ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Mahmood A. Khan

I. A. No.102 of 2015

MCB Bank Limited……………….………………………………….Appellant

Versus

Syed Tasneem Hussain Zaidi…………….…..…………………..Respondent

Appellant : Through Mr. Adil Khan Abbasi, Advocate.

: Nemo for the Respondent.

Date of Hearing : 23.04.2021

Date of Short Order : 23.04.2021

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O R D E R

Instant Ist Appeal has been filed against the impugned judgment and decree dated 29.09.2015 passed by the learned Banking Court No.V at Karachi in Suit No.251 of 2012 filed by the appellant Bank against the respondent Syed Tasneem Hussain Zaidi for the recovery of an amount of Rs.278,000/- under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, whereby, the suit of the appellant Bank has been dismissed.

2. Briefly, the facts as stated in the plaint are that at the request of defendant/respondent a credit card facility in the sum of Rs.130,000/- was granted by the plaintiff/appellant vide application form duly signed by the defendant/respondent. It is pleaded in the plaint that the defendant/respondent after making few payments could not pay back the amount and committed default, as such, the suit in hand was filed. Summons were issued against the defendant/respondent through bailiff, registered postal and courier services as well as publication in two daily newspapers, the Daily Nawa-e-Waqt dated 04.07.2012 and The News dated 05.07.2012. The defendant/respondent did not personally receive the summons, as he was not found on the given address. However, service through publication was held good. The defendant/respondent due to his non-appearance was ordered to be proceeded exparte on 07.08.2012. Mr. Muhammad Rizwa Khan duly authorized attorney of the plaintiff/appellant Bank has filed affidavit-in-exparte proof alongwith concise statement of accounts reiterating the facts mentioned in the plaint and made reliance on annexures filed together.

3. The matter proceeded exparte against the respondent, who could not be served, whereas, the learned Banking Judge after having examined affidavit-in-exparte proof alongwith statement of accounts and other documents filed by the appellant Bank found certain discrepancies and defects in the statement of accounts and held that the claim of the appellant/plaintiff cannot be entertained on the basis of incomplete and defective statement of accounts, therefore, the suit was dismissed with no order as to costs.

4. Learned counsel for the appellant has argued that since there was an outstanding amount against the respondent, who availed credit facility and did not make payment of the outstanding amount as shown in the statement of accounts filed by the appellant Bank, therefore, the learned Banking Court was not justified to dismiss the suit on technical ground.

5. We have heard the learned counsel for the appellant, perused the impugned judgment and decree and the record placed on record by the appellant Bank.

6. From perusal of impugned judgment and decree, it reflects that the learned Banking Court, after having taken stock of all the relevant facts and documents filed by the appellant Bank, has noted several discrepancies and defects in the plaint of suit as well as in the statement of accounts and recorded findings of facts and law in Para 5 of the impugned judgment, which reads as follows: -

“5. I have perused the record and considered the arguments of learned advocate for the plaintiff. As per plaint and concise statement of account, it appears that credit card limit was in the sum of Rs.130,000/- which was fully utilized by the defendant and present Rs.203,971/- are outstanding on account of principal and Rs.74,029/- towards service charges. Copies of five bills have been annexed with the plaint. These were issued in the year 2009. As per bill dated 24.04.2009 previous balance was Rs.144,128/- and it reflects service charges/markup in the sum of Rs.3,714.35, late payment fee of Rs.3267.10, FED on late payment fee of Rs.326.71, over limit fee of Rs.750/- and FED on over limit fee of Rs.75/-. In subsequent months bills the balance has been shown to be increased and as per last bill dated 24.08.2009 total outstanding comes to Rs.203,971/-. In these five bills not a single transaction with regard to utilization has been shown. Outstanding balance from Rs.144,128/- have been raised upto 203,971/- in five months. About sixty thousand outstanding balance has been raised without reflecting a single entry of utilization. The whole plaint is silent regarding date of issuing credit card facility. The plaint is also silent on the date of last payment and last utilization. Application form annexed with the plaint does not reflect any date of its submission. It is difficult to assess date of cause of action, date of default and the date of utilization. During course of arguments the plaintiff’s advocate was specifically asked to submit detail statement of accounts reflecting date wise debit and credit entries of utilization & payment. Two pager statement has been filed which reflects balance, payment due, payment received, overdue and payment due dates. As per said statement Rs.2,200/- were received on 02.02.2008 and lastly Rs.10,000/- were received on 02.01.2009. On that particular date outstanding balance was Rs.133,585/-. This statement does not reflect quantum of utilization. This statement cannot be termed as statement of accounts. The plaintiff has failed to submit proper monthly bills of credit card. The bills that have been annexed do not reflect any utilization. The claim of the plaintiff cannot be entertained on the basis of incomplete and defective statement of accounts and therefore the suit is dismissed with no order as to cost. Let the decree be prepared.”

7. It is settled legal position that compliance of the provisions of Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the disclosure of relevant facts, involving date of issuance of credit facility, its utilization, repayments, date of default, etc. are some of the basic requirements of law and if, there is any defect or discrepancy in this regard, it is treated fatal to the claim of financial institutions for the recovery of the disputed amount. In the instant case, admittedly statement of account filed by the appellant Bank does not reflect quantum of utilization of finance facility. The plaint of the suit is also silent regarding date of issuance of credit facility, whereas, it also does not reflect the date of last payment and last utilization by the respondent. It has been further noted that the date of cause of action is also not ascertainable. When confronted with hereinabove defects as noted by the learned Banking Court in respect of claim of the appellant Bank, learned counsel for the appellant could not submit any reasonable response.

8. In view of above admitted position, we do not find any factual defect or legal error in the impugned judgment, which does not require any interference by this Court. Accordingly, instant appeal was dismissed in limine vide our short order dated 23.04.2021 and these are the reasons of the same.

J U D G E

Farhan-PS