Messrs WARRIOR CHEMICAL (PVT.) LTD. and 5 others vs NATIONAL BANK OF PAKISTAN

ORDER

' The respondent instituted a suit for the recovery of Rs,13,415,075 against the appellants before Judge Banking Court Gujranwala under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The appellant made an application for grant of leave to defend the suit under sections 9 and 10 of the Act, ibid. It was dismissed. Vide decree dated 4-1-2005 passed by the learned Judge Banking Court No,1, Gujranwala, the suit has been decreed along with the mark up.

2.

3. It is contended by the learned counsel for the appellant that the application made by the appellant disclosed such facts which necessitated the recording of the evidence. He argues that the admission attributed to the appellant in paragraph No,12 of the impugned judgment is against the facts. He refers to the averments made in paragraphs Nos.J(iii) and (ix) of his application for leave to defend to argue that, he had denied the execution of any agreement pertaining to the loan. Referring to paragraphs No,"0" and 5, he contends that he has specifically averred that the said amounts had never been disbursed. Further contends that the original statement of account was substituted by a secondary statement of account of facility; that the documents produced by the plaintiff were not verified in accordance with the Bankers' Books Evidence Act, 1891, and the plaint was not accompanied by all the documents and the second statement of accounts cannot be taken into consideration in view of the section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2011. Relies on "2007 CLD 188" titled Messrs Liaqat Flour and General Mills through Partners and 3 others v. Messrs Muslim Commercial Bank Ltd. "2006 CLD 1587" titled Healthco Surgical Supplies and 4 others v. Standard Chartered Bank (Formerly Chartered Grindlays Bank, Anz Grindlays Bank) and "2011 CLD 408" titled Sonery Bank Limited v. Classic Denim Mills (Pvt.) Limited and 3 others. On the other hand, it is contended by the learned counsel appearing on behalf of the respondent that the appellant only refutes the liability to pay the mark up. He does not deny the signing of the agreement of loan and that the application made by the petitioner does not disclose such fact which would necessitate the recording of evidence.

4. We have heard the learned counsel for the petitioner and also gone through the record.

5. The plaint filed by the respondent bank was not accompanied by the statement of accounts. The original statement of account was substituted by another statement of accounts. The documents were not verified in accordance with Bankers' Books Evidence Act, 1891. The application for leave to defend contained the facts which necessitated the recording of evidence. The banking laws, being the Special Laws that gives an edge to the Financial Institutions. The law has to be interpreted in favour of a party whose right to defend has been slashed away. In case the right to defend is not granted, the defendant has to bear the brunt of a decree. In case the leave to defend is granted, the plaintiff is only to undergo the burden to produce the evidence in order to prove his case. In our view, the appellant in view of judgments referred by him has set up an argueable case that would necessitate the recording of evidence. The property of the appellant is under mortgage. In this view of the matter, this appeal is accepted. The appellant is granted leave to defend the suit.