' MIAN SAQIB NISAR, J.--Respondent filed a suit for recovery of Rs.1,08,57,657.89 with mark-up against the appellant before the Banking Court Lahore on 8-12-2000. Appellant filed a leave application, which has been disallowed by the learned Court with the result that the suit had been decreed.
2. Learned counsel for the appellant at the very outset admits that an amount of Rs.62,24.605 is due from the appellant on account of finance involved in the matter, however, it is stated that there was no mark-up agreement between the parties, resultantly, the mark-up charged by the respondent/defendant is illegal and unlawful. It is also stated that through various tenders, the appellant had deposited the total sum of Rs.44,14,280 towards the discharge of his liability qua the above finance, but this amount has not been reflected in the account statement of the respondent, resultantly, on the above two issues, the appellant was entitled to the leave.
3. When confronted, learned counsel for the petitioner by relying upon letter dated 5-4-1998 stated that as per item No,4, the respondent-Bank was entitled to charge the mark-up, because the principal amount was not paid within the due time and original facility was converted into P.A.D.
Facility, which entitled the respondent for the mark-up.
4. As regards the adjustment of Rs.44,14,280 is concerned, it is stated that these amounts are duly reflected in the statement of account appended alongwith the plaint. However, when the account statement has been perused, the respondent counsel has not been able to identify as to the adjustment of this amount Rs.44,12,280. He however, has relied upon a letter dated 5-12-2000, signed by the branch Manager of the Bank, which is at page No,345 of the original file to show that the adjustment has been duly made.
5. We are afraid, this document is not the statement of A account, thus on the question whether the defendant-Bank was entitled to charge the mark-up and that the payment made by the appellant to the respondent, has been duly adjusted, the appellant was entitled to the grant of leave, 'resultantly, the appeal is partly allowed. Thus the judgment and decree of the trial Court is upheld to the extent of amount of Rs.62,24,605 and while granting leave to the appellant, as mentioned above, we also impose condition upon the appellant that such admitted amount be deposited by the appellant with the Bank within a period of two months from today and for remaining amount to contest the suit. It may further be held that if the aforesaid amount is not deposited with the Bank, this appeal shall be deemed to have been dismissed, disallowing the leave to the appellant to appear and defend the suit for determination of two issues, the case is accordingly remanded.