IN THE HIGH COURT OF SINDH AT KARACHI

 

I.A. No. 53 OF 2013

         

                                        Present:-   

     Mr. Justice Aqeel Ahmed Abbasi,

                                          Mr. Justice Muhammad Junaid Ghaffar

 

 

M/s Meezan Bank Limited ----------------------------Appellant

 

Versus

 

Mrs.Parveen Sabir & another-------------------------Respondents

 

 

Date of hearing:                      13.1.2015

 

Date of Order:                          13.1.2015

 

Appellant                                Through Mr. Nabeel Kolachi, advocate.

 

 

O R D E R

 

Muhammad Junaid Ghaffar, J:-     Through instant appeal, the appellant has impugned order dated 5.8.2013 passed by the Banking Court No. IV, Karachi, in Suit No.304 of 2010, whereby, the application filed by the appellant under Section 152 read with Section 151 CPC has been dismissed.

 

2.         Briefly the facts of the case are that the appellant had filed a Suit bearing No. 304 of 2010 against the respondents under Section 9 of the Financial Institutions ( Recovery of Finances ) Ordinance, 2001, (“Ordinance, 2001,”) for recovery of Rs.33,165,599/- wherein, leave to defend application filed on behalf of the respondents was dismissed and Suit was decreed on 19.12.2011 in the sum of Rs.14,534,274/- inclusive of profit till July, 2010 and thereafter cost of fund, till realization of the funds of the decretal amount. Being aggrieved with such Judgment and decree, the appellant had preferred 1st Appeal No.68 of 2012 before this Court, which was thereafter withdrawn on 10.8.2012 on the ground that the appellant had already filed an application under Section 152 read with Section 151 CPC before the learned Banking Court No. IV, Karachi, seeking modification/correction in respect of sanctioned amount utilized by the respondents. Thereafter, such application has been dismissed by the learned Banking Court vide impugned order dated 5.8.2013 as referred to hereinabove.

 

3.         Learned Counsel for the appellant contended that the appellant had filed Suit for recovery of Rs.33,165,599/- as detailed in Para 13 of the plaint, whereas, the learned Banking Court No. IV, Karachi, while passing the Judgment and decree, due to mistake, has decreed the Suit for an amount of Rs.14,534,274/- inclusive of profit till July, 2010, and, thereafter, cost of funds till realization. Learned Counsel further contended that the learned Banking Court No. IV, Karachi, had also made a mistake by observing that the respondents had availed and utilized the finance amount, to the extent of Rs. 2,260,000/-, whereas, the actual amount is Rs. 2,69,00,000/-, which has been corrected through the impugned order. Per learned Counsel, such mistake on the part of the learned Banking Court falls within the ambit of Section 152 read with Section 151 CPC and ought to have been corrected by the learned Banking Court, while deciding the application filed by the appellant. Learned Counsel further submitted that though the application of such nature was required to be filed in terms of Section 27 of the Ordinance, 2001, however, this was merely a procedural mistake and an application filed under Section 152 read with Section 151 CPC,  ought to have been treated as an application under Section 27 of the Ordinance, 2001. Learned Counsel prayed that instant appeal may be allowed, and, the learned Banking Court may be directed to make necessary correction in the impugned Judgment and decree as prayed in the application filed under Section 152 read with Section 151 CPC, by treating the same as an application under Section 27 of the Ordinance, 2001.

 

4.         We have heard the learned Counsel for the appellant and perused the record. On 2.5.2014, the learned Counsel for the appellant was directed to satisfy this Court as to maintainability of instant Appeal, which was filed against an order dated 5.8.2013 passed by the learned Banking Court on an application under Section 152 read with Section 151 CPC for correction and rectification in its Judgment and decree. Today, when the matter was taken up, the learned Counsel for the appellant was again confronted with such objection, however, learned Counsel for the appellant could not satisfactorily respond to such query of the Court, and submitted, that since the earlier appeal filed by the appellant had been withdrawn on the ground that the appellant had already filed an application for correction / rectification of judgment and decree, before the Banking Court, therefore, on dismissal of such application, instant appeal is competent before this Court.

 

5.      Perusal of the record reflects that after passing of Judgment and decree dated 19.12.2011, by the learned Banking Court No. IV, Karachi, the appellant had impugned the said Judgment and decree by filing 1st Appeal bearing No.68 of 2012, before this Court which was dismissed as withdrawn vide order dated 10.8.2012, on the statement of the learned Counsel for the appellant, that he will be satisfied and will not press the appeal, if directions are given to the learned Banking Court No. IV, Karachi, to pass an order on the application pending before it in accordance with law. On such statement, the appeal was dismissed as withdrawn, whereas, learned Banking Court No. IV, Karachi, was directed to decide the pending application of the appellant. It would be advantageous to refer to the order dated 10.8.2012 passed in 1st Appeal No. 68 of 2012, which reads as under:

          “10.8.2012

 

1.         Granted.

 

2.         Granted subject to all just exceptions.

 

3.            Learned counsel for the appellant states that though the appellant Bank has already filed an application under section 152 read with section 151 CPC before the learned Banking Court No.IV, at Karachi on 21.2.2012, seeking medication/correction in respect of the sanctioned amount utilized by the respondents, however, since no order has been passed so far by the learned Banking Court, therefore, instant appeal has been filed to protect the interest of the appellant. Learned counsel further states that, he will be satisfied and will not press the instant appeal, if the directions are given to the learned Banking Court No.IV, at Karachi to pass an order on the application filed by the appellant in accordance with law.

