Messrs INTERNATIONAL TRADERS through Proprietorship and 3 others vs UNION BANK LIMITED

' CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that the appellants secured loan from the. Respondent-Bank. An agreement was also executed between the appellants and the respondent-Bank. According to the terms and conditions of the agreement the appellants had to repay the loan to the respondent-Bank in easy instalments. The appellants failed to discharge their liabilities in terms of the agreement. The respondent-Bank being aggrieved filed suit for recovery against the appellants amounting to Rs,5,551,149.71 as on 24-1 1 1999 inclusive of mark-up to be recovered from the sale of mortgage properties and other assets of the defendants/ appellants before the Banking Court No,2 Lahore. The appellants filed application for leave to defend the suit before the Banking Court. The learned Banking Court dismissed the application of the appellants and decreed the suit vide impugned judgment and decree dated 30- 1-2001. Hence the present appeal.

2. Learned counsel of the appellants submits that appellants did not file any application before the respondent-Bank for rescheduling the finance facilities. The respondent-Bank without the consent of the appellants had prepared the documents in question which were attached by the respondent-Bank with the plaint before the Banking Court. He further submits that an amount in excess of Rs,3.0 million has been charged by way of markup by the respondent-Bank. According to him the said Bank is not entitled to such mark-up particularly in view of the fact that it itself delayed filing of the suit for five yeaRs, He further submits that respondent-Bank be directed to produce original documents to find out the ground realities. He further urges that statement of accounts furnished by the respondent-Bank was not correct. He further urges that respondent- Bank did not mention correct figures in the statement of accounts as well as in the contents of the plaint. He further urges that respondents have no lawful authority to recover from the appellants mark-up over mark-up which is not in accordance with the agreement arrived between the parties and is also in violation of the mandatory provisions of Banking Laws and various circulars issued by the State Bank of Pakistan.

3. Learned counsel of the respondent-Bank submits that appellants had not taken the aforesaid grounds in the application for leave to defend the suit before the Banking Court. Therefore, they should not be allowed to raise new pleas before this Court at the time of hearing the appeal, He further submits that appellants did not attach single document alongwith their application for leave to defend the suit and did not deny the execution of the documents. Therefore, Banking Court was justified to decree the suit against the appellants.

4. Learned counsel of the appellants in rebuttal submits that appellants deposited Rs,500,000 to the respondent-Bank on 29-9-1999, which was not borne out from the statement of account.

5. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

6. It is settled proposition of law that plea which was not taken in the application for leave to defend before the Banking Court the same could not be taken at the time of hearing the appeal before this Court. In arriving to this conclusion we are fortified by the law laid down in Citibank N.A. v. Riaz Ahmad 2000 CLC 847. It is also admitted fact that appellants did not deny the execution of the documents. Therefore, appellants are estopped to wriggle out from this position on the well- known principle of approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC 376. We have seen the finance agreement which is at page 43 of the trial Court record which was signed on behalf of International Traders appellant which was also duly witnessed by Tariq Hussain and Sohail N. Khan. Therefore, contention of the appellant's counsel has no force that the blank documents were signed by the appellants. It is settled principle of law that signing a blank document amounts to creating or impliedly authorizing the Bank to fill in any amount at a later point of time. In arriving to this conclusion we are fortified by the law laid down in Messrs United Bank Ltd.'s case PLD 1986 Kar. 464 and Bank of Oman's case 1987 CLC 288. As mentioned above, the appellants did not deny the execution of documents and availing the finance facility as mentioned in the contents of the plaint and also that restructuring of the existing outstanding amount against them. Statement of account attached with the plaint is in accordance with law. The respondent-Bank filed. a suit for recovery of loan on 27-5-2000 which was on the basis of statement of account and the statement of account was attached with the plaint which was duly verified by Bank Authorities in accordance with Bankers' Book Evidence Act, 1891. The statement of account of the Bank has presumption of truth by virtue of section 4 of the said Act and the same was not rebutted by the appellants with cogent reasons orally or through documents. The appellants failed to deny the other documents executed between the appellants and respondent-Bank. The Banking Court has rightly come to the conclusion that appellants have failed to make any plausible case for the grant of leave to defend the suit and suit of the respondent-Bank was rightly accepted/decreed by the Banking Court and Banking Court was justified in refusing to grant leave to defend the suit and consequently decreeing the suit of the respondent-Bank in terms of the principle laid down by the Honourable Supreme Court in Allied Bank of Pakistan's case PLD 1990 SC 497.

' In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the Banking Court. This appeal is, therefore, dismissed. However, Executing Court is directed to consider the contention of the appellants qua depositing of Rs,500,000 to the respondent-Bank on 29-9-2002 at the time of deciding the execution petition.