' MIAN HAMID FAROOQ, J.--Instant appeal, instituted by the appellants/judgment-debtors, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, proceeds against judgment and decree dated 2-10-1997, whereby the then Banking Court rejected appellant's replies to the show-cause notices, refused to grant leave to defend the suit to all the defendants and consequently passed a decree for the recovery of Rs.77,89,487.88 with costs and future mark-up, against the appellants and respondent No,3.
2. Briefly stated the facts, giving rise to the filing of the present appeal, are that the respondent- Bank filed a suit for recovery of Rs.77,89,487.88 with future mark-up, against the appellants and the respondent No,3, before the then Banking Tribunal, asserting therein, that a finance limit of Rs.6,930 million, for the purchase of 6 Hino Pak Buses, was sanctioned in the name of Messrs Munaaf Anwar & Company" under Prime Minister's Scheme for Public Transport. The said partnership was dissolved, a new partnership by the name of "Messrs Munaaf Iftikhar & Company" was formed and on their request the said finance was transferred to the newly constituted firm. According to the plaintiff-Bank, the defendants availed the said finance facility, 6 Hino Pak Buses were delivered to them and necessary documents such as promissory note, letter of hypothecation, indemnity bond, letter of undertaking etc, were signed and executed by the defendants and delivered to the plaintiff-Bank. The defendants failed to fulfil their contractual obligations and did not liquidate the outstandings, thus, necessitated the filing of the suit for recovery, as noted above. In response to the summons, the appellants, being defendants Nos. 1 and 3, filed a joint reply to the show-cause notices, pleading therein, that the documents are void, they did not execute the agreement of finance and that most of the documents were signed, when they were blank. The respondent No,3/defendant No,2, filed a separate reply, submitting therein, that he was employ of one Atiq-ur- Rehman, who applied for the grant of loans, formed a fictitious firm and availed the total facility. It was his case that all the documents were manipulated by said Atiq-ur-Rehman and he has no nexus either with the execution of documents or with the financial facility, statedly, obtained by the firm. During the pendency of the proceedings, the appellants filed an application under section 151, C.P.C., praying therein, that the suit may be disposed of in terms of Circulars Nos.19 and 20, as the same are applicable to the case of the defendants and in view of those circulars, the plaintiff-Bank has no legal right to proceed with the suit. Ultimately, the then learned Banking Court, after considering the arguments of the respondent-Bank, respondent No,3 and the aforenoted application, filed by the appellants, proceeded to reject the replies to the show-cause notices, refused to grant leave to defend the suit to all the defendants and consequently passed a decree for the recovery of Rs.77,89,487.88 with costs and future mark-up, against the appellants and respondent No,3, vide judgment and decree dated 2-10-1997, hence the present appeal.
3. Learned counsel for the appellants has contended that during the pendency of the suit, although the appellants filed an application for the settlement of outstanding disputes, in view of the terms of Circulars Nos.19 and 20, yet the same was not decided in accordance with law by the learned Banking Court. He has further submitted that the learned Banking Court was under a legal obligation to dispose of the suit in terms of the circulars. He had added that during the pendency of the suit one vehicle was impounded by the respondent-Bank, therefore, the value of that vehicle is to be accounted for. Conversely, the learned counsel for the respondents, while referring to letter dated 7-7-1999, already on record, and interim order dated 8-7-1999, passed by this Court, in this appeal, has contended that although the appellants agreed to pay a sum of Rs.6 million under S.B.P. Incentive Scheme, as indicated by the learned counsel for the appellants, yet the judgment- debtors failed to pay even a single penny to the respondent-Bank. He has reinforced his arguments by submitting that the matter was settled under the aforenoted circulars, according to the request and desire of the borrowers judgment-debtors, but they refused to make the payments, calculated under the terms of the incentive scheme, themselves relied upon by the appellants. So for as, the seizer of one Bus is concerned, the plea of the learned counsel for the respondent-Bank is that the same was impounded and sold under the supervision of the learned Executing Court and the sale proceeds were credited in the account of the appellants.
4. In view of the arguments of the learned counsel for the parties and upon the examination of the available record, we do find that the appellants filed an application before the learned Banking Court, with the prayer that the suit may be disposed of in terms of Circulars Nos.19 and 20 as the same are applicable to the case of the defendants. It pre-supposes that the defendants admitted their liabilities and therefore, while acknowledging the outstandings, filed an application for the settlement of outstanding disputes regarding the finance. Record further reveals that the said matter was settled under the incentive scheme/circulars, relied upon by the appellants, and they agreed to pay the total sum of Rs.6 million, as full and final settlement. Not only this, but a schedule of payment was also arrived at between the parties where 10% of the above amount was to be paid on 28-2-1999 and the remaining amount was to be liquidated till 30-6-1999. However, the appellants did not adhere to the terms of said amicable settlement and, even according to the learned counsel for the appellants, they did not make the payments as agreed between the parties under S.P. Incentive Scheme, inasmuch as even 10% of the down payment, which was pre-requisite for the application of the aforesaid circulars, was not deposited by the appellants. It flows from the above that in fact, the respondent-Bank acceded to the stance of the appellants, the matter was settled under the incentive scheme/circulars, the outstanding dispute was resolved, and the borrowers/appellants agreed to pay the total sum of Rs.6 million and the schedule of payment was arrived at, but the appellants themselves backed out from their firm commitments and failed to pay any amount to the respondent-Bank. In view whereof, it cannot be legitimately argued that the defendants were entitled to take advantage of the said circulars.
6. We also find from interim order dated 8-7-1999, passed by this Court, that the learned counsel for the appellants, while arguing an application (C.M. No,1 of 1997) raised the same pleas, agitating before us, today, and when confronted with the arguments of the learned counsel for the respondent-Bank, viz. Although the matter was settled between the parties yet the appellants did not pay even a single penny, the learned counsel then showed his inability to deposit the said agreed amount.
7. In the above perspective, we are of the considered view that although the matter was settled, yet the appellants did not fulfil their commitments and, thus, failed to adhere to the terms of the agreement arrived at between them and the respondent-Bank, under the incentive scheme/circulars, on the basis of which the appellants are, today, agitating to resolve the controversy. The contention of the learned counsel is devoid of merits.
8. So far as the next contention of the learned counsel is concerned, according to the learned counsel for the respondents, the Bus was sold under the supervision of the learned Executing Court and the sale proceeds were credited in the account of the appellants. Undeniably the appellants are entitled for the reduction of the sale proceeds, therefore, in case the respondent-Bank has not credited the amount of sale proceeds in the account of the appellants, then the learned Executing Court shall deduct the said amount from the decretal amount-.
9. In the above backdrop, we have examined the impugned judgment and find that the same does not suffer from any legal infirmity and, thus, we are not inclined to unsettle the well-reasoned judgment, findings whereof are hereby maintained.
10. 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.