' CH. IJAZ AHMAD, J.---Brief facts out of which the present appeal arises, are that the respondent- Bank filed suit for recovery of Rs.1,817,062 alongwith liquidated damages, costs and up to date mark-up before the Banking Court No,III, Lahore. The appellants filed an application for leave to defend which was dismissed by the Banking Court and consequent thereto decreed the suit vide impugned judgment and decree dated 24-2-1999.
2. Learned counsel for the appellants submits that the respondent-Bank did not file the suit in terms of section 9 of the Banking Companies (Recovery of Loans, Advances Credits and Finances)
Act, 1997, inasmuch as the plaint is not supported by the statement of account. He further submits that the respondent-Bank mentioned in paras.2 to 6 that the loan facility was availed by the appellants from 1992 to 1994, and that the properties of the appellants were mortgaged with the respondent-Bank on 2-11-1994, however, it did not attach a single document in support of the contents of the plaint. He has added that the respondent-Bank has attached the documents relating to the year 1995, therefore, the Banking Court erred in law to assume the jurisdiction.
3. Learned counsel for the respondent-Bank submits that the appellants did not deny the documents, attached with the plaint, in their application for leave to defend. He further submits that the appellants had paid some amount to the respondent-Bank, which clearly shows that the appellants have accepted their liability, therefore, the Banking Court was justified to entertain the suit and decided the case against the appellants on the basis of the documents attached by the respondent-Bank with the plaint. He further submits that the statement of account is also certified by attaching a certificate alongwith the statement of account.
4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is better and appropriate to reproduce section 9(1) of the aforesaid Act and contents of statement of account, filed by the respondent-Bank alongwith the plaint, to resolve the controversy between the parties, which read as under:-- "9(1) Where a borrower or a customer or a banking company commits a default in fulfilling any obligation with regard to any loan or finance the banking company or, as the case may be, the borrower or customer, may institute a suit in the Banking Court by presenting a plaint duly supported by a statement of account which shall be verified on oath in the case of a banking company by the Branch Manager or such other officer as the Board of Directors of a banking company may authorize in this behalf."
Statement of Accounts.
Particulars Withdrawals Deposits Balance Principle 13,84,038 13,84,038 Mark-up till 28-2- 19975,60,700 19,44,738 Mark-up for 210 days1,45,324 20,90,062 C E D 29,986 21,20,048 Amount Adjusted 2,73,000 18,17,062 ' Admittedly, the respondent-Bank has attached with the plaint the documents relating to the year 1995, reportedly executed by the appellants, which do not fmd mention in the plaint. The Bank did not plead its case on the basis of these documents. Respondent-Bank did not attach a single document relating to the period in question, mentioned in the contents of the plaint. We are of the view that in the absence of documents pleaded in the plaint and on the basis of documents relating to the year 1995, the suit could not have been decreed. This fact brings the case in the area that the plaint was not duly supported by the statement of account, which was also not verified in terms of section 4 of the Bankers' Book Evidence Act, 1891, which is a condition precedent in terms of section 9 of the aforesaid Act.
5. Statement of account produced on record, as mentioned above, was not verified as such the same could not be used as a piece of evidence against the appellants. In arriving to this conclusion we are fortified by the law laid down in Messrs Jawed Rice Mills v. National Bank of Pakistan 1991 CLC Note 244 at page 190. It is settled principle of law that the requirement of reasonable hearing means a fair opportunity to meet the main case set up by the other side and the desire to administer justice, fairplay and equity cannot be enforced in a manner to ignore the technicalities altogether. On such principle even evidence which comes on record and is found contrary to or beyond the pleadings is required to be discarded out of consideration as the law laid down in Amir Ali v. Mrs. Alima Ahmad PLD 1981 Karachi 150 and Citibank v. Tariq Mohsin Siddiqui and others PLD 1999 Karachi 196. It is pertinent to mention here that the appellants also did not deny the documents attached with the plaint before the Banking Court in their application for leave to defend.
' In view of what has been discussed above, we accept this appeal, set aside the impugned judgment and decree, meaning thereby that the suit, filed by the respondent-Bank, and the application for leave to defend, filed by the appellants, shall be deemed to be pending adjudication before the Banking Court. The Banking Court is directed to allow the parties to file documents in support of the contents of the plaint and the application for leave to defend and thereafter decide the case in accordance with law within a period of three months from today.
Parties are directed to appear before the Banking Court on 16-3-2004, who is directed to decide the same as expeditiously as possible. Parties and their counsel are directed to cooperate with the Court so that the case could be finalized as expeditiously as possible. In case any of the parties would not cooperate with the Banking Court to decide the controversy between the parties as expeditiously as possible then the Banking Court shall invoke the penal provisions against that party so that the matter would be finalized within the prescribed period.