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Petitioner: Anees-Ur-Rehman VS Respondent: Messrs Faysal Bank Limited through Manager
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Aziz-ur-Rehman Title: Anees-Ur-Rehman vs Messrs Faysal Bank Limited through Manager Case No.: C.M.A. No. 1619 and 1st Appeal No. 12 of 2018 Date of Judgment:2019-10-07 Reported As: 2020 CLD 473 Result: Application dismissed
Judgment ORDER AZIZ-UR-REHMAN, J.---The Appellant through the instant Application under Order VI, Rule 17, C.P.C. bearing C.M.A. No.1619 of 2018, is seeking 'amendments' in short Order dated 23.02.2018, passed by a Division Bench of this Court whereby , the 1st Appeal No.12 of 2018 [Anees-ur-Rehman v. Messrs Faisal Bank Limited ], was dismissed , however , with no order as to cost [the aforesaid 'short order' it is needless to say, was followed by 'detailed reasons', recorded on 15.03.2018]. The prayer sought through the listed Application under Order VI, Rule 17 bearing C.M.A. No.1619 of 2018, filed by the Appellant herein on 11.06.2018 , which we propose to decide the same, however , is for setting aside of Order dated 04.01.2018 , passed by the learned Banking Court-I, at Karachi, against which order , the above 1st Appeal No.21 of 2018, was dismissed by our aforesaid short order dated 23.02.2018. For ready reference the 'prayer' sought in C.M.A. No.1619 of 2018 , is reproduced herein-below:-- The Appellant prays that this Honorable Court may graciously be pleased to set aside the impugned order dated: 04.01.2018 passed by the learned Judge of Banking Court-I at Karachi with the directions to decide the suit in accordance with section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 strictly on merits and keeping in view of the principle of natural justice and equity or alternatively the Hon'ble Court may please pass suitable order on facts and law of the case considering section 176 of Contract Act. [Underlining is ours] The Appellant seeks costs and any further or other relief prayed for on groun ds deemed appropriate by this Honorable Court on the circumstances of the case. 2. Facts of the case, in brief, are that the Appellant herein, filed a Banking Suit No.759 of 2012 [Anees-ur-Rehman v. The Manager Faysal Bank of Pakistan ] for 'Declaration' -under Financial Institu tions (Recovery of Finances) Ordinance, 2001 [In short F.I.O., 2001], before the Banking Court No.1, at Karachi. The prayers sought in the said suit for 'Declaration' are reproduced herein-below :
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(i). To decree the plaintiff of the said Term Deposit Nos.12 and 31 of Rs.4,60,000/- (rupees four lacs sixty thousand) and Rs.2,60,000/- (rupees two lacs sixty thousands) respectively and entitle profit of Rs.2,23,183/- (rupees two lacs twenty three thousand one hundred eighty three only) and Rs.1,2 6,100/- (rupees one lac twenty six thousand one hundred only), total amount of Rs.10,69,280/- (rupees ten lac sixty nine thousand two hundred eighty only) against the defendants . [Underlining is ours] (ii). To direct the defendant to adjust the above worked out amount against the loan of Safa Sportswear as per request vide letter No. Nil dated 18-04-201 1, acknowledge by the bank. (iii). Any other relief/relieves which the Hon'ble Court may be pleased to deem fit and proper in the circumstances of the case. 3. Upon service, the Defendant Bank i.e. Faysal Bank of Pakistan, Faysal House, Shahrah-e-Faisal, Karachi, filed an Application under section 10 of Financial Institutions (Recovery of Finances) , 2001 [Ordinance, No. XLVI of 2001], for seeking un-conditional leave to defend the suit 'inter alia' raising therein, 'preliminary legal objections' regarding maintainability of the Banking Suit No.759 of 2012, filed by the Plaintif f-Appellant herein. Out of the 'preliminary legal objections', the relevant preliminary objections i.e. 