Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
Suit No. B – 28 of 2015
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Date |
Order with signature of Judge |
Mr. Zayyad Khan Abbasi, advocate for the plaintiff.
Syed Muhammad Kazim, advocate for the defendant.
Date of hearing : 08.09.2015.
ORDER ON C.M.A. No. 9425 of 2015
NADEEM AKHTAR, J. – This application has been filed by the defendant-bank under Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, praying that unconditional leave to defend be granted to it to defend this Suit.
2. This Suit has been filed by the plaintiff as the customer of the defendant-financial institution for declaration, rendition / settlement of accounts, recovery of money, damages and permanent injunction. It is the case of the plaintiff, as averred in the plaint, that he is a regular customer of the defendant and was granted various finance facilities between the period 2006 to October 2014, and the last facility was valid till 30.09.2015. The said facilities were secured by hypothecation, lien over export, lien on import, and equitable mortgage in respect of three immovable properties. In May and June 2014, the plaintiff approached the defendant for restructuring the facilities, and at one stage it was agreed that one of the mortgaged properties will be sold to settle the ERF Part-I Shipment facility. On 10.10.2014, a sanction letter was issued by the defendant in respect of a new facility with the understanding that the defendant will release two properties and the term finance facility of Rs.10.000 million will be reduced. The plaintiff paid an amount of Rs.100.000 million to the defendant on 23.12.2014 through a pay order, when it was agreed that all personal guarantees furnished by the owners of the immovable properties will be returned by the defendant and CIB clearance will also be provided. The defendant verbally agreed that an amount of Rs.116.500 million will be adjusted, but the documentation in respect thereof was not completed. Vide letter dated 21.01.2015, the plaintiff requested the defendant to release personal guarantees as the defendant had received an amount of Rs.100.000 million from the plaintiff. It is alleged that despite all efforts by the plaintiff, the defendant failed to provide statements of accounts to him reflecting adjustment of Rs.116.500 million paid by him, and also failed to return the personal guarantees. It has been specifically alleged in the plaint that the plaintiff has paid an excess amount of Rs.3,572,889.00 to the defendant. In view of the above averments and allegations, the plaintiff has prayed inter alia that accounts in this matter be taken, a decree in the sum of Rs.3,572,889.00 with markup thereon at the rate of 18% per annum be granted, a decree for damages in the sum of Rs.100.000 million be also granted, and the defendant be restrained from issuing threats or causing harassment to the plaintiff.
3. In its application for leave to defend, the defendant has denied all the above averments, assertions and allegations, and has claimed that the plaintiff is liable to pay an amount of Rs.162,797,003.00 to the defendant towards the principal amounts and markup in respect of the facilities described in paragraph 18 of the application. In addition to the prayer for grant of unconditional leave to defend the Suit, the defendant has also prayed that the Suit, being not maintainable, be dismissed.
4. It is clear from the allegations and counter allegations made by the parties against each other that the dispute between them relates purely to accounts as they have claimed specific amounts against each other. Moreover, the Suit is for rendition of accounts and damages. None of the above questions can be decided on the basis of the pleadings of the parties or without allowing them to lead evidence in support of their respective claims. This being the position, the question of maintainability of the Suit raised by the defendant can be decided at the time of final arguments.
5. In view of the above, this application is allowed and unconditional leave is granted to the defendant to defend this Suit. By treating the application as written statement under Section 10(10) of the Ordinance of 2001, following issues are settled :
1. Whether the Suit is maintainable ?
2. Whether the defendant has received an excess amount of Rs.3,572,889.00 from the plaintiff ?
3. Whether the plaintiff is liable to pay an amount of Rs.162,797,003.00 to the defendant as detailed in paragraph 18 of the written statement?
4. Whether the defendant is liable to render accounts in respect of the finance facilities availed by the plaintiff ?
5. Whether the plaintiff is entitled to damages as prayed for in this Suit ?
6. Whether the plaintiff is entitled to the reliefs sought in prayers (a) and (e) ?
7. What should the order / decree be ?
List of documents and witnesses to be filed by the parties within fifteen (15) days.
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J U D G E