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Petitioner: The BANK OF PUNJAB VS Respondent: DEWAN FAROOQUE MOTORS LIMITED
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: The BANK OF PUNJAB vs DEWAN FAROOQUE MOTORS LIMITED Case No.: Suit No, B-164 of 2010 Date of Judgment:2015-05-14 Reported As: 2015 CLD 1756 Result: Suit decreed
Judgment ORDER (i) C.M.A. No, 13089 of 2010 (ii) C.M.A. No, 693 of 2012 AZIZ-UR-REHMAN, J.---The plaintiff Financial Institution has filed the present suit, inter alia, for recovery of Rs,632,816,653 with cost of funds and attachment and sale of hypothecated assets under the provisions of Financial Institutions 'Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001], with the following prayers:- "(a) For payment of Rs,632,16,653 along with cost of funds for the period from the date of default till realization at the prevalent rate certified by the State Bank of Pakistan. (b) For attachment and sale of the hypothecated assets as specified in paragraphs 8, 11 and 16 hereinabove. (c) Costs of the suit. (d) Any other relief or reliefs that this Hon able Court may deem fit and appropriate in the circumstances of the present case." 2. The facts giving rise to the filing of this suit, as gleaned from the plaint are as follows: 3. The plaintiff is a banking company incorporated under the Companies Ordinance, 1984 [ORDINANCE NO.XLVII OF 1984], having its' registered office at the address mentioned in the title of the suit and for the purpose of this suit, a branch known as Jinnah Avenue, Blue Area Islamabad, is a Financial Institution within the meaning of section 2(a) of F.I.O., 2001 [ORDINANCE XLVI OF 2001]. The defendant, as averred in the plaint, has availed various finance facilities from the plaintiff Bank i,e, from time to time, as such the defendant, is a Customer of the plaintiff Bank, within the meaning of section 2[c] of the F.I.O., 2001.
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4. In consideration of the finance facilities granted to and availed by defendant, a 'hypothecation charge' over all movable assets belonging to the defendant was created, obviously, for securing the repayment of all dues owing to the plaintiff from the defendants. For and regarding creation of such charge, various documents [annexed with the plaint] including, letters of 'Hypothecation', Acknowledgments, Charge Registration Certificates, No Objection Certificates, First Supplementary Letters of Hypothecation and Supplementary Letters of Hypothecation, were also signed and executed by the defendant in favour of the plaintiff between 11th September, 2003 and March 1, 2008; 5. Per defendant's request, the plaintiff, inter alia renewed the following finance facilities vide its' offer letters dated July 19, 2007 and January 4, 2008 respectively. The offer letters, of course, were duly signed and accepted by the defendant. Details of the Facilities are given as below:- Sr. No,Nature of FacilityLimited [PKR]Mark-up [%] A Short Term Finance Facility ["STF Facility No,1"]200 Million3-Months KIBOR + 3.00% p.a. B Running Finance Facility ["RF Facility"]99.75 Million3-Months KIBOR + 3.00% p.a. C Short Term Finance Facility ["STF Facility No,2"]100 Million6-Months KIBOR + 2.50% p.a.
