' JAWWAD S. KHAWAJA, J.--This appeal impugns the judgment and decree dated 23-6-1999 passed by the learned Banking Court.
2. The facts of this case are relatively straightforward. The respondent Atlas Lease Limited filed a suit against the appellant-defendant for the recovery of a sum of Rs,1,92,48,194 as outstanding lease rentals together with mark-up and liquidated damages. The appellant-defendant filed an application under section 10 of Act XV of 1997 for grant of leave to appear and defend the suit. The said application was disallowed by the learned banking Court on the ground that no serious or bona fide defence had been raised by the appellant-defendant. The learned Banking Court, however disallowed the amount claimed by the respondent leasing company by way of additional lease rentals. As a consequence the suit was decreed for a sum of Rs,1,20,33,175 with costs.
3. In one sentence the learned Banking Court has disallowed additional lease rentals simply by stating that these are "opposed to public policy and are not permissible in law". Neither the public policy nor the law, mentioned in the impugned judgment, has been referred to.
4. Learned counsel for the appellant has argued that the appellant was, in fact, entitled to additional lease rentals on account of delay by the respondent Company in making timely payments of rent due from it. He has also argued that the learned Banking Court has not passed any speaking order, Before us it is a matter of conjecture if .The Banking Court had in mind the provisions of section 23 or section 74 of the Contract Act in, support of its finding that additional lease rentals are against public policy or are impermissible in law. Even if the Banking Court had these statutory provisions in mind, a decision could not have been given without evidence. A question as to what constitutes public policy as envisaged by section 23 and what constitutes penalty under section 74 of the Contract Act, are mixed questions of law and fact.
5. In the foregoing circumstances, we set aside the impugned judgment and decree to the extent of the additional lease rentals denied to the appellant. However, leave is granted to the respondents to the extent of the claim of the appellant in respect of additional lease rentals. For the determination of the appellant's claim for additional lease rentals the matter is remanded to the learned Banking Court for decision after allowing the parties to lead evidence.