IN THE HIGH COURT OF SINDH AT KARACHI
I.A.No.134
of 2011
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
1.
For
orders on CMA. No.1758/2012.
2.
For
orders on CMA. No.2499/2011.
3.
For
orders on CMA. No.1638/2012.
4.
For
Katcha Peshi.
5.
For
orders on CMA. No.1759/2012.
-.-.-.-.-.-.-.-.-.
NAIMATULLAH
PHULPOTO,J-.
08.10.2012
Mr. Abdul Jabbar Qureshi
Advocate for appellant.
-----
1. Granted.
2. Granted
for the time being subject to all just exceptions.
3, 4 & 5. Through this appeal, appellant has called in question judgment
dated 17.10.2011 and Decree dated 02.11.2011 passed by learned Judge Banking
Court No.I, Karachi, in Suit No.448 of 2010, whereby suit filed by the
Respondent/ Standard Chartered Bank (Pakistan) Limited for the recovery of an
amount of Rs.20,265,160-32 under Section 9 of the FIO 2001, was decreed in the
sum of Rs.15,875,134/- with cost of funds from November 2009 till realization
of the decretal amount.
The
facts in nutshell, as disclosed in plaint, are that Respondent/ Bank filed suit
against the appellant for the recovery of an amount of Rs.20,265,160-32,
alleging therein that on 13.09.2006, at the request of appellant/ defendant,
the Respondent/Bank sanctioned a finance of Rs.15,000,000/- (Fifteen Million
only) to the appellant, who executed required securities to secure the finance
granted by the Respondent/Bank. The appellant used financial facility
sanctioned by the Respondent/Bank, but ignored to pay back the finance in
prescribed manner and thus committed default in his obligation resulting in an
outstanding amount of Rs.20,265,160.32 due and payable by appellant to the
Respondent/Bank. Cause of action arose to the Respondent/Bank and the
Respondent/Bank filed suit for recovery and prayed as follows:-
a)
Payment
of sum of Rs.20,265,160.32 (Rupees Twenty million two hundred sixty thousand
one hundred sixty and paisa thirty two only) through the sale the following
mortgaged with the plaintiff.
Bungalow
No.30-B, measuring 1283 Sq. Yds. Survey No.26 situated at Khayaban-e-Shamsheer,
Phase-V, DHA, Karachi.
b)
Cost
of funds in terms of section 3 of the Financial Institutions (Recovery of
Finances) Ordinance 2001 on the decretal amount.
c)
Cost
of the suit.
d)
Such
other or further relief(s) that this Hon’ble Court may consider just and proper
in the circumstances.
Appellant/ defendant
filed an application for leave to defend within the statutory period. Application
for leave to defend was dismissed by learned Banking Court No.I on 23.10.2010
for the following reasons:-
“This is an
application for leave to defend moved on behalf of the defendant on the ground
that though the financial facility for the amount of Rs.15,000,000/- was
availed but the defendant has paid Rs.3,57,68,088.32 in excess of
Rs.2,07,68,088.32, learned counsel for the defendant has argued that no proper
statement of account has been filed and the markup being charged was never
agreed upon between the parties as the agreement Annexure-F to the plaint does
not show any rate of markup. The learned counsel has also argued that counter
suit has been filed claiming the excess amount paid by the defendant and that
plaint has not filed by the proper person duly authorized on behalf of the
Plaintiff. As there are substantial question of law or facts that would require
evidence, hence defendant’s be granted leave to defend.
The learned
counsel for the plaintiff has filed replication to this application for leave
to defend and during the course of arguments has pointed out that at request
made by the plaintiff for the amount of Rs.15,000,000/- and in the acceptance
letter markup at the rate of 13.50 per annum was to be charged and defendant
could not deny that the loan was extended without any markup to the defendant.
The learned counsel has relied upon 2010 CLD 828 in support of his arguments.
I have heard
the learned counsel for the defendant and learned counsel for the plaintiff as
the financial facility for the Rs.15,000,000/- has not been denied and
acceptance letter was signed by the defendant, the only dispute appear only
apparently over excess markup charged by the plaintiff. Under the circumstances
I find no substantial question of law or facts raised by the defendants, hence
I dismiss the application for leave to defend. The parties to file their
respective breakup alongwith supporting documents.”
Thereafter, Respondent/Bank
filed breakup in Court, detailed as under:-
Principle
amount outstanding Rs.14,999,916.93
Markup
as Nov. 2010 Rs.9,385,432.38
Payment
made Rs.5,368,616.40
Total outstanding Rs.19,016,732.91
Appellant failed to
file any evidence in rebuttal.
After hearing the
learned counsel for the parties, the suit was decreed as stated above.
Mr. Abdul Jabbar
Qureshi Advocate for the appellant argued that Respondent/Bank has failed to establish
the case and learned Judge Banking Court did not provide fair opportunity to
the appellant to lead evidence in rebuttal. When the learned Advocate for the
appellant failed in his attempt to substantiate his contentions, he raised
objection to the executing proceedings. Under the law, such objection could
only be raised before Executing Court. At this stage appellant cannot turn
around.
From perusal of the
impugned judgment it transpires that Respondent/Bank has produced documentary
evidence to prove appellant’s failure to repay the loan amount. Appellant did
not produce evidence in rebuttal to disprove documentary evidence of Bank. We
have come to the conclusion that un-rebutted documentary evidence of the Bank successfully
established appellant’s default in the payment of loan amount. Learned Judge of
the Banking Court has properly appreciated the evidence in accordance with
settled principles of law, not a single anomaly either legal or factual has
been pointed by learned Advocate for the appellant. No substantial objection
and/or prima facie defence was raised by the appellant before the Banking
Court. Thus in view of the unrebutted documents filed by the Bank, fully
substantiating their claim, finding recorded by Banking Court requires no
interference by this Court.
In consequence, we do
not find any merit in this appeal and the same is hereby dismissed alongwith
pending applications.
JUDGE
JUDGE