Messrs MUZAMIL BROTHERS and an other s vs SAUDIPAK COMMERCIAL BANK

' MIAN SAQIB NISAR, J.---On 1-12-2000, the respondents Bank filed suit for recovery of Rs,4,50,576.95 against the appellants. The appellants filed an application for leave to appear and defend the suit, which was contested by the respondent-Bank by filing reply, which has been dismissed by the Banking Court on 28-5-2002 and the suit has been decreed in terms of the claim of the respondent.

2. Learned counsel for the appellants contends that no document was appended along with the suit, even the statement of account, which was mandatory in terms of section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was not filed in support of the plaint. This fact has been so admitted by the respondent in reply to the leave application in paras.8 and 13. It is also stated that the transaction' between the parties culminated in the year 1996, whereas the suit was filed on 1-12-2000 and by that time the suit has become barred by time.

It is further submitted that at the time of obtaining the loan the appellants pledged certain goods with the respondent, but those were not accounted for; therefore, the case of the appellants is covered by the judgment reported as A.M. Burq and another v. Central Exchange Bank Ltd. And others PLD 1966 (W.P.) Lahore 1; that the suit had not been filed by a competent person as neither the power of attorney not the resolution of bank authorizing anyone to institute the suit had been filed along with the suit, that the suit had also not been filed through the Branch Manager. Learned counsel for the respondent contrarily has argued that all the documents were filed with the reply to the application for leave to appear and defend the suit and the same were available before the Court at the time of passing of the impugned judgment. It is also submitted that the question of limitation had not been raised in the leave application, therefore, the Court has not rightly taken that plea into account. It is stated that the goods were imported by the appellants, thus, it was the duty of the appellant to get those released from the customs, but they did not do so and the goods never came in possession of the respondent, therefore, the respondent is under no obligation to return the goods, lastly it is submitted that the suit had been filed by the Branch Manager and also the Principal Officer of the Bank.

3. We have heard the learned counsel for the parties and find that the appellants were entitled to the leave simply on the ground that no document was attached with the plaint in support thereof, even the statement of account was not filed, thus, it was in violation of the provisions of section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Besides we have examined the original record and find that no document in support of the authority of the person who filed the suit on behalf of the Bank was placed along with the suit, it is a matter of evidence if one of such persons was a Branch Manager as it has been refuted by the appellant side. As regards the question of Principal Officer is concerned there is no such proof on record neither it is so stated in the plaint, rather it is to the contrary. We find that the application of the appellants has been wrongly refused and the appellants are entitled to contest the matter on the above grounds, therefore, this appeal is allowed, the impugned judgment and decree is set aside and the matter is remanded to the learned Court below for re-decision in accordance with law.