Judgment Sheet
IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Ist Appeal No. D – 37 of 2018
Before:
Mr. Justice Muhammad Junaid Ghaffar
Mr. Justice Zulfiqar Ali Sangi
Appellants: Abdul Razak and another, through
Mr. Ashok Kumar K. Jamba,
Advocate.
Respondent No.1: United Bank Limited, through
Mr. Fareed Ahmed Soomro, Advocate.
Respondent No.2: Banking Court No.2 at Sukkur,
through
Mr. Muhammad Hamzo Buriro, Deputy
Attorney General.
Date of hearing: 25-08-2021
Date of judgment: 25-08-2021
J U D G M E N T
Muhammad
Junaid Ghaffar, J. – This Appeal under Section 22 of the Financial
Institutions (Recovery of Finances) Ordinance, 2001 (“Ordinance”) has been filed against judgment dated 30-08-2018 and decree dated
05-09-2018 passed by the Banking Court No.2 at Sukkur in Suit No.83 of 2017
(Old No.182 of 2012), whereby, the Suit has been decreed as prayed.
2. Learned counsel for
the Appellants has argued that the Suit of the Respondent-Bank was not
maintainable; that no proper statement of account was filed by the Respondent
in terms of Section 9(2) of the Ordinance; that requirement of Section 2(8) of
the Banker’s Books Evidence Act, 1891 was not fulfilled; that exaggerated
amount has been decreed; that the Suit was earlier dismissed for
non-prosecution and the restoration application was also dismissed; that
thereafter, another restoration application was entertained and Suit was
restored, which is an illegality; that the impugned judgment and decree are,
therefore, liable to be set aside. In support, he has relied upon Healthco
Surgical Supplies and 4 others v. Standard Chartered Bank (Formerly Chartered
Grindlays Bank, Anz Grindlays Bank (2006 CLD 1587), Bankers
Equity Limited and 5 others v. Messrs Bentonite Pakistan Limited through Chief
Executive and 7 others (2010 CLD 651), The Bank of
Punjab v. Fazal Abbas and another (2020 CLD 977) and an
unreported judgment of this Court dated 15-11-2017 passed in 1st
Civil Appeal No. D-05 of 2013 (Re. Javed ur Rehman and others v.
National Bank of Pakistan).
3. On the other hand, Respondent’s
Counsel has supported the impugned judgment and submits that the finance
facility has not been denied; that no evidence was led despite grant of leave
to defend application; that all requirements of Section 9(2) of the Ordinance
read with the Banker’s Books Evidence Act were complied with; therefore, the
Appeal is liable to be dismissed.
4. We have heard both the
learned Counsel and perused the record. Insofar as the objection that the Suit
was dismissed and was restored is concerned, we may observe that this is not a
subject matter of this Appeal as now judgment and decree have been passed;
therefore, in this appellate jurisdiction, we cannot attend to such objection.
As to availing of finance facility and default in payment is concerned, the
same appears to have been admitted in the leave to defend application and so
also while confronted in Court; therefore, to that extent we cannot go any
further.
5. As to decreeing an
exaggerated amount, we have confronted the Appellants’ Counsel that as to what
defence was taken by the Appellants before the Banking Court, and in support,
he has referred to leave to defend application. On perusal of the same, it
depicts that the same was not filed in compliance of Section 10(4) of the
Ordinance, which requires to state the amount of finance availed; the amount
paid along with dates of payments; and the amount if any which the borrower
disputes as payable to the Bank, and therefore, we are not sure as to how even
leave to defend was granted.
6. Be that as it may,
since the Appellants had admitted the finance facility and never assisted the
Court with any material as to the amount in dispute, more so, their failure to
lead evidence does not help them in any manner, and therefore, we are not
inclined to entertain this objection.
7. Lastly, as to
maintainability of the Suit and the filing of account statement purportedly in violation
of s.9(2)[1]
of the Ordinance read with S. 2(8)[2]
of the Banker’s Books Evidence Act, it would suffice to observe that such
argument is also misconceived inasmuch as the account statement was properly
certified to be true copy of the account(s) maintained by the Bank in the books
of accounts as required under the law and so also duly signed by the Manager
and Officer of the concerned Bank. The only objection, which has been raised,
is that names of the officers were not mentioned. In our considered view, this
would not render the account statement as meaningless or in violation of the
relevant provisions; therefore, this objection also fails.
8. As to non-filing of
a Board Resolution in terms of Order 29 CPC and filing of the Suit by an
incompetent person, once again, we have not been assisted as to how the
conditions of a Board’s Resolution would apply as the Ordinance being a special
provision provides in terms of section 9(1) that the plaint can be filed even
by a manager of the concerned bank or by any other person duly authorized by
way of power-of-attorney. The suit was admittedly filed on the basis of a power
of attorney. In like situation the issue stand settled and reliance in this
regard may be placed on the case reported as First Dawood Investment Bank
Limited v Bank Islami Limited (2020 CLD 49) approved by the Hon’ble
Supreme Court in the case reported as First Dawood Investment Bank Limited v
Bank Islami Limited (2019 SCMR 1925).
9. Lastly, and
notwithstanding the above, all these objections are even otherwise ill-founded
as admittedly the Appellants never turned up to lead any evidence; therefore,
no case is made out.
10. Accordingly, the
Appeal does not merit any consideration and was dismissed by means of a
short order in the earlier part of the day and these are the reasons thereof.
J U D G E
J U D G E
Abdul
Basit
[1] The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers Book, Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.”