' MIAN HAMID FAROOQ, J.---This single judgment shall decide the present appeal (R.F.A. No,264 of 1998) and the connected appeal (R.F.A. No,108 of 1999), as common questions of law and facts are involved in both the appeals, the parties are the same and the appeals have arisen out of the same judgment.
2. Both the aforenoted appeals proceed against judgment and decree dated 1-7-1998, whereby the learned Banking Court passed a decree for the recovery of Rs.5,15,705 with costs against Muhammad Ajmal Khan, (appellant in R.F.A.No,264 of 1998), with the prayer that the said decree be set aside, while through the institution of the other appeal, U.B.L. Has prayed for the modification of the aforenoted decree so as to further include a sum of Rs.1,15,000 in the decree.
3. Briefly stated the facts leading to the filing of the present appeals are that at the request of Muhammad Ajmal Khan, U.B.L. Allowed a financial accommodation, under public transport system, for the purchase of two Mazda vans, which facility was statedly availed by the appellant and in acknowledgment thereof the . Defendant executed certain documents including agreement of finances, letter of hypothecation and letter of undertaking. The vehicles were purchased, and registered bearing Registration No, LPT-1710 and LPT-1709, in the joint names of the parties.
According to the appellant-Bank, as the defendant failed to liquidate his liabilities according to the stipulated programme, thus, necessitated the filing of the suit for the recovery of Rs.8,15,705, against the defendant, before the learned Banking Court. The defendant filed an application seeking leave to defend the suit, inter alia, pleading that the functionaries of the respondent-Bank got signed certain blank documents from the defendant, which were subsequently filled in by them; that certain manipulation and interpolation were made by the Bank in some of the charge documents and that as both the vehicles have been handed over to the Bank, therefore, nothing is due against the defendant. After hearing both the parties, the learned Banking Court rejected the application for the grant of leave to defend the suit, filed by the defendant, and while deducting the sale proceeds of one vehicle (LPT 1709) amounting to Rs.3,00,000, from the suit amount of Rs.8,15,705, proceeded to pass a decree for the recovery of remaining sum of Rs.5,15,705 with costs, favouring the bank, vide judgment and decree dated 1-7-1998. It was further directed by the learned Banking Court that the decretal amount shall be recovered by the sale of the other hypothecated vehicle (LPT 1710) and if still any amount remains unpaid, the same would be recovered from the other properties of the defendant. This judgment and decree has been assailed by the defendant with the prayer that the same may be set aside, while U.B.L. Has partly challenged the same decree with the prayer that the decree be modified so as to include a sum of Rs.1,15,000 in the decree.
4. . The petitioner, in the absence of his learned counsel, opted to argue the appeals himself. He submits that he signed certain documents when they were blank on the asking of the functionaries of the respondent-Bank; that certain manipulations have been made in the charge documents and that after the sale of the two vehicles, nothing is outstanding against him. In view whereof, he requests for the acceptance of his appeal and the dismissal of the appeal of the Bank. Learned counsel for the Bank has submitted that as a matter of fact the first vehicle was sold for Rs.1,85,000 and the learned Banking Court has erroneously deducted a sum of Rs.3,00,000 from the suit amount, therefore, according to the learned counsel the impugned decree may be modified, so as to enhance the decretal amount from Rs.5,15,705 to Rs.6,30,705. On a query raised by this Court, the learned counsel for the Bank has submitted that after the passing of the decree the Bank has sold the second vehicle for a sum of Rs.2,73,000 and the said amount may be deducted from the amount of decree.
5. As regards, the first contention of the appellant, suffice it to say that section 20 of the Negotiable Instruments Act, provides that where one person signs and delivers to another a paper stamped in accordance with law, either wholly blank or having written thereon an incomplete negotiable instrument, in order that it may be made, or completed into a negotiable instrument, he thereby gives prima facie authority to the person who receives that paper to make or complete it, as the case may be into a negotiable instrument for any amount. If any judgment is needed, case reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd and another PLD 1996 SC 749 can be referred. Furthermore, section 118 of the Negotiable Instruments Act, provides that certain presumptions are attached to the negotiable instrument, which, inter alia, includes that negotiable instruments were made or drawn for consideration and that every negotiable instruments bearing a date was made or drawn on such date.