 

In view of hereinabove, instant appeal is dismissed as withdrawn, however with the direction to the learned Banking Court No.IV, Karachi to decide the pending application of the appellant, if any, within four weeks, after providing an opportunity of being heard, strictly in accordance with law”.

 

6.         From perusal of the aforesaid order and the Memo of 1st Appeal 68 of 2012, it appears, that the appellant had, by itself chosen not to press its appeal filed under Section 22 of the Ordinance, 2001, against the Judgment and decree dated 19.12.2011, and instead, pursued its correction / rectification application already filed in terms of Section 152 read with Section 151 CPC, before the learned Banking Court. We may observe, that such conduct of the appellant, reflects that the grievance of the appellant, was only to the extent of seeking correction / rectification of the impugned Judgment and decree, as provided and permissible, under the provisions of Section 152 CPC, which provides that clerical or arithmetical mistakes in the Judgment and decree or orders  or error arising therein, from accidental slip or omission, may at any time be corrected by the Court, either on its own motion, or on the application of any of the parties. In the given facts, we are of the opinion, that once the appellant had chosen to withdraw the appeal filed in respect of merits of the case, and had sought to pursue its application under Section 152 CPC, therefore, through instant appeal, at the most and without prejudice, as to its maintainability, this Court can only look into the fact as to whether, the correction / rectification, being sought by the appellant, was permissible in terms of Section 152 CPC or not, whereas, merits of the case cannot be examined as it would amount to enlarging the limitation as well.

 

7.         In this regard it would be advantageous to refer to the findings / observations of the Learned Banking Court, while passing the Judgment and decree dated 19.12.2011, which reads as follows:

 

4.  I have heard the learned counsel for the parties and have also perused the entire material available on record, including the statement of account, which show that the defendants availed and utilized the finance to the extent of Rs.2,260,000/-. The defendant started paying installments since February 2008 and paid installments till July, 2010 and, thereafter committed default as is evident from the payment schedule annexed  as annexure “E” with the plaint. The total amount paid through installments, comes to Rs.12,365,726/- leaving outstanding balance of Rs.14,534,274/- inclusive of profit till July, 2010. Although, the plaintiff has claimed charity and 5% termination charges but the said charges have neither been borne out from the terms and conditions of the agreement, nor is there any tangible evidence in the shape of any separate agreement or other documentary evidence for the purpose to grant the same, as such, the said claim of the plaintiff cannot be acceded to. Accordingly, the suit of the plaintiff is decreed in the sum of Rs.14,534,274/- inclusive of profit till July, 2010, and, thereafter cost of fund, till realization of the entire decretal amount. The cost of suit is also allowed. The prayer of the plaintiff for sale of the mortgaged property is also allowed”. 

 

8.         From perusal of the aforesaid order, it appears that the learned Banking Court, after having examined the contents of the plaint and the statement of account filed by the appellant, and, other material available before it, came to the conclusion, that the respondent had availed and utilized finance to the extent of Rs.2,260,000/- (subsequently stands corrected to Rs.2,69,00,000/- through the impugned order), whereas, according to the Judgment and decree, the respondent had paid through installments an amount of Rs.12,365,726/- leaving an outstanding balance of Rs.14,534,274/- inclusive of profit till July, 2010, whereas, the other amount being claimed by the appellant, under the head  of charity and 5%  termination charges, were not granted by the learned Banking Court, as they were not borne out from the terms and conditions of the agreement, nor there was any tangible separate agreement or other documentary evidence for the said purpose, to grant the same. On this basis, the claim of the appellant to the extent of amount recoverable against charity and 5% termination charges, was not acceded to by the learned Banking Court, and the Suit of the appellant was decreed in the sum of Rs.14,534,274/- inclusive of profit till July, 2010 and thereafter  cost of fund, till realization. 

 

9.         Perusal of the aforesaid Judgment and decree, passed by the learned Banking Court, reflects that the learned Banking Court had passed a well-reasoned and conscious order, whereby, the claim of the appellant was only allowed to the extent of finance availed by the respondents, after deduction of the installments already paid by them, whereas, additional amount being claimed by the appellant under the head of charity and 5% termination charges was declined. Such order, in our view was passed on the merits of the case and after considering the material available on record before the learned Banking Court No. IV, Karachi, thus, refusal of grant of charity and 5% termination charges, cannot be termed as clerical or arithmetical mistake, which could have been corrected / rectified under Section 152 CPC. In our view, the proper course available to the appellant was to challenge the same through an Appeal under Section 22 of the Ordinance, 2001, which, the appellant after having filed had withdrawn. Therefore, after withdrawal of such appeal, the appellant cannot pursue or contest the judgment and decree dated 19.12.2011 on its merits, anymore. The appellant had itself, chosen to treat such findings of the learned Banking Court, as a clerical and or arithmetical mistake, and on such basis, had withdrawn the appeal filed on merits, therefore, the appellant cannot be allowed to re-agitate the merits of the case through instant appeal.

 

10.       In view of hereinabove facts and circumstances of the instant case, we are of the view that the correction/rectification being sought by the appellant does not falls within the purview of a clerical or an arithmetical mistake, either in terms of Section 152 CPC or for that matter under Section 27 of the Ordinance, 2001, as the learned Banking Court, has passed a well-reasoned judgment and decree on merits of the case, whereby, the claim of the appellant in respect of charity and termination charges has been declined, and such refusal by the learned Banking Court does not fall within the purview of a clerical or arithmetical mistake. Accordingly, we had dismissed instant appeal vide short order dated 13.1.2015 and above are the reasons for the short order.

 

                       

 

                                                                                                                         JUDGE

 

                                                                        JUDGE

 

Talib