MUHAMMAD HUSSAIN vs SME BANK LIMITED and another

ORDER

' Briefly stated the facts of the case are, that the appellant brought a suit for rendition of accounts with consequential relief against the respondent-Bank, in which, leave application was filed by the respondent-Bank, and the learned Court below instead of granting the leave and deciding the case after the trial, has rejected the plaint under Order VII, rule 11, C.P.C. The operative part of the impugned order is reproduced as under:- "The suit has been contested by the defendants through PLA with the contention that Manzoor Ahmad son of plaintiff availed finance facility to the tune of Rs.3,00,000 on mark-up basis and present plaintiff stood as guarantor. It is also replied that deed of guarantee was executed by the plaintiff and the same was not only signed but thumb marked also. I have seen the copy of deed of guarantee attached with the PLA as well as the copy of agreement executed between the plaintiff and the defendants which is also signed as well as thumb marked by the plaintiff. Thumb impression is very clear. The plaintiff in his plaint has not challenged the thumb impression marked on the deed of guarantee and the agreement of loan. In such circumstances, the contention that the deed of guarantee was not executed by the plaintiff has no force and on the face of record present suit has been filed with mala fide intention just to delay the recovery proceedings. In such circumstances, the plaint is devoid of any cause of action and the same is rejected under Order VII, rule 11, C.P.C."

2. We have heard the learned counsel for the parties and find that the above procedure, adopted by the learned Banking Court below, in the facts and circumstances of the case, is absolutely illegal and erroneous. The Court at the most, could have allowed the leave application of the respondents and permitted them to contest the matter, and after trial, could have dismissed the suit. But in the situation, where the leave application was not even allowed, the plaint of the appellant could not have been rejected under Order VII, rule 11, C.P.C. The argument of the learned counsel for the respondents that, as in the leave application, the plausible defence was set out, on the basis of which, the plaint did not disclose any cause of action, suffice it to say that, under the settled law, while rejecting the plaint for non-disclosure of cause of action, ordinarily the facts stated in the plaint, are to be considered and that too as correct, and no data, material provided by the defence, should be looked into. However, there are some exceptions to this rule, but this case does not fall within the exception, where while considering the leave application, which even otherwise has not been allowed by the learned Court below, the plaint could not have been rejected. Resultantly, this appeal is allowed. The impugned order of the Banking Court is set aside and the case is remanded to the Court below for decision of the leave application of the respondents, and to decide the case in accordance with law.