D Letter of Credit/Over Due Acceptance ['LC Facility']250 MillionAs per BOP SOC 6. Accordingly, on account of 'STF FACILITY NO.1', a sum of Rs,200 million was granted to and availed by the defendant. The plaintiff and the defendant thus voluntarily entered into an Agreement of Financing on a mark-up basis of December 27, 2007 [Annexure 'C' to the Plaint] in which the 'marked up price' mutually settled is Rs,232,000,000. In consideration of and as a security for the STF Facility No, 1', the defendant apart from execution of Finance Agreement of 27th December, 2007, also executed, a Demand Promissory Note for a sum of Rs,232,000,000, Letter of Authority and Undertaking for Appropriate Utilization of Loan Proceeds all dated December 27, 2007. 7. Likewise, in consideration of the RF FACILITY and repayment thereof, the defendant besides executing Agreement for Financing, Demand Promissory Note both dated 5th January, 2008, [Annexures 'E' and 'F' to the Plaint] in favour of the plaintiff in the sum of 'Marked-up Price' of Rs, 115,710,000 also created a hypothecation charge in favour of the plaintiff over its' stocks and book debts upto a maximum amount of Rs,133,000,000 by executing a Letter of Hypothecation dated January 5, 2008. Besides, a Letter of Continuity for Rs,115,710,000 and Letter of Authority both dated 5th January, 2008 were also executed by the defendant. 8. Apart from the above, at the defendant's requests, the plaintiff also made available 'STF FACILITY NO.2' to the defendant, in the sum of Rs,100 million. Regarding such Facility, the plaintiff and the defendant voluntarily entered into an Agreement of Financing of January 5, 2008. Per this agreement of Finance, marked-up price mutually fixed is Rs,116 Million. In consideration of 'STF
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FACILITY NO.2', and as security for repayment thereof, the defendant signed a letter of hypothecation dated January 5, 2008 whereby, a charge in the shape of hypothecation was also created over its 'stocks' and 'book debts', upto a maximum limit of Rs,143,000,000. Moreover, the defendant also undertook and agreed to create a lien over 'TERM FINANCE CERTIFICATES' of Pakland Cement Limited, [now called Dewan Cement Limited] valuing Rs,138.877 Million. The 'Term Finance certificates' were handed over to the plaintiff Bank by Messrs Saudi Pak Leasing, Company but the said 'TERMS FINANCE CERTIFICATES' contrary to the claim of the defendant, were not found in its' name. The plaintiff nonetheless, sent the said 'TERM FINANCE CERTIFICATES' to the issuer Company, for getting it transferred in the name of defendant but in breach of promises made by the defendant towards the plaintiff, the defendant, however, failed to get the process of transfer complete. Nonetheless, a letter of lien, in favour of the plaintiff was also issued/executed by the defendant. Besides, in consideration of and as a security for the 'STF FACILITY NO.2', granted to and availed by the defendant, the defendant, inter alia, also signed and executed a Demand Promissory Note, in the sum of Rs,116,000,000 and Letter of Authority both dated January 5, 2008. 9. Besides, the plaintiff also granted a 'LC FACILITY', wherefor, the defendant signed and executed APPLICATION-CUM-AGREEMENT(S) OF IRREVOCABLE DOCUMENTARY CREDIT dated 12-2-2008, 1-3- 2008 and 6-3-2008. As requested, the plaintiff accordingly established letter of credits [In short LCs.] as follows:- L/CDate of OpeningFavouringOverdue acceptanceForeign/LocalDue dateService ChargesMark-up Accrued Account 30-6-2010 [PKR] 2008/02519-2-2008Hyundai 99,647,940Foreign 19-8- 2008119,577.5344,109,160.60 Motor Company. Seoul. Korea 2008/0291-3-2008 Dewan 39,960,000Local 2-7- 200839,960.0018,035,046.00 Automotive Engineering Ltd. Karachi 2008/0315-3-2008 Hyundai 109,008,163Foreign 29-10- 200810,428.3543,221,736.59 Motor Company Seoul Korea 2008/0326-3-2008KCC 8,690,293 Foreign 16-6- 2008130,809.804,208,274.36 Corporation Seoul, Korea Total Acceptance 257,306,396 300,775.67110,474,217.55 Overdue 10. In terms of the aforesaid LCs., the beneficiary thereof made shipments and the 'goods' imported, thus were received by the defendant. In respect of the said LCs., later on, 'TRUST RECEIPTS' of 21-3-
