' Through the filing of the present appeal, under section 9 of the Banking Tribunals Ordinance, 1984, the appellants/judgment-debtors have called in question judgment and decree dated 4-1-1994, whereby the then learned Banking Tribunal passed a decree for the recovery of Rs,9,86,268 with costs and mark-up at the stipulated rate against the appellants.
2. Facts leading to the filing of the present appeal are that respondent-Bank on 23-9-1993, filed a suit for recovery of Rs,9,86,268 together with mark-up and liquidated damages, against the appellants, before the then learned Banking Tribunal, alleging therein that a banking facility/financial assistance was granted to the appellant, against the security of hypothetication of factory, machinery and the mortgaged properties, owned by the appellant No,2; the said facility was not liquidated by the appellants within the stipulated period and they failed to abide by the terms and conditions of the agreement/ document, thus necessitating the filing of the aforenoted recovery suit. Requisite notices, under section 6(2) of the Banking Tribunals Ordinance, 1984 were issued to the appellants and it appears from the record that they did file reply to the show-cause notices, together with an application seeking condonation of delay in filing the reply to the show- cause notices; however the learned Banking Tribunal, after finding that the reply to the show-cause notices is barred by time and that defendant No,2 has not turned up to account for the amount of debt, proceeded to pass a decree for the recovery of Rs,9,86,268 together with costs and mark-up, at stipulated rate, vide judgment and decree dated 4-1-1999, hence this appeal.
3. The learned counsel for the appellants has contended that the impugned judgment and decree was passed by the learned Banking Tribunal in complete oblivion of the facts of the case and law on the subject inasmuch as the application for the condonation of delay was not at all considered and no findings were rendered on the said application. He has further submitted that the suit filed by the bank has been decreed without adverting to the documents on record inasmuch as even the statement of accounts has not been taken into account. Conversely learned counsel for the respondent defended the impugned judgment by submitting that as the reply to the show-cause notices was barred by time, therefore the learned Banking Tribunal rightly passed the decree.
4. Upon the examination of the available record, we find that upon filing a suit for recovery of Rs,9,86,268 by the respondent-Bank, the Banking Tribunal issued requisite show-cause notices, as prescribed in section 6(2) of the Banking Tribunals Ordinance, 1984 for 12-12-1993, pursuant to the Issuance of the said notices, defendant No,2 appeared before the Banking Tribunal and on his request the case was adjourned. Strangely enough, although till the said date, no reply to the show-cause notices was filed yet the learned Banking Tribunal, instead of passing a decree against the defendants, as required under section 6(4) of the aforenoted Ordinance, proceeded to adjourn the case. As a matter of fact, as the defendants failed to file the reply to the show-cause notices within the period of 10 days therefore, the learned Banking Tribunal, in view of the aforenoted provisions of law, should have passed the decree, but the learned Banking Tribunal opted to adjourn the case, of course at the request of the defendants. However, subsequently, on 4-1-1994, the defendants not only filed the reply to the show-cause notices, but they also filed an application seeking condonation of delay in filing the reply to the show-cause notices, which was duly supported by an affidavit of defendant No,2. Admittedly, the said application was not decided by the learned Banking Tribunal, as we do not find any findings of the learned Banking Tribunal on the said application in the impugned judgment, either accepting or rejecting the said application.
Even no separate order on this application was passed by the learned Banking Tribunal. It flows therefrom that the learned Banking Tribunal passed the impugned decree without deciding the aforenoted application and the presumption would be that the said application is still pending.
Suffice it to say that the learned Banking Tribunal passed the impugned judgment and decree in complete oblivion of the record of the case and thus we are constrained to hold that the record has completely been misread by the learned Banking Tribunal. Even no reply to the said application was called for from the respondent-Bank and we do not find any counter-affidavit, filed on behalf of the respondent-Bank thereby controverting the contents of the application. We feel that the impugned judgment is liable to be set aside on this short ground.
5. Furthermore the record of the case manifests that the learned Banking Tribunal passed the impugned judgment without even looking into the record of the case and has mechanically passed the impugned judgment, thereby saddling the appellants with the clossal liability of the decretal amount. We have examined the statement of accounts, filed by the respondent-bank alongwith the suit, and find that a sum of Rs,1,64,778 has been debted to the account of the appellants as liquidated damages. It is settled law that the respondent-Bank is not entitled to recover the liquidated damages, if any case is needed Allied Bank of Pakistan Ltd., Faisalabad v.
Messrs Aisha Garments and others (2001 M LD 1955) can be referred. The learned Banking Tribunal even without taking into account the statement of accounts, which is mainstay of the case of the respondent-Bank, proceeded to decide the suit. We further find that certain mark-up entries are also questionable. However since we are remanding the case, therefore we have restrained ourselves to give any findings on the entries on the statement of accounts, except as mentioned above, and other allied matteRs,
6. There is yet another aspect of the case, which cannot be ignored. After the examination of the impugned judgment we find that the same is sketchy, slip-shod and devoid of reasons. The said judgment not at all a speaking order and cannot be called a 'judicial order' within the parameters set up by law. The tenor of the order amply manifests non-application of judicial mind and no reasons have been assigned by the learned Judge in coming to the conclusions. 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.
7. Hon'ble Supreme Court of Pakistan has time and again disapproved the passing of such perfunctory orders in the causes involving valuable rights of the parties. It is settled law that the judicial order must be a speaking order manifesting by itself that the Court has applied its judicial mind to the issues and the points of controversy involved in the causes. Furthermore, when the reasons would not be forthcoming, obviously the Appellate Court would be deprived of the views of the subordinate Court. In any way the impugned order, which is not a speaking order and devoid of reasons is not sustainable in law being in contravention of law declared by the Hon'ble Supreme Court of Pakistan in various cases like Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (PLD 1959 SC (Pak.). 272), Gouranga Mohan Sikdar v. The Controller, Import and Export and 2 others (PLD 1970 SC 158), Mollah Ejahar All v. Government of East Pakistan and others (PLD 1970 SC 173) and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others (1984 SCM R 1014).
8. In the above perspective, we are of the view that the learned Banking Tribunal has not decided the case in accordance with the established law on the subject and has committed grave legal errors in decreeing the suit in favour of the respondent-Bank, thus we deem it appropriate to set aside the impugned judgment and decree and are inclined to remand the same for fresh decision of the suit.
9. In view of the above the instant appeal stands accepted and the impugned judgment and decree dated 4-1-1994 passed by the learned Banking Tribunal is hereby set aside with no order as to costs. Result would be that the suit, filed by the respondent-Bank, and the reply to the show- cause notices and an application for the condonation of delay, both filed by the appellants, shall deem to be pending before the learned Banking Court No,2, Faisalabad, constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001, who is directed to decide the suit and the said application within a period of 3 months from today in accordance with law and after hearing the parties, who are directed to appear before the said learned Banking Court No,2 on 2-8- 2002.