Messrs HAQ FEED INDUSTRIES (PVT.) LIMITED through Chief Executive and 7

MAULVI ANWARUL HAQ, J.---On 30-9-1997, the respondent filed a suit against the appellants for recovery of Rs.10,496,219. In the plaint, it was stated that local currency term loan of Rs.1.2 million and local currency suppliers credit of Rs.3.8 million was extended fo the appellants by the respondent. However, it was mentioned that with reference to this amount a separate suit is being filed. Then there is reference to a request for facility of working capital and an agreement entered into on 1-1-1987, whereby the appellants agreed to pay a mark-up price 'worked out at Rs.6 million for the goods supplied. Para-4 contains details of several documents executed by the appellants.

In para-9, it was stated that as per accounts, the said suit amount is due and payable by the appellants. Notices in prescribed form were issues and served upon the appellants who put in appearance and filed an application on 4-11-1997 for leave to defend. A reply was filed. On 29-4- 1998, a certified copy of statement of accounts was filed. The matter remained pending till such time 'that Financial Institutions (Recovery of Finances) Ordinance, 2001, was promulgated. An amended PLA was accordingly filed on 1-10-2001. The ,case was adjourned on number of occasions but apparently reply was not filed to this amended PLA. The matter was taken up on 7-3-2003 and the suit was decreed in the sum of Rs.38,50,348. This amount was worked out after A deducting the claim for liquidated damages which form part of the said suit amount.

2. Learned counsel for the appellants contends that the statement of accounts, referred to in the plaint, does not at all support the impugned decree keeping in view the admitted amount paid back by the appellants to the respondent. According to him, the detailed statement of accounts filed on 29-4-1998, is also not consistent with the plaint. Precise contention is that the claim, as mentioned in the plaint, could not have been decreed, notwithstanding the fact that the leave to defend was refused. Learned counsel for the respondent, on the other hand, has argued that the impugned judgment and decree is fully supported by the statement of accounts filed on 29-4- 1998. However, when called upon to reconcile the said statement with the contents of the plaint, learned counsel finds it difficult to do so. He accordingly prays for leave to amend the plaint.

3. We have gone through the records with the assistance of the learned counsel for the parties. For the order we propose to pass in this R.F.A. We will not be commenting in detail. However, since we are going to set aside the impugned judgment and decree, we may refer to only one of the circumstances glaring on the face of records. Para-3 of the plaint, mentions three figures i.e. Rs.1.2 million, Rs.3.8 million and Rs.6 million. Regarding earlier two figures, it has been mentioned that a separate suit is being filed. The statement of accounts referred to in para.9 of the plaint whereby it has been stated that the said suit amount claimed by the respondent is due, narrates the mark-up price as Rs.4,375,603.00, the payment received is mentioned as Rs.8,82,055, the remaining is claim for liquidated damages and central excise duty. On 29-4-1998, a detailed and fresh statement of accounts was filed. In the summary statement, the principal amount was mentioned as Rs.7,147,121.25 while the mark-up was mentioned as Rs.3,85,833.00. The amount received was mentioned as Rs.4,037,299.55. As noted by us above, the amended PLA was filed containing a statement under section 10 of the said Ordinance of 2001. According to this statement, the amount disbursed was Rs.3,977,305, while the amount paid back was Rs.4,037,299, yet another amount of Rs.300,000 was shown to have been paid by way of mark-up. The amount of liquidated damages and excise duty was disputed. This application was never replied by the respondent. There is not a word in the impugned judgment as to how the learned Judge Banking Court has proceeded to decree the suit in the said amount. He, has stated that since he has dismissed the application for leave to defend, the plaint shall have been admitted and decreed. However, learned Judge Banking Court has done nothing to reconcile the plaint with different statements of accounts prOduced by the respondent. The impugned judgment and decree, therefore, is not at all sustainable.

4. We are, however, inclined to grant permission to respondent to amend the plaint suitably and consequently to grant leave to defend the suit to the appellants.

5. This RFA accordingly is allowed. The impugned judgment and decree dated 7-3-2003 of the learned Judge Banking Court-I, Gujranwala, is set aside. The suit filed by the respondent against the appellants shall be deemed to be pending in the said Court. Records to be remitted back immediately by office. The parties shall be summoned. Amended plaint will be taken on record and thereafter a chance will be given to the appellants/defendants to file amended written statement.

Issues, arising out of the pleadings, will be framed and the suit will be decided in accordance with law.

6. No orders as to costs.