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2008, 5-3-2008, 6-3-2008 and 2-4-2008, were also signed and executed by the defendant: whereby undertakings to the effect, that the goods are received by the defendant in trust for the plaintiffs and that it shall duly make payment to the plaintiff at the relevant maturity dates. 11. Nonetheless, at the maturity, [i,e, at the time of payment to the beneficiary], the defendant however, failed and/or avoided to make payment to the plaintiff Bank whereupon, the plaintiff having been compelled to, make payment to the 'beneficiary'/'drawee bank' per commitments from its own funds. The bills drawn by the BENEFICIARIES under the said LCs, were retired by creating Past Due Acceptances. The details of which are as follows:-- Date of PDA A/c No, L/C No, Amount [Rs,] 16-6-2008 PAOA10000110872008/032 8,690,293 2-7-2008 PAO10000111952008/029 39,960,000 19-8-2008 PAOA10000116242008/025 99,647,940 20-10-2008 PAOA10000119112008/031, 109,008,163 Total: 257,306,396 12. Needless to say, each of the Finance Facilities as described in the preceding paragraphs, were fully availed and utilized by the defendant, however, the defendant in its wisdom failed to make payment under the `RF FACILITY' on 31-8-2008, the `STF FACILITY NO.1' on 31-12-2008, `STF FACILITY NO.2' on 1-4-2009 and 'LC FACILITY', on the respective due dates. Despite, requests and reminders for making payment of the outstanding dues under each of the aforesaid Finance Facilities, the defendant however, failed and/or ignored to fulfill its contractual obligations thus it committed clear-cut default. 13. The particulars of the due amounts 'facility-wise', are as follows:-- A.FACILITY-WISE PRINCIPAL AVAILEDAMOUNT [PAK RS.] RF Facility 98,946,883 STF Facility No,1 200,000,000 STF Facility No,2 100,000,000 LC Facility/Overdue Acceptances257,306,396 Total Availed Amount 656,253,279
B. FACILITY-WISE PRINCIPAL AMOUNT REPAID RF Facility Nil STF Facility No,1 200,000,000 STF Facility No,2 Nil LC Facility Overdue AcceptancesNil
C. FACILITY-WISE PRINCIPAL OUTSTANDING RF Facility 98,946,883 STF Facility No,1 Nil STF Facility No,2 100,000,000 LC Facility 257,306,396
D. TOTAL OUTSTANDING PRINCIPAL456,253,279.
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E. FACILITY-WISE MARK PAYABLE RF Facility 36,079,158 STF Facility No,1 1,171,397 STF Facility No,2 28,537,825 LC Facility/Overdue Acceptances110,474,218 Service Charges 300,776
F.FACILITY-WISE MARK-UP REPAID RF Facility Nil STF Facility No,1 Nil STF Facility No,2 Nil LC Facility/Overdue AcceptancesNil
G.FACILITY-WISE MARK-UP OUTSTANDING RF Facility 36,079,158 STF Facility No,1 1,171,397 STF Facility No,2 28,537,825 LC Facility/Overdue Acceptance110,474;218 Service Charges 300,776
TOTAL FACILITY-WISE OUTSTANDING MARK-UP176,563,374 TOTAL OUTSTANDING AMOUNT AS PER,D,+H,632,816,653 14. Per plaintiff's version, the defendant at present, is truly liable to pay to the plaintiff Bank, a sum of Rs,632,816,653 in respect of the aforementioned Finance Facilities, which the defendant however, has failed, avoided and/or neglected to pay the same despite its promises and assurances. 15. Upon filing of the suit, process under section 9[5] of F.I.O., 2001, was issued to the defendant by all requisite modes including publications in two Newspapers i,e, Daily 'Dawn' English and Daily 'Jang' Karachi, both dated 24th September, 2010. In response, the defendant filed its Leave to Defend Application under section 10 of the F.I.O., 2001 bearing C.M.A. No,13089 of 2010 and in reply thereto, the plaintiff has also filed its' Replication under section 10[7] of the F.I.O., 2010 on 2nd June, 2011. 16. Lastly, on 13th September, 2010, when the above matter came-up before me for hearing of C.M.A. No,13089 of 2010 being an application under section 10 of F.I.O., 2001, filed by the defendant and C.M.A. No,639 of 2012 being an application under section 39, Rules 1 and 2, C.P.C., filed by the plaintiff Bank, then I heard Mr. K. K. Agha, learned counsel for the plaintiff Bank and Mr. Adnan I. Chaudhry, learned counsel for the defendant and with their valuable assistance also gone through the available record before me. 17. Mr. Adnan I. Chaudhry, learned counsel for the defendant, forcefully argued that initially the Finance Facilities were extended in the year, 2005 but thereafter on the expiry of each facility, the amount then due including 'markup' was 'rolled over' into the principal sum, clearly in violation of