'A', 'B', 'D', 'F', 'G' and 'H' regarding maintainability of Suit No.759 of 2012, filed by the Plaintif f [Appellant herein], against Defendant Bank [Respondent Bank herein], are reproduced herein-below:-- A. That the present suit is hopelessly time barred as the TDRs in question had been deposited with the answering defendant in 2006, as according to the own showing of the plaintiff and the said TDR's had been deposited with the Defendant in 2006 which had been encashed and adjusted against the liabilities of the plaintiff and his son-in-law way back in 30.09.2008 and 29.09.2007, whereas the present suit has been filed in January 2013 after a lapse of 5 to 6 years more over no condonation of delay has been sought thus on this count alone the present suit merits to be dismissed with special cost. B. That the present suit is hit by the Non-Compliance of section 9(3) of F.1.0., 2001 thus on this count alone the present suit merits to be dismissed. D. That the plaintiffs attitude and the filing of the present suit is hit by principle of lathes and acquiescence more particularly after committing default as such the agreement in question is acted upon, rendering the plaintiff liable by virtue of doctrine of promise, silence, approbation and reprobation as envisaged in the Quranic verses i.e. one in opening Surha MAIDA and that of other appraising in Surha AL-SARRA exclusive of other Quranic verses according to which a duty is cast upon the plaintiff to fulfill the promise, honor the commitment and discharge the obligations to satisfy legal commitment of the contract in question. F. That the present suit had been malapdely filed by the plaintiff after a lapse of 5 to 6 years in order to blackmail the defendant as the plaintiff is well aware that TDRs that were pledged with the defendant had been rightly encashed by the defendant the plaintiff was well satisfied with the said redemption which had attained finality and at this belated stage had filed the present suit only to pressurize the answering defendant and to get waivers in the default running account of Safa Sports W ear in which the plaintiff is a guarantor all sums due and payable. G. That the title suit is hit by the principle of MIS-JOINDER AND NON-JOINDER of the parties. As the plaintiff had malafidely not joined the proprietor of Safa Sports Wear for whom the plaintiff had stood guarantor for the repayment of all sums that were due and payable by Safa Sports Wear and the other guarantor of the said facilities. H. That the title suit is not maintainable against the answering defendant as the plaintiff is the guarantor of the Messrs Safa Sports Wear who had availed the finance facilities from the defendant and after fully utilizing the same had created a default in making repayment thus is hit by the provisions of section 37 of Contract Act, hence the suit of the plaintiff liable to be dismissed on this sole ground. 4. The Plaintif f-Appellant herein, in response to the 'Bank's Leave to Defend Application' had also filed 'REPLICA TION ' under section 10[7] of F.I.O., 2001 [Ordinance No.XL VI of 2001], with a heading 'REPLICA TION' TO APPLICA TION UNDER SECTION 10 OF FINANCIAL INSTITUTIONS [RECOVER Y 'OF FINANCES], ORDINANCE, 2001, ON BEHALF OF PLAINTIFF BEING A GUARANT OR AND PLEDGOR . The said 'Leave-to- Defend Application' under section 10 of F.I.O., 2001, filed by the Defendant Bank [Respondent Bank herein], was
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granted un-conditionally by Banking Court-1, at Karachi vide Order dated 13.05.2014 . The material part of leave granting Order reads as follows:- "The perusal of the record reveals that the plaintiff along with application for leave to defend the suit has filed various charge documents and letters exchange between the parties as Annexure L/7 to L/43. The said charge documents pertains to advance of finance facility extended to the plaintiff and Messrs Safa Sportswear and its guarantors as charging in the present suit. It is apparent that the TDRs in question were pledged against the finance facilityto the plaintiff and Messrs Safa Sportswear . The question' raised by the defendant constitutes substantial question of law and facts which was not called in question by the other side, thus matter require recording of evidence. Therefore the application for leave to defend the suit filed by