' SYED ZAHID HUSSAIN, J.---Suit for recovery of US$ 11375 with mark-up and liquidated damages instituted by the respondent-Bank was decreed by the learned Judge Banking Court, Sialkot on 24- 10-1998 like this, "for the recovery of US $ 11375 with future mark-up as prayed in the plaint". This is appeal thereagainst.
2. It is contended by the learned counsel that the learned Banking Court wrongly assumed the jurisdiction in this matter, which did not fall within its jurisdiction and that even the decree passed by it is illegal, as no mark-up could be awarded in the peculiar facts and circumstances of the case. Reliance is placed upon Habib Bank Limited v. Farooq Compost Fertilizer Corporation Ltd. And 4 others 1993 M LD 1571; National Bank of Pakistan v. Punjab Buildings Products Ltd. PLD 1998 Karachi 302 and Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 M LD 1351. It is however, stated by the learned counsel that the decretal amount excluding the mark-up has been paid by the appellant during the pendency of these proceedings. The learned counsel for the decree holder expressed his lack of information as to the payment claimed to have been made by the appellant. It is however, contended by him that the learned Banking Court had rightly assumed jurisdiction in the matter and the decree passed by it is legal. Reliance has been placed by him on National Bank of Pakistan v. Muhammad Ashraf Sanik and another PLD 1987 Lahore 17. According to him, the grant of mark-up/interest is obligatory in view of section 15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
3. We have perused the record and considered the respective contentions of the learned counsel for the parties and note that the suit brought by the respondent-Bank arose in somewhat unusual and peculiar circumstances. It was the case of the respondent-Bank that a remittance of US$ 9347 was received on 27-4-1995, which was credited to the account of the appellant who withdrew that amount leaving a balance of US$ 347 in his account. The case of the respondent-Bank was that through a clerical mistake, the credit entry of US$ 9347 was again shown and by the time this mistake was detected, the appellant had withdrawn that amount also. He was informed of this mistake and eventually the suit for the recovery was filed which as mentioned above was decreed by the learned Banking Court. The contention of the learned counsel for the appellant that despite the fact that cheque was issued by the appellant which was honoured by the Bank and payment made it was not a transaction covered by clauses (c), (d), (e) and (f) of section 2 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has not impressed us. In somewhat similar circumstances it was observed in National Bank of Pakistan v. Muhammad Ashraf Sanik and another (supra) that "where a person draws a cheque on a Bank for an amount in excess of the balance to his credit in his Bank Account and the Bank encashes the cheque in due course, a transaction of loan arises in law that is to say, the drawer shall be deemed to have asked for the loan/overdraft and the Bank shall be deemed to have advanced the same to the extent of excess. As such all considerations of justice, equity and good conscience shall prevail to preclude the drawer from denying his liability in respect of such a loan". The Banking Court has while adverting to this aspect observed with reference to clause (f) of section 2 of the Act that the case was covered by the said clause. Thus no exception can be taken to the view taken by the Court or the assumption of jurisdiction by it in the peculiar facts and circumstances of the case.
4. There is a finding recorded by the Banking Court that withdrawal was made by the appellant in excess of his entitlement and due. The perusal of the contents of reply to the show-cause notice submitted before the Banking Court and the tenor of ground of the appeal before this Court would show that withdrawal over and above the entitlement was not specifically denied, but the contributory conduct of the Bank's functionaries can also not be ignored i.e. Making of credit entries twice and. Then encashing the cheque. The question in this context arises as to whether the respondent/ plaintiff could be given premium for its own misfeasance and acts and omissions. The conduct of both sides indeed is not above board but the fact remains that the appellant had made withdrawal in excess of the amount due, which he was liable to return. The decree passed by the Banking Court to this extent calls for no interference,' however, we find that in the peculiar circumstances when there was no agreement even for the payment of any mark-up, the respondent-Bank was not entitled to claim the same. Reading of section 15 as a whole would show that the Court is not denuded of the power to examine and keep in view the circumstances, like the one, prevailing in this case. The decree passed by the Banking Court thus needs to be modified to that extent. The assertion of the learned counsel of the appellant that the entire payment minus the mark-up has been paid by the appellant since has neither been denied nor affirmed by the learned counsel for the respondent, we are not in a position to make any observation to that effect in these proceedings, except to observe that if there be any controversy thereabout, the Court executing the decree would attend to this aspect of the matter.
' By modifying the decree in the above terms, the appeal is accepted to that extent i.e. Mark-up and dismissed qua the principal amount. No order as to costs.