Messrs KINZA FASHION (PVT.) LTD. and others vs Messrs HABIB BANK LTD. and anothers

ORDER

' Through this appeal under section 22 of the Financial Institutions (Recovery of Finances)

Ordinance, 2001, the appellant has challenged the judgment dated 1.9.2008 passed by Banking Court No,5 at Karachi, in Suit No,945 of 2007 followed by decree dated 15th September, 2008, whereby the suit for recovery of Rs,8,77,631 instituted by respondent No,1 was decreed in the sum of Rs,8,26,068 with costs.

2. Learned counsel for the appellant vehemently contends that in the leave to defend application, the appellant and respondent No,2 have agitated strong grounds for grant of unconditional leave and their assertions were also established from the material contradictions contained in the Statement of Accounts and other documents filed by the respondent No,1 Bank, but the Banking Court dismissed the leave to defend application without any cogent reasons and thereafter decreed the suit in a whimsical and arbitrary manner without even ascertaining correct facts as to how and in what manner FATR facility, that was sanctioned to the extent of Rs,9,50, 000, was availed by the appellant and respondent No,2.

3. After carefully perusing the case record, we have noticed that in the Statement of Accounts produced before the Banking Court, there is no debit entry with regard to availing of FATR facility in a sum of Rs,9,50,000 for which suit for recovery was instituted by respondent No, 1.

4. At this stage, learned counsel for respondent No,1 has attempted to place on record a statement of accounts pertaining to FATR Account No,1797-70000571-03 showing that an amount of Rs,9,50,000 was availed by the appellant and respondent No,2 on 8th March, 2007 and thereafter on 13-6-2007 and 10-8-2007 two payments of Rs,78,000 each were made by the appellant. The two amounts of repayments are reflected from the statement of accounts pertaining to Account No,1797-00221137-03 filed with the suit by respondent No,2 before the Banking Court.

5. From the perusal of the impugned judgment, we have noticed that the Banking Court dismissed the leave to defend application of the appellant in an hasty manner without examining in detail, the defence put up by the appellant and absence of any material with regard to availing the FATR facility, learned counsel for respondent No,1 has also conceded that the statement of accounts pertaining to FATR facility and bearing Number 797-70000571-03 was not placed before the Banking Court. In such circumstances, in our opinion, the impugned order passed on the leave to defend application and the consequent decree cannot be sustained. Accordingly, this appeal is allowed and the impugned judgment and decree passed in favour of respondent No,1 Bank in Suit No,945 of 2007 is set aside and the case is remanded to Banking Court with the direction to decide the leave to defend application of the appellant afresh and before doing so all the parties shall be at liberty to place on record any other document on which they intend to rely in support of their respective claim/counter- claim.