the defendant Bank is hereby granted unconditionally ." [Underling is ours] 5. The Plaintif f-Appellant herein, much after the granting of the Bank's 'Leave-to-Defend Application' on 13.05.2014 , in his own wisdom opted to file an Application on 04.09.2014 seeking thereby , about '19 Amendments' in the shape of 'Declaration' and 'Directions'. The said Application filed by the Plaintif f [Appellant herein], was forcefully opposed by the Defendant Bank. The grounds/ pleas 'inter alia' raised by the Bank in ef fect and extent are as follows: - a. That amendments could only be allowed if, two conditions are fulfilled i.e. Firstly the amendments should not change the nature of a suit and Secondly a new 'cause of action' is not set up. Whereas, the amendments sought in the present case in fact are aimed to bring in/ introduce a totally new 'cause of action' as the initially filed Plaint is/ was about the Certificates pledged by the plaintif f, as a security against finance facility granted to and availed by Messrs Safa Sportswear and ex-facie [see prayer clause] only pertains to [only to two [2] Terms Deposits] i.e. Nos.12 and 31, whereas, in the present application so many new pleas had been raised which indeed are in clear violation/conflict of 'Para No.11' of the plaint where-under , the alleged 'cause of action' in favour of the Plaintif f [Appellant herein] has been claimed. b. That the 'amendments', as sought could not be allowed, as it puts forth, a totally new case on the basis of inconsistent/ derogatory pleas having been raised/already taken in the plaint. Further , the new reliefs in shape of 'Declarations' and 'Directions' as sought would not only change the 'cause of action' but also the complexion of the Suit No.759 of 2018 which, indeed, would take away the vested rights of the Defendant Bank [Respondent Bank herein]. New pleas if, in any manner are allowed to be brought on record then, the rights of the Defendant Bank [Respondent Bank], of course will be hampered, and prejudiced. c. The application for 'amendments' it appears has been filed with a 'mala fide intention' and with a view to waste the precious time of this Court, otherwise, it is a well settled proposition of law that 'amendments', can only be allowed where, there exists a formal defect and needs to be cured due to a mistake of fact or mis-apprehension. In the present case, the Plaintif f, however , has sought about '19 amendments' which, indeed, if allowed would change the complete structure of the suit. Moreover , the figures referred to in the application for 'amendments' has no nexus, as far as in Suit No.759 of 2018 is concerned, as the Plaintif f in the said suit has only sought relief in respect of i.e. Terms Deposit of Rs.460,000.00 and Rs.260,000.00 with a further claim on account of the alleged profit of Rs.223,183.00 and Rs.126,100.00. In this regard reference can be made to the prayer clause of Suit No.759 of 2018. d. Moreover , in the plaint a direction has been sought for adjusting the total claim of Rs.1,069,280/- against loan facility of Messrs Safa Sportswear , whereas, by filing the present application the plaintif f has made a vague attempt to distort the material facts available on record. According to the Banks' stand, the Plaintif f is a habitual litigant who from time to time on the basis of such false pleas make vague attempts. Needless on the basis of such false pleas and 'assertions' earlier had also filed Suit No.715 of 2012 [Uzma Tabbasum v. National Saving Centre and Faysal Bank ], which suit, however , was later-on 'withdrawn un-conditionally' . The Amendments Application, thus, besides being frivolous needs to be dismissed, as, even otherwise the same is, hit by the doctrine of RES JUDICA TA. e. The Application filed by the Appellant [Plaintif f] for 'amendments' seems in negation of the provisions of the Financial Institutions [Recovery of Finances] Ordinance, 2001. Thus, 'ex-facie' the suit as 'framed' and 'filed' by the Plaintif f [Appellant herein] was not fulfilling the 'mandatory requirements' of law, as such, its' dismissal was sought by Defendant [Respondent herein].