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State Bank's directives. Nonetheless, the 'markup upon markup' as was claimed by the plaintiff Bank has also been paid by the defendant. Per Mr. Adnan stand, the amount though not being lawfully payable was, however, paid. But, in any event, the defendant is entitled to seek refund/adjustment of the paid amount, however, after complete and proper calculations of the lawfully payable markup. Mr. Adnan, further contended that amount of principal and 'mark-up' already due, in no event could be capitalized and that too without any actual disbursement. By doing so, the Bank in actual fact, has compounded 'mark-up' upon 'mark-up' manifestly, in clear violation of the directives of State Bank of Pakistan [In short SBP]. Charging of mark-up over mark- up amounts to 'Ribas as such is 'Haram' in Islam. 18. Mr. Adnan I. Chaudhry, learned counsel for the defendant further argued that 'roll over' of the principal and mark-up into a new finance facility and thereafter, charging of further mark-up thereon, does constitute a case of charging of 'mark-up' over 'mark-up' which, of course, is prohibited under SBP's Circulars i,e, BPD's Circular 13 and 32 issued by SBP in the year, 1984 as well by provisions of F.I.O., 2001. Mr. Adnan, next contended that most of the documents annexed with the plaint were got signed in blank and now in these documents incorrect figures have been inserted. The execution of such documents, per Mr. Adnan, have been obtained/procured, by the plaintiff Bank, in violation of the mandatory provisions of section 18 of F.I.O., 2001 [ORDINANCE, XLVI of 2001]. 19. Per Mr. Adnan I. Chaudhry, learned counsel for the defendant also argued in vehemence that the information as provided in terms of section 9(3) of F.I.O., 2001 by the plaintiff-Bank is in- sufficient compliance of subsection (3) of section 9 of F.I.O., 2001. Moreover, all the 'debit entries' made in the statement of accounts are incorrect, therefore, are denied by the defendant. According to Mr. Adnan I. Chaudhry, learned counsel for the defendant, no any amounts, as claimed, are due or otherwise, payable by the defendant. It is next contended by Mr. Adnan, learned counsel for the defendant that the outstanding amounts of LC's could have been converted into funded forced PAD facilities, of course, without any consent of defendant. In any event no 'mark-up' on L/C facility/overdue acceptances i,e, Rs,257,306,396 is payable as 'clause-2' of the Application and Agreement for Irrevocable Documentary Credit mentions no rate of 'markup' that is to say is blank. As far as 20% liquidated damages as stipulated in 'clause 4' of the conditions, APPLICATION-CUMAGREEMENT FOR IRREVOCABLE CREDIT is concerned, the same under law cannot be granted without putting the Bank to the condition to lead evidence. 20. Mr. Adnan I. Chaudhry, learned counsel for the defendant in support of his contentions, placed reliance on the following case-laws:- (a) Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited and 3 others [2011 CLD 408] (b) Pakistan Kuwait Investment Company (Pvt.) Limited through Authorized Representative v. Messrs Active Apparels International and 6 others [2012 CLD 1036[ (c) United Bank Limited v. Mehmood Ilyas Khan and another [2012 CLD 1372] (d) Apollo Textile Mills Ltd. And others v. Soneri Bank Ltd. [2012 CLD 337] (e) Habib Bank Ltd. v. Karachi Pipe Mills Ltd. [2006 CLD 842] (f) Messrs Saudi Pak Commercial Bank v. Messrs Lucky Textile (Pvt.) Ltd. And others [2007 CLD 1005] (g) HBL v. Al-Jalal Textile Mills Ltd. [2003 CLD 1007] (h) Mushtaq Ahmed Vohra v. Crescent Investment Bank Limited [2005 CLD 444] (i) Habib Bank Limited v. Messrs Qayyum Spinning Limited and others [2001 MLD 1351] (j) (j) United Bank Ltd., Karachi v. Messrs Gravure Packaging (Pvt.) Ltd. And 4 others [2001 YLR 1549] 21. In contra, Mr. K. K. Agha, learned counsel for the plaintiff Bank vehemently argued that the so- called 'substantial questions' of law and facts, as claimed by the defendant are not only mis- conceived, false, and baseless but also seem a mala fide attempt; on the part of the defendant to
