeded to decide the matter without pursuing the relevant record and, thus, the impugned judgment suffers from misreading and non-reading of record, hence we are not inclined to maintain the final judgment and decree.
8. There is another fact, which cannot be ignored at this juncture. The impugned judgment is a slipshod and devoid of reasons. The said judgment is not at all a "speaking order" and cannot be called a "judicial order" within the parameters set up by law. The tenor of the impugned judgment amply manifests that the learned Banking Court before saddling the appellants with the colossal liability has not even taken into consideration the record of the case and the pleadings of the parties. Even it has been enjoined upon an executive authority, as per section 24(A) of General Clauses Act, 1897 (inserted by General Clauses (Amendment Act, 1997, Act No,XI of 1997)) to give reasons for making the order. In view whereof, the judgment and decree dated 1-3-1999, to the extent of Rs.5,17,419, cannot be maintained and we are inclined to remand the case to the learned Banking Court for its fresh decision.
9. Upshot of the above discussion is that the present appeal is partly allowed and the judgment and decree dated 1-3-1999, only to the extent of Rs.5,17,419, as noted above. Is set aside with no order as to costs. The result would be that the Bank's suit, to the extent of claim of Rs.5.1-7,419, shall be deemed to be pending before the learned Banking Court, which shall decide the same, after hearing the parties and of course in accordance with law. Needless to mention that the interim decree dated 20-11-1998 for the recovery of Rs.6,45,850 stands -intact and holds the field.