ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.B-94 of 2009
Royal Bank of Scotland
Versus
Muhammad Nadeem
|
Date |
Order with signature of Judge |
For final disposal.
Date of hearing: 13.08.2012
Mr. M.A. Khan for the plaintiff.
None for the defendants.
-.-.-
2. Brief facts, leading to the filing of this suit, are that the plaintiff which is a banking company incorporated under the laws of Pakistan, is engaged in the business of providing finance to its customers, inter alia, consumer finance relating to and under the names of demand financing.
3. It is contended by the learned counsel for the plaintiff that the defendant has applied for finance facility which was sanctioned with conditions mentioned in the application. The defendant completely availed the subject finance facility on the conditions mentioned in the finance agreement under Account No.9320599009. The defendant pursuant to the said finance facility executed an agreement for financing on markup basis dated 22.03.2006 in favour of the plaintiff as a security.
4. In addition to the above, the defendant also created equitable mortgage in favour of the plaintiff by executing a memorandum of title deed for the amount and on the conditions mentioned therein and deposited the original title documents of the property bearing House No.C-29, Block-17, Improvement Scheme 16, F.B. Area, Karachi, with all its structure/construction in favour of the plaintiff. After availing the finance, it is submitted by the learned counsel, the defendant failed to repay and adjust the said facility, though the plaintiff repeatedly requested the defendant to adjust the outstanding liabilities but despite assurance and undertaking the defendant failed to respond. Consequently, the plaintiff filed the instant suit for recovery of the outstanding amount.
5. The notices and summons were served upon the defendant but the defendant chose to remain absent and the matter thus was fixed for final disposal.
6. By order dated 10.12.2009 the original documents were brought by the plaintiff’s witness which were seen and returned by this Court. By order dated 09.08.2012 learned counsel for the plaintiff was directed to furnish receipts of the sale consideration of the amount passed on to the seller of the property, however, it was subsequently at the time of arguments submitted by the learned counsel that on account of merger of the bank (plaintiff) the receipts were not available. Learned counsel, however, submitted that the statement of account submitted by the plaintiff depicts the correct picture of amount availed by defendant. Learned counsel also submitted that in terms of Schedule ‘B’, the defendant has agreed to pay the requisite outstanding through installments, which is also available on record.
7. I have heard the learned counsel and perused the material available on record. It appears that the defendant availed the finance facility in terms of the agreement of finance on markup basis vide agreement dated 22.03.2006. Since the defendant failed to respond and appear in this case, the matter is fixed for final disposal as no leave application was filed by the defendant. The plaintiff’s witness namely Rahim son of Muhammad Ali also filed affidavit in exparte proof which is in consonance with the contents of the plaint. Learned counsel has also filed a statement of account/breakup which reflects as under:-
|
Customer Name: Muhammad Nadeem |
Product DFBL |
Loan Number 8870457001 |
|
S.No. |
Date |
Amount |
|
|
April, 06 to Dec. 07 |
Rs.2,709,867.48 |
|
|
|
|
|
01. |
29th January, 08 |
Rs.176,041.31 |
|
02. |
1st March, 08 |
Rs.176,041.31 |
|
03. |
1st. April, 08 |
Rs.176,041.31 |
|
04. |
1st. April, 08 |
Rs.176,041.31 |
|
05. |
31st May, 08 |
Rs.176,041.31 |
|
06. |
28th June 08 |
Rs.176,041.31 |
|
07. |
31st July 08 |
Rs.186,109.11 |
|
08. |
29th October, 08 |
Rs.186,109.11 |
|
09. |
2nd February, 09 |
Rs.186,109.11 |
|
10. |
2nd February, 09 |
Rs.186,109.11 |
|
11. |
2nd February, 09 |
Rs.186,109.11 |
|
12. |
2nd February, 09 |
Rs.186,109.11 |
B. LOAN DETAILS:
Amount Disbursed PKR-14,600,000.00
Amount payable PKR-46,140,307.00
(In 240 months/installments)
C. DEFAULT DATE, 2ND FEBRUARY, 2009:
Default (Principal) PKR- 14,165,720.00
Default (Markup) PKR-171,169.12
Total Outstanding
As on 2.2.2009 PKR-14,336,889.12
8. It thus appears that the defendant has failed to repay and adjust the said facility though the plaintiff repeatedly requested the defendant to adjust the same.
9. It is submitted that the plaintiff as on 10.12.2009 is entitled for an amount of Rs.14,336,889.12 along with cost of funds and other charges are being claimed by the plaintiff.
10. From the perusal of the account it appears that the loan amount of Rs.14,600,000/- were disbursed which were agreed to be paid in 240 monthly installment which comes to Rs.46,140,307/- and the amount paid by the defendant, as reflected in the statement, is Rs.4,179,734/- excluding the markup from the date of default, the total outstanding comes to Rs.14,336,889.12.
11. As far as the case of the plaintiff regarding damages and liquidated charges is concerned, learned counsel has failed to prove the same. It is neither shown nor indicated in any document as to how the damages and liquidation charges had been claimed and calculated and how they are reasonable which amount is otherwise contrary to the provisions of Contract Act, 1872.
12. In view of the aforesaid facts and circumstances and in terms of the breakup and statement of accounts and keeping in view the fact that there is no rebuttal to the contents of the statement of account, I therefore decree the suit of the plaintiff in the sum of Rs.14,336,889.12. The plaintiff is also entitled to the cost of funds from the date of default till realization of the outstanding amount at the current rate as determined by the State Bank of Pakistan in terms of Finance Ordinance, 2001.
13. Consequently, the suit is converted into execution proceedings and the plaintiff/decree holder is directed to file particulars of mortgaged property and other assets of the defendant/judgment debtor, if any, for the consideration of this Court within four weeks.
Dated: 31.8.2012 Judge