IN THE HIGH COURT OF SINDH AT KARACHI

 

1st Appeal No. 39 Of 2009

 

Present:

 

Mr. Justice  Muhammad Ather Saeed, and

Mr. Justice Irfan Saadat Khan.

      

 

For the Applicant:         Mr. Samsam Ali Raza, Advocate.

 

For the Respondent:     Mr. Khalid Mehmood Siddiqui, Advocate

 

Date of hearing:            01.04.2011.

 

JUDGMENT

 

IRFAN SAADAT KHAN, J: This 1st Appeal has been filed against the Judgment dated 28.09.2009 in Suit No. 225/2008 by the Banking Court No. IV at Karachi.

2.         Briefly stated the facts of the case are that the appellant made an application for obtaining a credit card and signed the application form containing the terms and conditions prescribed by the bank in this regard. Pursuant to said application the appellant was issued credit card bearing No. 5471-7530-0294-0008 and the appellant started availing the finance facility provided in the said card. It was agreed by the appellant that he will pay to the respondent the minimum payment of amount (5% of outstanding balance) on the due date specified on the statement bill / account. However the appellant violated the said terms and failed to pay the due amount and the outstanding demand, as per bank, stood at Rs. 269603/- against him. Upon non-payment of this amount the respondent/ bank filed a suit against him. Notices were served upon appellant by way of publication in daily “News” and “Nawa-e-Waqat” dated 24.11.2008. Notices were also issued to the appellant through bailiff, who in response to the said notices appeared before the Banking Court and filed his application for leave to defend.

3.         The Banking Court then after hearing the counsel representing the bank who is respondent in this case, and the appellant who was respondent before the Banking Court, came to the conclusion that the claim of the bank regarding the availing of finance facility remained uncontroverted as the appellant contested the suit without providing any evidence in his support. The Banking Court observed that the claim made by the bank was based on proper documentary evidences, thereafter, the Court rejected the application of the present appellant for leave to defend and as a consequence thereof allowed the suit. It is against this order that the present appeal has been filed.

4.         Mr. Samsam Ali Raza, Advocate appeared on behalf of the appellant and reiterated the submissions made by him before the Banking Court and submitted that huge service charges have been imposed on the appellant which according to him was unjust. He submitted that the appellant has paid more than 70% of the availed amount however could not controvert the fact that the appellant defaulted in making the stipulated payment and the claim lodged by the Bank was correct. He however, submitted that mark up amount may be reduced but did not cite any law, in support of his claim that whether the claim lodged by the bank was either erroneous, illegal or was not based on proper calculation, but has made the request simplicitor that the mark up amount may be substantially reduced, keeping in view the hardship faced by the appellant.

5.         The learned Counsel further argued that the suit filed by the bank before the Banking Court was filed through a person who was not a duly authorized attorney of the bank. He submitted that Mr. Amir Nayyab Khan S/o Nayyab Ahmed Khan, who has signed the documents on behalf of the bank, was not authorized person hence the Banking Court was not justified in entertaining the suit filed by the bank in this regard. He submitted that although he had raised a question in his leave to defend application about the authority of the person filing the suit to file it but the leave to defend was dismissed without any finding on this point. He however conceded that this issue was not mentioned in the contents of the present appeal filed by him. In support of his above contentions the learned Counsel has relied upon a decision in the case of Haji Muhammad Mirza V/s MCB reported as 2002 CLD 426.

6.         Mr. Khalid Mehmood Siddiqui, Advocate appeared on behalf of the bank and at the very outset submitted that this appeal is not maintainable as the present appeal appears to be a mercy petition rather then an appeal. He submitted that it is an admitted fact that a finance facility was availed by the appellant and as per the terms and agreement signed by him at the time of obtaining the credit card he was legally obliged to fulfill his commitments. He further submitted that the appellant has no where stated that the bank had demanded something which was either illegal or do not carry the sanctity of law behind it. He further submitted that the calculations made and submitted by the bank admittedly were not denied but only a vague request had been made to reduce the same on compassionate grounds which could not be allowed.

7.         While replying to the second argument the learned Counsel produced before us the Power of Attorney issued by the bank in favour of Mr. Amir Nayyab Khan S/o Nayyab Ahmed Khan dated 2nd January 2008. He submitted that as per the contents of the suit filed by the bank before the Banking Court, it has clearly been stated that this suit was being filed through the attorney Amir Nayyab Khan S/o Nayyab Ahmed Khan who was the duly authorized attorney of the Bank. Hence according to the learned Counsel the issue now raised by the appellant is not only an after thought but also frivolous. In support of his contention the learned Counsel has relied upon a decision given by a Division Bench of this Court, in which one of us namely Irfan Saadat Khan, J was a member, in the case Karim Dad Khushk V/S UBL (PLD 2010 Karachi 158). In the end the learned Counsel submitted that the present appeal being without any merit is liable to be dismissed.

8.         We have heard both the learned Counsel and have perused the record and the decisions relied upon by them.

9.         It is apparent from the record that the appellant requested the bank for sanctioning credit card which was duly granted to him by the bank. It is also an admitted fact that the appellant despite utilizing the said credit card facility has failed to pay back the amount in the prescribed manner and has thus not fulfilled the legal obligations placed upon him.

10.       It is a trite proposition of law that whenever a person defaults in fulfilling his legal and financial obligations, the bank or the financial institution, as the case may be, is entitled to receive and recover the amount from that person. It is also an admitted position that till the filing of suit the appellant was required to pay a sum of Rs. 269903/- to the bank, out of which Rs. 44,934/- was the sum of liquidated damages which was quite rightly disallowed by the Banking Court.

11.       The appellant availed the finance facility in the sum of Rs. 3 Lac and paid a sum of Rs. 210,499/- only to the bank. Due to default in payment of amount the outstanding amount shoot up to Rs. 435,168/- out of which if the paid amount is deducted, the outstanding amount would come to Rs. 224,669/- and the Banking Court in our view quite rightly decreed the suit in the said amount plus cost of funds from the date of default till payment of cost of the suit. We have also observed that no illegality has been pointed out in the order passed by the Banking Court rather the counsel of the appellant has candidly conceded before us that he has neither challenged that the amount was not outstanding against him nor he has challenged that there is any defect in the calculation made by the bank but had prayed that the said amount may be reduced on compassionate grounds. Be that as it may, suffice is to observe that decisions are always to be made by looking at the facts and circumstances of the case and in the present case no justifiable reason has been pointed out by the learned Counsel for the appellant to disturb the order passed by the Banking Court. Hence no relief, in view of the present facts and circumstances of the case, on compassionate ground alone could be granted.

12.       So  far  as  the  second  argument of the learned Counsel for the appellant is  concerned  that  the  person who  has  signed the documents submitted before the  Banking  Court  was  not  an  authorized  person,  we  would  like  to  state that perusal of the record clearly shows that the person who has signed the documents was an authorized person and no interference in this regard is warranted. Moreover at this juncture we would like to reproduce the observations made by the bench of this Court in the case of Karim Dad as under:-

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. Messar ESS EMM ESS Corporation Pakistan Ltd and 5 others 2005 CLD 854”.

                                                                                                           

13.       We therefore, in view of the observations made supra and in the light of the decision given by the bench of this Court are of the considered view that no case of interference, with regard to the order passed by the Banking Court has been made out by the appellant. The present appeal therefore is found to be bereft of any merit and is hereby dismissed. The order passed by the Banking Court thus  is hereby affirmed.

14.       Above are the reasons for our short order dated 1.04.2011 through which we have dismissed this appeal.     

 

 

Judge

 

Judge

Karachi

Dated ______ April 2011.