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6. The Plaintif f's-Appellant's Application for 'amendments' when came-up before the learned Banking Court-I Karachi along with another Application under Order I, Rule 10, C.P.C. then, while dismissing both the said Applications the plaint , in Suit No.759 of 2012 [Anees-ur-Rehman v. Faysal Bank of Pakistan ] was rejected under Order VII, Rule 11, C.P.C., in view of the 'Legal Preliminary Objections', raised by Defendant Bank/Respondent Bank herein, as the said Suit filed on 13.12.2012, was found not maintainable under law and hopelessly time barred. Needless to say, the Plaintif f's Suit No.759 of 2012 [Anees-ur-Rehman v. Faysal Bank Limited ], since, was based on TDR of Rs.460,000/- vide TDR deal No.12 dated 01.07.2006 and TDR of Rs.260,000/- vide TDR deal No.31 dated 28.09.2006, which TDRs, according to Defendant Bank [Respondent Bank] stand, were 'encashed' and 'adjusted' [against the liabilities of the Plaintiff and his son-in-law ], long ago i.e. on 30.09.2008 and 29.09.2007 respectively . 7. Per record, the Plaintif f [Appellant herein ] and his son-in-law had/have availed 'finance facilities' in the names of their 'sole proprietorship concerns' viz. [i]. Anis Sportswear and [ii]. Safa Sportswear respectively , from Prime Commercial Bank Limited i.e. the predec essor-in-interest of Faysal Bank Limited, against Securities including the aforesaid TDR's, to secure the 'finance facilities', granted to and availed by 'Messrs Safa Sportswear', the sole proprietorship concern of Plaintif f's-Appe llant's son-in-law . Messrs Safa Sportswear besides being not regular in repayment, subsequently , 'stood a defaulter'. The factum of 'default' was very well in the knowledge of Plaintif f who admittedly besides, being a 'Pledger' was a 'Guarantor' like his wife. Resultantly , the Defendant-Bank [Respondent Bank], was constrained to encash/liquidate the said pledged TDRs of Rs.460,000/- and 'adjust' the proceeds thereof, amounting to Rs.494,973.73/- against the liability[ies] of Messrs Safa Sportswear on 30.09.2008 partially . As far as, the another TDR in the sum of Rs.260,000/- is concerned, the same was deposited with Bank, as a 'cash collateral security', against the finance facility[ies] granted to and availed by the Plaintif f-Appellant herein. The said TDR, was encashed on 29.09.2007 and proceeds thereof, were 'adjusted' against the outstanding dues/liabilities of the Plaintif f-Appellant. 8. On account of 'default' in repayment of the outstanding liabilities, the pledged TDR of Rs.460,000/- under deal No.12 dated 01.07.2006 belonging to the Plaintif f viz. Anees-ur-Rehman, as per Defendant Bank-Respondent Bank's version was rightly encashed and adjusted on 30.09.2008 i.e. towards partial satisfaction of the liabilities of Messrs Safa Sportswear . Like-wise, TDR of Rs.260,000/- under deal No.31 dated 28.09.2006, was also 'encashed' and 'adjusted' on 29.09.2007 , against the Plaintif f's own liabilities. 9. In the above scenario, the relief sough t by the Plaintif f [Appellant herein], if seen in 'juxtaposition' of the above, as well as, in the light of Plaintif f's-Appellant's letter dated 19.05.201 1, then, one can easily reach the conclusion that the Plaintif f's-Appellant's claim, as put forward, is/was false and bogus. In the Plaintif f's-Appellant's aforesaid letter , it is worth to note, a reference has been made to Bank's letter of 31.03.2007 . Being relevant Plaintif f's- Appellant's letter dated 19.05.201 1, is reproduced herein-below:-- Date: 19.05.201 1 Mr. Ghulam Nabi, Senior Relationship Manager , Commercial banking-South Faysal Bank Ltd. Faysal House, Shahra-e-Faisal, Karachi.
Sub: ADJUSTMENT OF OUTST ANDING FACILITIES A/C MESSRS SAFA SPOR TS WEAR (PROP . MR. WAQAR ZIA) Reference my letter dated 18.04.201 1 (copy enclosed) for the full and final settlement of subject matter to the extent of Rs.3,517,221/- in response to your letter No.PCBL/CMP-1 1/1094/2007 dated 31.05.2007 (copy enclosed) and also earlier request for the same on the above subject. A verbal query was received from bank through Mr. Imran Mushtaq (Relationship Manager) stating the fact that there does not appear any trace of term deposit of Rs.460,000/ and asked us to contact the branch office of Faysal Bank Ltd. North Karachi branch to get the status of above noted TDR.
