Messrs SAUDI PAK COMMERCIAL BANK LIMITED vs Messrs MARVI AGROCHEM

ORDER

1. FAISAL ARAB, J.---Under two separate Short Term Finance Agreements dated 30-5-2000 and 20-6- 2000, the plaintiff granted to defendant No.1 two facilities of finance. The first was for a sum of Rs.11,989,000 and the second for Rs.27,992,000. Both the facilities collectively were to the extent of Rs.39,981,000. The buyback price for first facility was settled at Rs.16,126,000 and Rs.47,651,160 for the second facility. Thus the buyback price for both the facilities was Rs.63,777,160. In the agreements rebate on mark-up was also provided and after deducting the rebate the buyback price of both the facilities stood reduced to Rs.59,176,630. The defendant No.1 did not avail the finance in one-go but on as and when required basis. It was utilized from account No.358033278001, which it maintained with the plaintiff. When the defendant No.1 failed to settle the account in its entirety within the stipulated period, the plaintiff served legal notice dated 7-7-2005 upon the defendants calling upon them to pay the outstanding amount of Rs.55,604,936.04 which according to the plaintiff was due on 30-10-2005. Upon failure to settle their account, the plaintiff filed the present suit seeking recovery of Rs.57,260,829.04 which according to the plaintiff was due and payable as of 31-10-2005.

2. Initially, complete statement of Account No.358033278001 showing all debit and credit entries was not filed with the plaint and only a lump sum figure of outstanding amount was claimed but subsequently on the directions of this Court, a detailed statement of account was filed by the plaintiff along with its affidavit submitted on 23-5-2006. The statement of account filed as P/1 shows debit entries of finances which were availed by defendant No.1 from time to time and credit entries of repayment made to the plaintiff. From Annexure P/1 it is evident that after adjusting the repayment a sum of Rs.33,656,354 was left as outstanding amount. This was without the incidence of mark-up. With regard to claim of mark-up Annexure P/2 has been filed which shows various A debit entries for charging mark-up from time to time. In all Rs.22,384,272.04 were debited towards mark-up and recovery of Rs.435,690 has been shown in this statement towards markup. This left Rs.21,948,582.04 as outstanding balance for mark-up which according to the plaintiff was recoverable from defendant No.l. It is now well established that plaintiff can claim mark-up on a facility only to the extent agreed upon under the contract of finance and that too which is arrived at after deducting the rebate on mark-up.

3. Reference may be made to the case of NDFC v. Anwarzaib reported in 1999 M LD 1888.

4. The rebated mark-up under both the facilities under the agreements of finance were settled at Rs.19,195,630. When the repayment of Rs.435,690 against mark-up is deducted from this amount a sum of Rs.18,759,940 only is left as recoverable mark-up. When this outstanding mark-up amount is added to the outstanding debit balance of Rs.33,654,354 shown in the statement of Account No.358033278001 filed as P/1, the total recoverable amount comes to Rs.52,416,294. The defendant No.1 it its statement of account, which it wrongly filed in another connected suit i.e. Suit No.27 of 2004 has sought deduction to the extent of .Rs.40 million which it claimed were based on wrong debit entries. Neither such objection was raised in the leave to defend application nor even at the argument stage any debit entry was identified which according to defendant No.1 was incorrect. A bald assertion was made to seek deduction of Rs.40 million on the basis of some investigation being conducted by NAB against Muhammad Altaf Madraswalla, an employee of the plaintiff. In this case as I have determined the outstanding amount on the basis of the amount actually availed and the repayments made by defendant No.1 as reflected in the debit and credit entries in Account No.358033278001 and none of the debit entries have been identified by defendant No.1 to be erroneous, the claim for Rs.40 million cannot be entertained. For the foregoing reasons, the application for leave to defend is dismissed. The suit is decreed against the defendants in a sum of Rs.52,416,294 along with cost of funds, chargeable from 1-7-2005 at the State Bank's approved rates up till such time the entire decretal amount is recovered. However, recoveries to the affected first through sale of mortgaged properties belonging to defendant No 1. In case the value of mortgaged properties are not sufficient to cover the decretal amount, then recoveries are to be made from the assets of the E defendants Nos.2 to 10.