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delay and/or frustrate the recovery process of lawful dues of the plaintiff. Per learned counsel, it is a very sorry state of affairs that for the last about 5 years, the LEAVE TO DEFEND APPLICATION is pending without any progress. The evasive and pseudo pleas as raised by the defendant, per Mr. K. K. Agha, need no consideration and the LEAVE TO DEFEND APPLICATION straight away is liable to be rejected. Mr. K. K. Agha, learned counsel for the plaintiff, further contended that by not denying PARAS 1 to 3, 5 and 9 to 14 OF THE PLAINT, the defendant actually besides admitting the execution of the financing documents has also admitted the availment of STF FACILITY NO.1., RF FACILITY, STF FACILITY NO.2, and LC. FACILITY. The defendant's clear admission of the availment/renewals of the aforementioned finance facilities and execution of the financing documents, indeed, dis-entitles the defendant for grant of 'Leave-to-Defend' the suit. 22. Per Mr. K. K. Agha, learned counsel for the plaintiff Bank, the 'Running Finance facility', was initially granted to and availed by the defendant in the end of the year, 2003, however, it was renewed subsequently, at the request of the defendant i,e, from time to time under Facility Offer Letters of 14- 12-2004, 25-8-2005, 26-12-2006, 19-7-2007 and 4-1-2008. According to the learned counsel, all the 'Facility Offer Letters', have been duly accepted by the defendant through signing; sealing and thereafter returning duplicates thereof to the plaintiff. Moreover, per defendant's request vide letter dated 8-9-2003, the plaintiff in turn vide its' letter of 20-9-2003 duly 'disbursed' a sum of Rs,100,000,000 [One Hundred Million only] to the defendant by enclosing a Demand Draft No,60055393 dated 20-9-2003 in favour of the defendant. Evidently, per Mr. Agha, a sum of Rs,100 million was disbursed to the defendant instead of Rs,99.750 million [Rs,250,000 in excess], however, at the request of the defendant, the plaintiff Bank, no doubt, subsequently, wrote an internal Memo No,BOP/ID/BA/CR/2003/1049 dated 25-9-2003 to its' SVP/Chief Manager, whereby, ratification/confirmation with regard to disbursing Rs,250,000 in excess, was sought from him. 23. Per Mr. K. K. Agha, the plaintiff Bank had also written a letter dated 25-9-2003 to the defendant regarding deposit of excess amount in the sum of Rs,250,000 with the plaintiff so that the actual position is got regularized. From the above position/documents, it is quite clear rather established, that the Running Finance Facility, was fully disbursed to and availed by the defendant. Like-wise, per Mr. K. K. Agha, the 'STF FACILITY NO.1, 'STF FACILITY NO.2' and 'L/C FACILITY' were also fully disbursed by the plaintiff to the defendant in the manner as below:- A. STF FACILITY NO.1:- This facility was disbursed by the plaintiff to the defendant vide Payment Order No,00411001 dated 27-12-2005 Rs,100,000,000 issued by the plaintiff in favour of the defendant and payable at Bank of Punjab, I.I. Chundrigar road branch, Karachi. B. STF FACILITY NO.2:- This facility was disbursed by the plaintiff to the defendant vide Payment Order No, 00411041 dated 31-12-2005 Rs . 200 , 000 , 000 issued by the plaintiff in favour of the defendant and payable at Bank of Punjab I.I. Chundrigar road branch, Karachi. C. LC FACILITY:- Since the defendant failed to make payment to the plaintiff upon maturity dates as mentioned in para 16 of the plaint, therefore, the plaintiff made payment to the beneficiaries of LCs from its own funds vide the following swift messages and demand draft:- (a) Swift Message dated 14-6-2008 for Japanese Yen JPY 13,978,274 sent to the National Bank of Pakistan, Tokyo Japan relating to LC No,2008/032. (b) Swift Message dated 28-5-2008 for $ 1334224/24 sent to the National Bank of Pakistan, Seoul Branch Korea, relating to LC No,2008/031. (c) Swift Message dated 18-3-2008 for $ 1332166/71 sent to the National Bank of Pakistan, Seoul Branch Korea relating to LC No,2008/025.
