HABIB BANK LIMITED through Authorized Attorney vs HAIDRI HOMES through Partners and 3 others

ORDER

C.M. No,167-B of 2012 ' MUHAMMAD KHALID MEHMOOD KHAN, J.---The plaintiff filed a suit for recovery of Rs,75,487,490.42 against defendants. The defendants filed application for permission to defend the suit and raised numbers of objections as to the maintainability of suit, authority of signatory to plaint, documents relied upon by the plaintiff as well as authenticity of charge documents. The defendants objections were attended to and on 23-12-2011 and application for permission to defend the suit, was allowed subject to deposit of Rs,40 Million with the Deputy Registrar (Judicial) of this Court within one month. It was further ordered that in case defendants deposit the amount, the same will be invested in an interest bearing; account and will be disbursed according to the decree when passed. The defendants then filed application C.M. No,41-B of 2012, for extension of time, this Court directed the defendants to deposit Rs,5 Million for establishing their bona fide. Office reported that defendants have deposited Rs,5 Million on 31-1-2012 and C.M. No,41-B of 2012 was disposed of and defendants were directed to deposit the balance amount up to 2-3-2012. The defendants failed to deposit the balance amount and filed application (C.M. No,167-B of 2012) praying that first the question of maintainability of suit, legality and genuineness of documents relied upon by the plaintiff be decided and plaint be rejected, the defendants/petitioners through this application raised all those objections which they raised in their PLA.

2. Learned counsel for plaintiff submits that defendants/petitioner have failed to comply with the order dated 23-12-2011 and as such suit is bound to be decreed as prayed for. Further submits that under section 10(11) of Financial Institutions (Recovery of Finances) Ordinance 2001 the court has to pass a decree forthwith as defendants/applicants failure to fulfill the condition attached to the grant of leave to defend the suit. Learned counsel further submits that word "shall" has been used which means no discretion is available to court except to pass a judgment and decree. He has relied on Haji Ali Khan and Companu, Abbotabad and 8 others v. Messrs. Allied Bank of Pakistan Limited Abbotabad PLD 1995 Supreme Court 362), Naeem Iqbal v. Mst. Zarin (1996 SCM R 1530) and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCM R 2832)

3. Learned counsel for defendants/applicants submits that even if it is presumed that defendants have failed to obtain leave to defend the suit, the court is bound to examine the averments of plaint and to decide the suit on merits. He has relied on Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited Karachi through President and 3 others (1999 SCM R 2353).

4. No doubt the argument of learned counsel for defendants/petitioners has a force but the question is whether the instant objections rose by defendants/ petitioners were attended to or not?

The order dated 23-12-2011 shows that all objections raised by defendants/ applicants were fully attended to and leave to defend was granted subject to deposit of Rs,40 Million.

5. The defendants have failed to comply with the order of this Court and as the averments of plaint will be deemed to be accepted. The plaintiff has placed on record certified copy of statement of account having a certificate under section 4 of Bankers' Books Evidence Act 1891. There is no rebuttal of the statement of account and as such the argument of learned counsel for defendants that court has to examine the maintainability of suit is not sustainable in the eye of law. Under section 9 of the Financial Institutions (Recovery of Finances) Ordinance 2001 certified statement of accounts is the core document under section 4 of Bankers' Books Act 1891. The statement of account is available on record and no entry of the same is challenged and as such it will be presumed that account prepared and maintained by the plaintiff/bank are correct.

6. The defendants were allowed to defend the suit and their objection can only be attended to subject to fulfillment of condition imposed. The judgment referred by learned counsel or defendants has distinguished facts as in that suit the plaintiff has claimed damages which could only be ascertained after recording of evidence and as such Hon'ble Supreme Court of Pakistan has held that even if defendants failed to file application for permission to defend the suit or their application is dismissed the court should examine the averments of plaint and documents annexed there with. Whereas in the present case statement of account having a certificate under section 4 of the Act ibid is admissible per se specially when there is no opposition and there is no objection against any debit entry, thus in the absence of any rebuttal, the amount due as per statement of account will be deemed to be the correct liability of defendants.

7. In view of above, the application C.M. No,167-B of 2012 is dismissed and plaintiffs suit is decreed for recovery of Rs,75,487,490 jointly and severally against the defendants and the mortgage property. However, the plaintiff will be entitled to recover the costs of funds only from the date of decree. The defendants will also bear the costs of suit.

8. Office is directed to prepare the decree sheet accordingly.