1. ' The appellant filed appeal under section 22 of Financial Institutions (Recovery of Finances)
2. Ordinance, 2001 against the judgment and decree passed by the Banking Court No,I, Karachi, whereby the learned Banking Court decreed the suit for a sum of Rs.334,943 with cost of funds at 8% from the date of judgment till realization.
3. ' Brief facts of the case are that the respondent filed Suit No,6042 of 2000 in Banking Court No,I, Karachi for recovery of Rs.2,709,454 together with 20% liquidated damages and mark-up at the rate of 15% per annum. In the plaint the respondent alleged that the appellant is the customer/hirer, having its account with the respondent-Bank and applied for transport finance under the Prime Minister Transport Scheme on mark-up basis. The respondent allowed to the appellant transport finance facility of Rs.1,505,950 on mark-up basis at the rate of 15% on normal terms and _conditions of the Bank. The appellant as a security for the repayment of the said transport finance facility executed Agreement of Finance, viz. Promissory note, facility letter, letter of hypothecation, hire-purchase agreement. The respondent, in terms of the agreement, purchase for the appellant vehicle Hino bus, bearing Registration No,PA-0042, Engine No,12649, Chassis No,AK176-44324, Model 1992, make HiNo, In the plaint it is . Stated that the respondent made some payment in his account, but, however, failed to pay the instalments despite various demands and notices by the respondents. On the basis of these averments the respondent filed the suit. The appellant filed application under section 10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. In the said application the appellant stated on oath that the respondent has unlawfully and deliberately suppressed material facts that on or about 1-1-1996 the vehicle in question has been acquired/repossessed by the respondent-Bank through an authorized officer, namely, Peer Deedar Sarhandi, Assistant Vice-President and Incharge Vigilance Division, President, Secretariat, Head Office, Karachi and since then it is in possession of the respondent-Bank and if any amount is outstanding in the account book of the respondent - against the said vehicle stands adjusted. It is also stated in the application that after taking possession of the vehicle in question illegally by the respondent-Bank the officers of the respondent-Bank have sold it and misappropriated the sale proceeds which was more than the outstanding dues against the appellant. It is stated in the affidavit that the respondent-Bank had already initiated criminal proceedings against the said Officers by lodging F.I.R. No,19 of 1996 and challan has been filed before the Special Court (Offences in Banks) Sindh at Karachi. It is stated that the respondent-Bank is guilty of breach of hire-purchase agreement and respondent is not guilty of breach of any obligation of the agreement. It is stated that the market value of the vehicle in question was much more than the outstanding account against the appellant. The learned Banking Court vide judgment dated 3-5-2002 came to the conclusion that the appellant was liable to pay instalments up to the date of the vehicle was impounded and passed the decree for Rs.334,943 being amount of the instalments due up to the date of impounding the vehicle in question. The appellant preferred this appeal against the said judgment and decree.
4. ' We have heard Mr. Muhammad Tamaz Khan, learned counsel for the appellant and Mr. Amir Malik, learned counsel for the respondent-Bank.
5. ' At the very outset the learned counsel for the respondent could not contradict the facts that the vehicle in question was impounded by the respondent-Bank on 1-1-1996 and further that the officers of the respondent-Bank have misappropriated the same. On our query, the learned counsel for the respondent failed to reply that what was the market value of the vehicle in question on the date of impounding the same and further that the respondent-Bank is not in a position to return the said vehicle to appellant in case appellant paid the entire outstanding dues. In our opinion in order to claim the amount in respect of the vehicle, for which finance had been provided by the respondent-Bank, the respondent-Bank has to return the vehicle impounded to the appellant and or after disposing of the said vehicle in accordance with law and adjusting the sale proceeds against outstanding dues can claim for the shortfall. The respondent-Bank cannot maintain action against the appellant as admittedly the respondent-Bank is not in a position to return the vehicle impounded nor is in a position to adjust the value of the vehicle misappropriated by its staff. The respondent-Bank cannot maintain the suit against the appellant. On the contrary, we are of the view that it is for the respondent-Bank to reimburse the appellant for the losses sustained by the appellant due to wrong and illegal acts of the respondent-Bank. However, since the appellant has not filed counter-claim, the same cannot be granted.
6. ' For the foregoing reasons the appeal is allowed with costs and the listed application has become infructuous and stands disposed of as having become infructuous.