' MIAN SAQIB NISAR, J.---In a suit for recovery filed by the respondent-Bank against the appellants, the application for leave to appear filed by the appellants has been dismissed and the suit has been decreed to the tune of Rs.63,58,200 vide impugned judgment and decree dated 2-5-2002.
2. Briefly stated the facts of the case are that on 22-6-2001 the respondent-Bank brought a suit for the recovery of an amount of Rs.64,80,563 against appellant No,1, as the principal borrower and the other appellants as guarantors/mortgagers. The appellants filed leave applications through Mr. Shahid Ikram Siddiqui, which have been disallowed by the learned Banking Court and a decree of the amount of Rs.63,58,200 has been passed. Hence this appeal.
3. Before proceeding with the merits of the case, it may CM, be pertinent to point out that Khawaja Asif Mehmood, Advocate has filed power of attorney on behalf of appellant No,7 and it is stated by him that appellant No,7 had never engaged Mr. Shahid Ikram Siddiqui, Advocate, either before the trial Court or even in this appeal and therefore,. The said appellant accordingly filed an application before the trial Court to the effect that no notice was issued to the said appellant, resultantly, he could not file the leave application within time, because Mr. Shahid Ikram Siddiqui, Advocate before the issuance of the notice to the appellant had already filed a memo. Of appearance, followed by a power of attorney and thereafter a leave application but without any authorization.
4. On merits Mr. Shahid Ikram Siddiqui counsel for the appellants submits that the appellants before the learned Banking Court had moved an application under Order 11, rules 12, 14, 15 and 16, C.P.C. For the production of the original documents filed along with the suit and the learned trial Court vide order dated 16-12-2001 directed the production thereof, but subsequently the documents were never produced. This has caused serious prejudice to the appellants as their case in the leave application is that the documents have been got singed by the officials of the bank in blank and those were either subsequently filled or still the originals are in the blank form. It is further argued that the application for grant of loan in the present case was moved on 4-5-1999 and the sanction of the loan was made by the competent authority on 18-6-1999, but the agreement dated 4-5-1999, on the basis of which present suit was filed pertains to the amount of Rs.4.500 million, which amount was neither applied for by the principal borrower nor even sanctioned by the competent authority. It is also argued that in paragraph 3 of the plaint, it is stated by the plaintiff bank that the facility was subsequently enhanced to the tune of Rs.5.00 million, but there is no sanction advice. Resultantly, on the basis of the above, it is submitted that defendant No,1 had only availed the facility of Rs.3 million as per the sanctioned advice and the rest of the amounts shown in the statement of accounts are absolutely fake and fictitious.
5. We have heard the learned counsel for the parties. As far as the actual availing of the loan is concerned, which is a running finance facility, it is clear from the statement of account filed with the plaint that an amount of Rs.77,54,467 has been disbursed and withdrawn by the principal borrower, whereas an amount of Rs.27,55,000 has been deposited by the borrower in discharging its liability. Thus in view of the above, when confronted, learned counsel for the appellants states that he has no objection if a decree to the tune of Rs.49,99,467, the balance unpaid amount, is passed against the appellants. However, he has vehemently argued that the mark-up of Rs.8,50,000 and Rs.6,67,746 charged by the bank is not due from the appellants, on two grounds firstly that it is in excess of the agreed rate of mark-up and secondly it is beyond the contractual period, thus the appellants at least to the extent of the mark-up are entitled to the grant of leave.
6. As regards appellant No,7 is concerned Khawaja Asif Mehmood, Advocate has reiterated his submissions by further arguing that the said appellant had only guaranteed the amount of Rs.100,000 as per the mortgage-deed dated 28-9-1999 but because of the circumstances narrated above, the said appellant has not been provided appropriate opportunity to defend his cause. An application in this behalf moved by the said appellant has not been disposed of by the learned Banking Judge.
7. For the excessive and unauthorized charge of markup, in the statement of accounts appended along with the plaint, there are two entries, both dated 16-12-2000, as per which an amount of Rs.8,50,000, has been charged as a mark-up from 4-5-1999 to 30-6-2000, whereas another amount of Rs.6,67,746 is the mark-up for the period from 1-6-2000 to 30-4-2001. From the calculation point of view, it is not clear, if these two amounts correspond to the rate of mark-up, agreed upon between the parties whether these amounts have been calculated, keeping in view the various deposits made by the appellants from time to time. Resultantly, for the resolution of this dispute of excessive and unauthorized charge of mark-up, we find that the appellants had made out a case for the grant of leave. Consequently, by setting aside the impugned judgment and decree to the extent of the aforesaid amounts, the application of the appellants is accepted and they are granted leave to defend their case.
8. As for the arguments of Khawaja Asif Mehmood, Advocate qua appellant No,7 are concerned, suffice it to say that if the facts, mentioned above, and those given in his application before the learned Banking Court, are correct, obviously, the said appellant, had not been served, and therefore, would be entitled to the setting aside of the decree. Resultantly, we treat his application before the learned Banking Court as art application under section 12(2), C.P.C., with the direction to decide the application on the facts mentioned therein. Until the decision of the application, filed by appellant No,7, the decree against him shall remain suspended. However, if the application is allowed by the learned Court below, the whole decree shall stand set aside against him, who shall be entitled to file a fresh leave application, otherwise he shall be at par with the other respondents for the relief granted in this judgment.