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(d) Demand Draft No,00595248 dated 2-7-2008 for Rs,39,960,000 sent to Mybank Ltd., Foreign Trade Processing Centre I.I. Chundrigar road branch, Karachi through the plaintiffs letter No,BOP/BA/ISD/2008/757 dated 2-7-2008. 24. Mr. K. K. Agha, learned counsel for the plaintiff Bank, next contended that it is absolutely incorrect and mis-leading to say that the outstanding principal amounts and 'mark-up' in respect of each of the aforesaid facilities granted to be availed by the defendant, as alleged was repaid or otherwise, it was capitalized in any manner which as alleged had/has resulted in, 'mark-up over mark-up'. Indeed, per Mr. K. K. Agha, after 'initial disbursement' of the facilities, the same have also been renewed but of course, with consent and at the request of the defendant as on expiry dates of facilities, the defendant was unable to pay the outstanding dues. Needless to say, upon renewal the amount of each facility[ies], was placed at disposal of the defendant. The defendant, no doubt, was at liberty to utilize the same from time to time as per its' need, which in the present has been done. Under such circumstances, the allegation of any capitalization of the outstanding balances, besides, misconceived mis-leading, is after-thought and seems an attempt to gain time. 25. Mr. K. K. Agha, without admitting the signing of blank documents, further submitted that the so- called signing of blank documents by the defendant, is absolutely incorrect. Besides, it makes no ground for grant of Leave to Defend the suit. The defendant, it is worth to mention, has never before denied and/or challenged the correctness and genuineness of any of the financing documents that is to say in any of its' letters or correspondence from the date of grant to and availing of the facilities by the defendant. The defendant, at this belated stage in its' own wisdom has chosen to allege the signing of documents in blank. Such frivolous pleas obviously, are being raised by the defendant with a view to forestall and/or and frustrate the recovery of the plaintiff's lawful dues. 26. Per Mr. K. K. Agha, the defendant by way of raising false and hyper-technical pleas, could not become entitled for grant of any leave to defend the suit. The pleas raised by the defendant beside dishonest seem the outcome' of mala fide intention of defendant to usurp the plaintiff s lawful dues. The defendant, it is worth to note, has also admitted its' liability in various letters addressed to the plaintiff, particularly letter dated 16-6-2006, 27-6-2006, 5-7-2007, two letters both dated 11-10- 2006 and two letters dated nil. Moreover, signing of 'Finance Agreements' coupled with 'Promissory Notes' is due acknowledgment of the liabilities. The 'evasive' and baseless denials of the defendant, much-less, at this stage is meaningless. No doubt, the defendant is fully liable to pay the outstanding amounts owed to the plaintiff Bank. By inserting true details and particulars of the transactions in Para 19 of the plaint, the plaintiff, to the knowledge of the defendant, has fully complied with the statutory requirements of section 9[3] of the F.I.O., 2001. Moreover, all the debit entries appearing in the statements of accounts are genuine, true and conclusive proof of the outstanding liabilities of the defendant. Needless to say, that the Finance Agreements and 'Promissory Notes' have been duly signed and executed by the defendant that is to say voluntarily. Per Mr. K. K. Agha, the so-called details and statements submitted by the defendant are incorrect and baseless. 27. Per Mr. Agha, the requirements of section 10 of F.I.O., 2001, have not been complied with by the defendant itself. As such, under the afore-said circumstances, the defendant has not only failed to raise any substantial question of law but also failed to raise substantial questions of facts, which may need evidence. Lastly, Mr. K. K. Agha contended in vehemence, that the application for Leave- to-Defend bearing C.M.A. No,13089 of 2010, is liable to be dismissed as the defendant has badly failed to raise any substantial questions of law and facts. The application for Leave-to-Defend the suit thus merits no consideration and as such is liable to be dismissed with costs. The plaintiffs suit consequently deserves to be decreed as prayed. 28. Heard.
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29. Before proceeding further, I would like to briefly discuss the various facilities in the light of respective Finance Agreements as follows: (a) RF-Facility: It is significant to note that in the year, 2008, the 'RF Facility', granted to and availed by the defendant was renewed on the terms and conditions mutually agreed between the parties. For the purpose of renewal, inter alia an Agreement for Finance [Annexure 'E' to the Plaint], was duly signed and executed by the defendant. Per this Finance of January 5, 2008, the 'Sale Price' and 'Purchase Price' as having mutually agreed between the parties; is Rs,99,750,000] and…
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