6. Even if the contention under discussion raised by the appellant is taken to be correct, the same is of no avail to him, as in view of the aforenoted provisions of law, the defendant is estopped to challenge the legality, validity and genuineness of such documents. In this context it would be relevant to refer to the following reported cases as the principle laid down therein are completely attracted to the case in hand.
' Muhammad Sharif v. Muhammad Hasim Paracha and another PLD 1987 Karachi 76; S.K. Abdul Aziz v. Mahmoodul Hassan and 3 others 1988 CLC 337; Haji Karim and another v. Zikar Abdullah 1973 SCMR 100, Allied Bank of Pakistan Ltd. v. Messrs Gujrat Friends Traders and others PLD 1988 Lahore 166; Messrs United Bank Ltd. v. President Bazm-e-Salat and another PLD 1986 Karachi 464; Bazm-e- Salat and others v. Messrs United Bank Ltd PLD 1989 Karachi 150; Prudential Commercial Bank Ltd. v.
Hydari Ghee Industries Ltd. And 9 others 1999 MLD 1694 and Messrs Bank of Oman Limited v. Messrs East Asia Trading Co. Ltd. And 4 others 1987 CLC 288, can be referred.
7. Coming to the next contention of the appellant. We have examined the record and find that there is an overwriting in clause 3 of the agreement dated 23-.3-1993, so as to make the figure as
19. However, we are of the view that in over all scenario of the case, this plea would be of no avail to the appellant, as he has admitted the availing of the loan facility, execution of the documents, impounding of the vehicles and the sale. Furthermore, the stance taken by him is that as the vehicles have been sold, therefore, nothing is outstanding against him. We do not find any substance in this plea, thus, the same is repelled.
8. As regards the last contention of the appellant, admittedly, the proceeds derived from the sale of the first vehicle (LPT 1710) had already been adjusted by the learned Banking Court and after deducting the said amount, the decree, under appeal, was passed. However, in view of the admission of the learned counsel for the respondent-Bank to the effect that second vehicle (LPT- 1709) was also sold* and a sum of Rs.2,73,000 has been received by the bank from the sale thereof, we are inclined to modify the decree so as to further deduct the said amount of Rs.2,73,000 from the impugned decree as the vehicle was sold after the passing of the decree.
9. In view of the above discussion, we find that the appeal, filed by the appellant (R.F.A. No,264 of 1998) is devoid of merits, thus, the same is dismissed. However, the impugned judgment and decree stands modified, as noted above, in view of the statement of the learned counsel for the Bank.
10. Now coming to the appeal filed by the Bank, wherein it has been asserted that as a matter of fact the Ist vehicle was sold for Rs.1,85,000 but the learned Banking Court has erroneously deducted a sum of Rs.3,00,000 from the suit amount, therefore, the amount of Rs.1,15,000 may be added in the decree. Upon the examination of the record, we do not find that the said plea is substantiated from the record. The learned Banking Court has specifically held in the impugned judgment that one vehicle was auctioned at a lowest price of Rs.3.00,000. The Bank did not raise any objection to the said averment at any stage of the proceedings. It is settled law that a litigant cannot be allowed to raise a new plea before the appellate or revisional forum, which has not been agitated before the lower forum. The contention of the learned counsel is without any substance, thus, the same is repelled.
11. In view whereof, we do not find any merits in the bank's appeal and the same is also dismissed.
12. In view of the admission of the learned counsel of the Bank, we are inclined to modify the impugned decree, thus, now a sum of Rs.2,73,000 stands deducted from the decretal amount of Rs.5,15,705 and, therefore, now a sum of Rs.2,42,705 shall be recoverable from Muhammad Ajmal Khan. The decree stands modified in the said terms.
13. Upshot of the above discussion is that both the appeals are hereby dismissed with no order as to costs. However, the decree stands modified, as noted above.