BELA AUTOMOTIVES LIMITED vs HABIB BANK LIMITED

ORDER

1. This application (C.M.A. No.8669 of 2001) under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been filed by the defendant, H.B.L. In suit for accounts, injunction, declaration and damages for Rs.599.214 Million filed by plaintiff, BELA Automotives Limited against the said defendant, H.B.L. It is the case of plaintiff that certain finance facilities were extended by the defendants to plaintiff. Defendants have charged amount in violation of the Agreement BCD Circulars issued by the State Bank of Pakistan and the law regulating such recoveries. The defendants have charged mark-up, mark-up on mark-up and other sum which are seriously objected to by the learned counsel for the plaintiff. It is the case of plaintiff that on account of such charging of amount illegally and unauthorizedly, the plaintiff has suffered loss as detailed in Para.20 of the plaint.

2. Mr. Badar Alam, learned counsel for the defendant at the very outset objects to the maintainability of the suit. According to the learned counsel, in terms of section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the plaint without statement of Account is incomplete and same is liable to be rejected. In support of his contention, he has relied upon the case laws reported as (1) Muhammad Yousaf v. A.D.B.P. 2002 CLD 1270; (2) Baba Fareed Ghee Industries (Pvt.)

3. Ltd. through Chief Executive and 3 others v. National Bank of Pakistan 2002 CLD 669 and (3) Banker Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Ltd. and 7 others 2003 CLD 931. In all the above cases, it appears that the rejection of plaint was maintained even by a learned Division Bench of Lahore High Court.

4. In contra, Mr. Mamnoon Hassan, learned counsel for the plaintiff contends that this Court on 5-8- 2002 had framed the following issues:--

(1) That the suit is bared by law.

(2) That the suit is barred by provisions of law.

(3) That the suit is barred as consequence of Ordinance, 2001.

5. It is, therefore, urged that unless defendant satisfied the Court on the issues framed by the Court, the defendant cannot be allowed to proceed.

6. I have examined issues. The issues are founded on the ground as being argued by the defendant.

7. Mr. Mamnoon Hassan, learned counsel further contends that the matter as to the maintainability of the suit on account of any deficiency, illegality or irregularity or as to the jurisdiction can only be resorted once leave is granted. It is urged that in case the objections raised by the defendants are considered worth while same may be the ground for granting leave whereafter the Court may proceed to examine the objections and before that. In support of his contention, he has relied upon the case laws reported as (1) Muhammad Yousaf v. ADBP 2002 CLD 1270; (2) Baba Fareed Ghee Industries (Pvt.) Ltd. through Chief Executive and 3 others v. National Bank of Pakistan 2002 CLD 669 and (3) Banker Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Ltd. and 7 others 2003 CLD 931.

8. I have heard the arguments and per ised the record.

9. In, all the cases cited by Mr. Badar Alan- , arned counsel for the defendant, it is not clear as to whet any statement of account was required to be filed aft( such fact was brought to the notice of the Court.

10. Mr. Mamnoon Hassan, learned counsel for the plaintiff states that statement of account for whatever worth was filed along with the Replication to the leave to defend application (Annexure 'E'). He further submits that the purpose of filing the statement of account as would appear from the section 9(2) of ibid relied upon by Mr. Badar, is to bring to knowledge of the defendant as to nature of financial claim as claimed by the borrower, customers or the Financial Institution, as the case may be. From para.20 of the plaint, it appears that plaintiff has already given the break-up of the statement of his claim quantifying the mark-up which were allegedly illegally charged. Prima facie and tentatively, I am of the view that a statement even embodied in the body of the plaint filed by the Borrower or Customer would meet the requirement of section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as the purpose of section 9(2) ibid in my opinion-would be substantially served where the Plaintiff with sufficient detail gives such break-up in the body of the plaint. The purpose is to inform the defendant either by way of incorporating the statement of account in the body of plaint or in a conventional manner by filing along with the plaint. The statement of the Borrower/Customer is not to be authenticated in terms of Bankers'

11. Book of Evidence as in the case of Financial Institution. Since this suit proceeds under special enactment and leave to defend has to be obtained before the Court may embark to hear the merit of legal objections raised as to maintainability of suit on various counts. Respectfully following the judgments relied upon by the learned counsel for the plaintiff that the objections as to the maintainability of the suit or otherwise could only be considered after granting leave to defend. The preliminary objections raised by the defendant in the leave to defend application, indeed makes out a case for grant of leave. Since the defendant is a financial institution, unconditional leave to defend is granted. As consequence, in terms of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the leave to defend application is treated as a Written Statement in this matter.

12. Out of pleadings of the parties, following issues are framed:--

(1) Whether suit as framed is maintainable?

(2) Whether the suit of plaintiff is barred by time?

(3) Whether the suit is hit by sections 12, 44 and 45 of the Specific Relief Act or any other law?

(4) Whether the plaintiff has suffered any loss or damage? If so, to what amount?

(5) What should the judgment and decree be?

13. Documents, list of witnesses and application for Commission, if any, to be filed within two (2) weeks whereafter the plaintiff to file the Affidavit-in-Evidence of the witnesses proposed to be examined.

14. After such exercise, the matter be fixed in Court for recording of evidence and then for Affidavit-in- Evidence by the defendant, if they so chose, will be at liberty to move application under Order VII, rule 11, C.P.C. raising all the legal objection as may be available to them.