IN THE HIGH COURT OF SINDH AT KARACHI

Ist Appeal No.40 of 2009

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

J U D G M E N T

Dates of hearing : 15^th, 18^th & 22^nd January 2010.

Appellant through : M/s Waqar Ahmed Siyal &

Tauseef Ahmed, Advocates.

Respondent through : Mr. Khalid Mehmood Siddiqui,

Advocate.

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GULZAR AHMED, J.:- By this appeal appellant has challenged the judgment and decree dated 15.9.2009 passed by learned Judge, Banking Court-IV, Karachi, by which the suit for recovery filed by the respondent was decreed.

Learned counsel for the appellant has contended that the appellant had applied to the respondent for grant of Car Loan, which was sanctioned and Purchase Order was issued by the respondent in favour of the appellant, which required making of down payment of Rs. 122368/-. He contended that as the appellant was not in a position to make such down payment, the appellant asked one Mumtaz Wassan to obtain cancellation of purchase order. He contended that the said Mumtaz Wassan instead of getting the purchase order cancelled, took the delivery of the car and this was done with collusion of bank staff. He further contended that statement of account filed with the plaint is not in accordance with Section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) and relied upon the case of KLB-E-HYDER AND COMPANY (PVT.) LTD. V/S NATIONAL BANK OF PAKISTAN (2008 CLD 576) and FAYSAL BANK LTD. V/S GENERTECH PAKISTAN LTD. (2009 CLD 856). He further contended that Purchase Order was conditional as delivery was to be effected on the instructions of customer and that the bank has not filed any document to show that car was delivered to the appellant. In this respect he relied upon the case of M/S PRIME ROAD WAYS & 2 OTHERS V/S UNITED BANK LTD. & 2 OTHERS (2005 CLD 1473). He contended that the appellant had made complaints to the bank as well as the police officials but nothing was done and then the appellant approached the Banking Ombudsman, who also filed the appellant’s complaint. He finally contended that the suit was not competently filed as the power of attorney was filed subsequently.

On the other hand, Mr. Khalid Mehmood Siddiqui, counsel for the respondent has contended that Mumtaz Wassan was not an employee of the respondent but rather a friend and roommate of appellant and that the appellant had availed the facility of Car Loan and was liable to make payment against such loan and that the statement of account was in accordance with the Ordinance and so also the suit was competently filed. He further contended that appellant has field some additional documents with the appeal, which he had not filed with the Banking Court and that the appellant has even suppressed the fact of making of complaint to the Banking Ombudsman and passing of order by it from the Banking Court. He further contended that appellant himself is an Audit Officer of Grade-17 in the Accountant General Office, Sukkur and that it is not possible that he did not knew the consequences of non repayment of the advanced amount to him.

We have considered the submission made by learned counsel and have gone through the record.

It appears that appellant had applied to the respondent for grant of Car Loan, which was sanctioned to him and Purchase Order was also delivered to the appellant. As the appellant failed to pay the installments, the respondent filed a suit for recovery with statement of account. The appellant filed an application for leave to defend the suit to which replication was filed by respondent. The application for leave to defend the suit was dismissed and suit was decreed by the impugned judgment and decree.

In the application for leave to defend the suit, the appellant has admitted the fact of availing the facility of Car Loan from the respondent and has not disputed the claim of respondent but has taken the plea that due to hardship and financial problems he had approached one Mumtaz Wassan, working with the respondent as Sale Agent in Car Financing Division, Karachi, who availed the facility of loan for the appellant and cancellation of Purchase Order and that the appellant paid Rs.6,000/- to the Agent of respondent towards cancellation fee of Purchase Order and also signed on a paper for further action. The appellant has further taken a stand that in September 2006 he learnt that Purchase Order has not been cancelled and respondent has delivered the car to some one else, upon which the appellant filed a complaint dated 15.9.2006 with the respondent against the Sales Officer with allegation that fraud had been played by the Sales Officer and action be taken against said Sales Officer and the car be recovered from him. The appellant has further taken the stand that he has filed complaint dated 03.5.2007, 28.5.2007 before DSP, Bin Qassim Town Karachi and SHO, Steel Town, Karachi against the Sales Officer and further compliant dated 10.5.2009 was also filed with the Chief of CPLC, Karachi. The appellant has further taken the stand that as no action was taken against the Sales Officer he filed complaint dated 11.6.2007 with the President of respondent. The appellant has further taken the stand that respondent has committed illegality and fraud by delivering the car to its Sales Officer and that he neither made down payment nor deposited the installment.

The respondent in its replication has specifically denied that Mumtaz Wassan was working with the respondent as Sales Agent. The respondent further denied making of complaints by appellant to the respondent or to the Police.

From above narration, it is apparent that appellant has not disputed the fact of availing Car Loan from the respondent and that he has received the Purchase Order. On receipt of Purchase Order, appellant claims that he has not deposited the down payment nor has deposited the installment and has rather allowed Mumtaz Wassan to have the delivery order changed to his own name and after this appellant remained quite and did not approach the respondent to ascertain as to whether the delivery order has been changed to the name of Mumtaz Wassan or not and as to what is the position regarding payment of dues. It is when the respondent contacted the appellant to pay the dues that appellant alleges to have sent the complaint regarding fraud having been committed by Mumtaz Wassan labeling him as Sales Agent of the respondent. In the letter dated 15.9.2006, addressed to the Zonal Manager of the respondent, filed as annexure ‘F’ with the appeal, the appellant has stated that “ I hereby further clarify that Mr. Mumtaz Wassan remained my class fellow, roommate at school and friend also, so on that basis I have committed a blunder of keeping blind faith on him which resulted in a fraud.” Thus as per appellant’s own assertion in his above letter he has made some transaction with Mumtaz Wassan being his class fellow, roommate and friend and without taking any action against Mumtaz Wassan, he has started blaming the respondent to the extent of alleging that its official had committed fraud with him. Appellant has also approached the Banking Ombudsman, who through its order dated 13.12.2007 informed the appellant that appellant has some mutual understanding with Mumtaz Wassan and bank has no involvement in the transaction and through further letter dated 15.7.2008 informed the appellant that as he has admitted having applied for loan and signing of bank documents, there is no fault and wrong doing by the bank and the case was closed.

On the point that the statement of account filed with the plaint is not in accordance with section 9(2) of the Ordinance, the learned counsel for the appellant has contended that it does not contain the account number. The appellant does not appear to have taken this objection in his application for leave to defend the suit. We have, however, examined the statement of account filed with the appeal as annexure ‘D’ and find that it specifically contains the number of account namely “Auto Loan # AUT-00049542”. The statement of account further carries the certificate as is required by sub-section (2) of section 9 of the Ordinance.

As regards the plea of the appellant that suit was not competently filed, the plaint itself shows that it is signed by Safeer Ullah Abbasi and Rizwanul Haq Siddiqui, who are Attorneys of the respondent. Merely for the reasons that copies of power of attorney were filed subsequently will not make the suit incompetent as it is now established law that even if the plaint is not competently filed, such anomaly can be rectified subsequently. Reference in this regard is made to the case of HABIB BANK LTD. V/S M/S ESS EMM ESS CORPORATION PAKISTAN LTD & 5 OTHERS (2005 CLD 854).

In view of such facts and circumstances available on the record and the law, there appears to be no basis for appellant to dispute his liability to the respondent. The judgments cited by the appellant counsel have no application to the case in hand as the facts and circumstances of those cases are different from the present one.

On 22^nd January 2010, after hearing the counsel for the parties, through our short order we have dismissed this appeal. Above are the reasons for the same.

J U D G E

Aamir/PS