NATIONAL BANK OF PAKISTAN through Zonal Chief and others vs Messrs

' MIAN SAQIB NISAR, J.--Both these appeals (R.F.As. Nos.336 of 2002 and 307 of 2002), are against the same judgment and decree of the learned Banking Court as well as between the same parties, thus, are being disposed of together.

2. Briefly stated the facts of the case are that the respondent-Bank brought a suit for the recovery of outstanding amount of Rs,2,66,32,189 due from the appellant No,1, as the principal borrower and other appellants as guarantors, on account of three facilities, i.e. LLM Finance Facility of Rs,9.500 Million, SBP Small Finance of Rs,1.188 Million and Cash Finance Facility of Rs,9 Million. The appellants applied for leave to appear and defend, which has been dismissed by the learned Banking Court vide judgment dated 21-1-2002, but the suit of the plaintiff has been decreed only to the extent of Rs,2,21,32,380, on the reasoning that:-- "The statement of accounts available on the record shows that an amount of Rs,51,41,127.03 was deposited by the defendants towards the adjustment of their LMM Finance Facility. Since there was hire purchase agreement, therefore, after deduction of the said amount from the purchase price i.e. Rs,1,41,34,333, an amount of Rs,89,92,873 is liable to be paid by the defendants to the plaintiff bank."

3. Learned counsel for the appellants contends that, the respondent-Bank illegally and forcibly took over the possession of the project of the appellant No,1 on 4-5-1999 and has misappropriated the stocks and goods lying therein and has also ousted the appellant from the management of the company, resultantly, the respondent-Bank was not entitled to the recovery of the amount, as has been allowed by the learned Banking Court. It is also stated that the documents, which were filed alongwith the plaint, have been fabricated and manufactured by the respondent-Bank and the statement of accounts was also inaccurate and not verified according to law; suit has also not been duly instituted by an authorized person.

4. In the other connected appeal, the respondent-Bank (who is the appellant in this appeal), is aggrieved of the refusal of the decree for the amount of Rs,51,41,127.03, on the reasoning given in the paragraph of the judgment reproduced above. It is stated that this amount had been deposited by the defendant prior to the re-scheduling and could not have been taken into account while considering the claim of the bank. In any case, it is submitted that on this account, at the most, the defendants were entitled to the grant of leave, but the Banking Court, at the leave stage, could not have refused the decree without recording of the evidence.

5. We have heard the learned counsel for the parties. As far as R.F.A. No,336 of 2002 is concerned, the allegations that the documents are fabricated and manufactured, are bald allegations and also contradict the case of the appellant, because on the one hand, they have not denied the availing of the facilities and also claim to have paid certain amounts towards the discharge of their liability, but on the other hand, have denied the documents in vague and general terms by not raising any specific plea qua the fabrication or forgery of the particular documents. They have also not denied to the execution of the guarantees and the mortgage documents, executed in favour of the plaintiff-Bank. The plea that, the statement of accounts is not verified or is inaccurate, is also not substantiated except the amount of Rs,51,41,127.03, which the learned Banking Court has already disallowed to the respondent-Bank. The plea that the suit has not been instituted by an authorized person, is also against the record, because, a valid authority is available on the file, filed alongwith the plaint.

6. Anyhow, learned counsel for the appellants has vehemently argued that the respondent-Bank had taken over the project and the management of the company on 4-5-1999 and thus, on account of the above, stocks, goods and the machinery lying in the company, have been misappropriated, therefore, until and unless is counted for, the bank is not entitled to the decree.

We have perused the leave application of the appellants and find that this is not the ground set out in the application. Moreover, alleged forcible dispossession of the appellants is not substantiated from any document on the record. The appellants have not ever written to the bank about this forcible dispossession or taken any proceedings, criminal or civil, challenging such action of the respondent-Bank or seeking the possession of the project. No other action about the alleged misappropriation of the stocks, machinery, goods etc. Was ever initiated by the appellants. It seems clear to us that the appellants had abandoned the project, thus, with an object to secure the project and to protect the stock goods lying therein, from pilferage and stealing, the respondent-Bank, in inevitable circumstances, appointed its Chowkidars, and there was no object to dispossess the appellants. Resultantly, no -case for leave in this behalf, on account of the above, had been made out by the appellants.

7. As far as the question of the payment of an amount of Rs,51,41,127.03 is concerned, though the learned Banking Court has held that this amount stands deposited in the LLM Facility, suffice it to say, that it is a question, which is an issue .Between the parties, and in the circumstances, instead of disallowing this amount to the bank, the legal course was that the appellants to .The above extent, should have been granted leave and dispute should have been resolved after the framing of issues and trial. Thus, denial of the amount to the respondent-Bank, at the leave granting stage, is absolutely illegal and unlawful, resultantly, the judgment and decree of the learned Banking- Court, denying the amount of Rs,51,41,127.03, to the bank is set aside. The appellants, to the extent of this issue, are allowed leave to appear and defend and the Banking Court is directed to resolve the issue after holding the trial.

' In the light of above, the judgment and decree of the Banking Court, impugned in R.F.A. No,336 of 2002, is upheld, but as impugned in R.F.A. No,307 of 2002, is set aside.