GHULAM RABBANI, J.---The appellant has called in question the judgment and decree dated 26- 2-2000 passed by Judge Banking Court No, V, Karachi whereby the suit bearing No,556 of 1999 instituted by respondent-Bank has been decreed in the sum of Rs,11,02,600 with mark-up at the latest rate of banking companies from the date of the suit till payment and with costs.
2 Precisely, the facts of the case are that the respondents are a Banking Company incorporated under the Companies Act, 1913 with registered office at State Life Building, I.1. Chundrigar Road, Karachi with a branch known as M.A. Jinnah Road Branch. The respondent-Bank instituted a suit against the appellant for recovery of an amount of Rs,11,65,551 with future mark-up at the latest rate of State Bank of Pakistan from the date of the institution of the suit till final recovery of the entire decretal amount. The case of bank, in nutshell, is that the appellant was provided a transport finance facility of Rs,7,75,710 repayable with marked-up price of Rs,12,54,751 for the purchase of a Hino 77-174-LA Truck Chassis subject to joint registration of the vehicle in the names of the plaintiff- Bank and defendant/appellant. Said amount of Rs,12,54,751 was made repayable by her to the bank on/or before 31-12-1999 in 84 equal instalments being buy back/purchase price. To secure the payment, a promissory note and other documents including finance agreement, were also executed by the appellant/borrower in the sum of Rs,12,54,751; in favour of the Bank. The defendant/appellant only paid an amount of Rs,85,200 and failed to discharge her full liability by stipulated date. The bank, therefore, instituted the above suit with the prayer as above.
3. The defendant/appellant appeared and filed an application for leave to defend the suit which was dismissed on merits vide orders dated 9-2-2000. Consequently the Trial Court decreed the suit by the impugned judgment with following observations:-- "However, the learned counsel for the plaintiff with the assistance of an officer of the plaintiffs bank has re-calculated the amounts and submitted a statement of break-up of accounts which shows that a sum of Rs,11,02,606, as detailed below is due and payable by the defendant:- (a)Transport loan facility availed as per Sr. No 1 referred above.Rs.7,75,710 (b)Total agreed make-up for 7 years loan facility as per Sr. No 2 referred above.Rs.4,12,096 (c)Less total repayment in monthly instalments up to28-9-1993Rs.85,200 Total Rs.11,02,606 In view of above, I decree the plaintiffs suit against the defendant in the sum of Rs,11,02,606 with mark-up at the latest rate of the Banking Company from the date of the suit till payment and with costs."
4. Contentions of learned counsel for the appellant are that the defendant/appellant availed the financial facility of loan and purchased a truck but unfortunately it was snatched away by dacoits on 23-10-1993, for which a crime was got promptly registered and therefore, appellant stopped making any payment. His contention is that since the said truck was insured with an insurance company it was the liability against the insurance company who were primarily responsible for payment of the amount of financial facility. He submitted that the insurance company namely, Dada Bhai Insurance Groups vide letter dated 20th August, 1995 issued by the Manager Claims of the said Insurance Company showed their willingness to pay up an amount of Rs,6,50,000 and Rs,85,200, stood already paid by the appellant, therefore, the Bank at the most could claim the rest of the amount of money actually defrayed to her. He submitted that any claim over and above that amount viz. Rs,7,75,710, is not her liability because on 23rd October, 1993, the truck was snatched and the appellant in fact did not make use of the same. He submitted that all the levies including charging of mark-up at least from the day when the Insurance Company offered to pay their liability in the sum of Rs,6,50,000 could not be claimed by the plaintiff-Bank from the appellant. He added that had the Bank accepted the offer of the Insurance Company, the matter could have been settled by recovering remaining amount of one lac rupees from the appellant, which, she was willing to pay. His further contention is that the plaintiff/respondent have charged fixed mark-up at 15% which is not allowable because such fixation suggests recovery of interest and not the mark- up.
4-A. Learned counsel for the respondent has controverted the above submissions. His contention is that the appellant is under legal obligation to pay the amount which she has undertaken under the agreement dated 28-3-1993 and the promissory note executed by her. He added that both these documents show that the appellant is to pay Rs,12,54,751 and after deducting the amount of money paid by her viz. Rs,85,200 the appellant was under liability to make payment of Rs,11,69,551, therefore, the suit was rightly instituted against the appellant. He contended that the Manager (Claims) of Dada Bhai Insurance Company while making the offer of Rs,6,50,000 had also informed the appellant who did not come forward to propose settlement of her liability on such offer, in whatever manner, which reflects adversely on her intention therefore, she cannot raise such plea at this stage specially when the suit has been decreed as a consequence of dismissal of appellant's application for leave to defend on merits.
5. We have given our anxious consideration to the submission of both the learned counsel and have, with their assistance examined the material available before us.
6. Availment of financial facility and execution of the promissory note and the agreement dated 28th March, 1993 are not denied. These two documents clearly indicate that the appellant had agreed and taken upon herself to make payment of Rs,12,54,751. Copies of the same have been placed on record by the appellant himself. It is also an admitted position that the appellant has paid only Rs,85,200. Learned counsel has produced copy of letter dated 20th August, 1995 of Manager (Claims) of Dada Bhai Insurance Groups addressed to the UBL with copy to the appellant.
It is neither the case of the appellant that before Trial Court he had disputed the receipt of this letter nor learned counsel for the appellant, during the course of arguments before us denied that this letter was not received by the appellant. On being asked whether the appellant has taken a plea before trial Court that she was not under liability to make payment of the levy of the mark-up from the date of the afore-mentioned letter dated 20-8-1995, learned counsel has candidly agreed that no such plea was taken before the trial Court. He has, however, referred to para. 11 of the memo. Of appeal in a feeble attempt to show that such plea has been taken at the appellate stage. Part-II is reproduced as follows:-- "II. That the Trial Court did not apply its mind properly that the respondents are guilty of mixing the loan facility with finance facility only in order to somehow save themselves from limitation. That the suit is not maintainable and is time-barred."
From the above, we do not find the appellant to have taken the afore-mentioned plea. Objection of learned counsel that Bank illegally charged the mark-up fixed at the rate of 15 per cent. Per annum illegally and that such charging tantamounts to interest is also immaterial for the simple reason that the documents viz. Promissory note and the agreement for financing clearly indicate that the appellant had undertaken to pay Rs,12,54,751. He had only paid Rs,85,200, whereafter she appears to be under obligation to pay the, suit amount of Rs,11,69,551.
7. Trial Court has passed the decree as a consequence of dismissal of application of applicant for leave to defend the suit. During the course of arguments learned counsel for the appellant has 'not said a single word to challenge the said order or to say that it was passed illegally or improperly. In our humble view, after dismissal of that application of the appellant, refusing to permit her to defend the suit, Trial Court was left with no option but to decree the suit. In the circumstances, we do not find any merit in this appeal and dismiss the same with no order as to costs alongwith listed application.