ALMADINA ELECTRIC STORE, DAHARKI, through Proprietor vs HABIB BANK

ORDER

1. ' AMIR HANI MUSLIM, J.---This Bank appeal has been preferred by the appellant impugning the judgment and decree of the Banking Court No,1, Sukkur in Suit No,39 of 2000 filed by the respondent against the appellant and the order dated 16-8-2003 by the said Banking Court dismissing the leave to defend application of the appellant.

2. ' The brief facts of the case as they appear from the record are that the respondent filed Suit No,39 of 2000 before the Banking Court No,1, Sukkur against the appellant for recovery of Rs,17,56,750 under the Banking Companies Act, 1997. Upon service on the appellant, the appellant filed leave to defend application in which it was pleaded that appellant did apply for sanction of loan and did execute a number of inchoate documents in order to avail the facility. The loan was sanctioned but was never disbursed to the appellant. It was further pleaded in the said application that the amount of loan was disbursed to Haji Meharuddin son of Chand Khan by the then Bank Manager, Muhammad Umar. The application further mentions that complaints were made by the appellant to the different high-ups of the respondent including the State Bank. However, no action was taken against the Manager of the respondent. It was further contended that an amount of Rs,6,00,000 was deposited by the appellant on account of the threats of arrest to appellant and his family members. The appellant however, has denied the claim of the respondent.

3. ' The record reflects that the objections were filed by the respondent to the leave to defend application whereafter the learned Banking Court on 4-3-2003 heard the arguments of the counsel and posted the matter for orders on 22-3-2003. In the intervening period it appears that the respondent's counsel on 11-3-2000 filed a statement before the learned Banking Court along with two photocopies of documents one of which was the copy of the letter from the office of Deputy Commissioner of Income Tax Mirpur Mathelo addressed to respondent reflecting that the appellant had availed the loan facility from them and the other document was the copy of letter on the letter head of the appellant wherein appellant had acknowledged the deposit of Rs,6,00,000 with the respondent with the prayer of easy instalments of the remaining loan amount.

4. ' The learned trial Court relying upon these two documents had dismissed the leave to defend application of the appellant and had decreed the suit of the respondent holding that loan was advanced to the appellant which order of dismissal of the application and the decree of the Banking Court are impugned in these proceedings.

5. It has been contended by the learned counsel for the appellant that the Banking Court has relied upon the material which was never produced with the plaint and the appellant had not been provided opportunity to either rebut or to explain their position in regard to the aforesaid two documents which were filed by the respondent along with statement before the Banking Court, after the leave to defend application was argued and the matter was posted for orders. He further submitted that even the order dismissing leave to defend application was erroneous as the facts pleaded therein called for recording of evidence and the Banking Court refused leave though appellant in law was entitled to grant of unconditional leave.

6. ' Pre-admission notice was issued and the counsel for respondent appeared who was not fully acquainted with the issue raised in the proceeding. We therefore, called the R and P from the learned Banking Court. On perusal we noticed that arguments on leave to defend application were heard on 4-3-2003 whereafter the matter was posted for orders on 22-3-2003. On 11-3-2003 photocopies of two documents referred to in the aforesaid para. Were filed with the statement of the counsel of respondent for which no notice was issued to the appellant's counsel. Copies of these two documents were not filed along with the plaint. Even otherwise one of the documents on which the Banking Court has relied upon was required to be proved by procuring the attendance of the officer and or representative of the Income Tax Department who was the custodian of such document.

7. ' Since a short point was involved in appeal, we with the consent of the learned counsel have decided to hear the appeal and dispose it of at Katcha Peshi level.

8. The learned counsel for the respondent could not satisfy us as to how the Banking Court has relied on the two documents and dismissed the leave to defend application and pass the judgment against the appellant without providing an opportunity to them to rebut it and or offer their explanation. Additionally there was serious allegation against the Bank Manager, who has granted the loan facility and got its approval inasmuch as that the loan amount was never disbursed nor was withdrawn by the appellant from the respondent and instead a friend of then Bank Manager namely Meher-ud-Din was paid the amount. On perusal of the records, we find no material justifying the Banking Court to hold that the loan amount was actually disbursed to the appellant.

9. The Bank statement only reflects the figure was carried forward. The entire transaction and or entries pertaining to loan disbursement to the appellant was not brought on record. Therefore, in the face of the allegations made in the leave to defend application, it was improper on the part of the Banking Court to dismiss it without granting leave to the appellant. The order and the judgment impugned in these proceedings was influenced by the copies of two documents as mentioned hereinabove which, on the back of the appellant were filed by the respondent's counsel with the Court. Relying upon such documents without providing an opportunity to the appellant ex facie was contrary to the procedure provided under the Qanun-e-Shahadat and therefore, even order and judgment impugned in these proceeding on that score was nullity.

10. ' For the aforesaid reasons we by our short order dated 31-1-2006 had set aside the order dated 16- 8-2003 dismissing the leave to defend application and the judgment dated 16-8-2003 impugned in this appeal. The matter shall be heard afresh by the Banking Court-II. The office is directed to return the R and P forthwith.