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The undersigned (Anees-ur -Rehman) contacted Mr. Shahid Khan (Team Leader Business Banking) at 12- North Karachi branch for the updated status of TDR, who again verbally told us that the said TDR is adjusted against Running Finance in 2008 and the balance of R.F. stands at Rs.604,997/- instead of Rs.1,099,902/- communicated in the letter . An NOC may please be issued at the earliest and unadjusted excess amount of secur ities and deposits may please be made available to the credit of account of Mr. Anees-ur -Rehman held at your North Karachi branch. Here it is mentioned that since withholding of TDRs, the business of Anis Sportswear is suspended due to non- availability of funds, as Anis Sportswear was supplying garments to Aga Khan Hospital and since blocking of funds no business could be carried out. Kindly take appropriate action at the earliest. [Underlining is ours] Waiting for your kind reply . Anees-ur -Rehman son of Bashir Ahmed NIC # 42201-0663289-3 Residents of B-37, Block 13, Gulshan-e-Iqbal, Karachi.
CC: Mr . Bashir A. Shaikh Head Special Asset Management, Faysal Bank Ltd., Faysal House, Shahrah-e-Faysal, Karachi.
CC: Mr . Aarij Ali Head of Retail Banking, Faysal bank Ltd., Faysal House, Shahrah-e-Faysal, Karachi.
10. Apart from the above, Bank's letter dated 17.06.201 1, not only belies the Plaintif f-Appellant herein but also proves that the Plaintif f's claim besides being afterthought is false. The Bank's letter dated 17.06.201 1, for ready reference is reproduced herein-below:- Faysal Bank Limited (WITHOUT PREJUDICE) June 17, 201 1 1.-Mrs. Uzma T abassum Anees 2-Mrs. Anees U Rehman House No.B-37, Block-13 Gulshan e Iqbal Karachi
NOTICE OF SALE OF PLEDGED SECURITIES Please refer to your letters dated 18-04-021 1 and 19-05-201 1 wherein you consented for voluntarily liquidation of the pledged securities held as collateral against the finance facilities availed by Mr. Waqar Zia as the proprietor of Safa Sportswear We would like to inform that Prime Bank Limited which was merged with ABN Amro Bank and later on with RBS which is recently acquired by Faysal Bank Limited has never consented for settlement of total overdue at Rs. 3,517,220.84 as appeared in the first para of your letter dated 19-05-201 1. The contents of referred letter were aimed only to provide the status of overdue outstanding position of finance facilities availed by the proprietor of Safa Sportswear and request for an easily adjustment of securities. Please note that most of the securities at that time were not matured and any encashment at that point in time would have result ed in minimum realized value to fully adjust the overdue outstanding amou nt Bank has thus acted prudently and sacrificed its encashment right to provide maximum benefit to you. Some of the certificates are still not matured and were not encashed owning to above. We further confirm that currently we are not holding any TDE or lien on cash deposits in the name of Anis Sportswear or other as security against the finance facilities of Safa Sportswear as claimed by you. A term deposit
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of Rs.450,000- held on lien was liquidate d on 30-09-2008 and proceeds of Rs.494,973.73 inclusive of profit were adjusted towards Running Finance facility Rs.1,099,9M.84oSswearwhichpresent ly stands at Rs.604,997. 11 as overdue . [Underlining is ours] For your convenience the breakup of facilities availed by Safa Sports as on 17-05-201 1 is as under: 1-Running Finance Rs.604,997,1 1 2-Export Finance Rs.400,000.00 3-Export Bill Discounting Rs.604,997,1 1 4-Mark up upto 30-04- 2011Rs.2,154,389.01 Total upto 17-05-201 1 Rs.4,992,898.52
Please note we will start encashing all the securities/certificates immediately as consented by you for adjustment towards the overdue outstanding amount. SD/- S. Ghulam Nabi Shah Regional Manager SAM-South Yours faithfully Imran Mushtaq RM-SAM South Copy for information Mr. Waqar Zia, Proprietor , Safa Sportswear
11. Besides, it is significant to note, that under sections 9[3] and 10[4], both the Financial Institution[s] and a Customer[s] have 'identical statutory' obligations, not only to plead but also specifically mention in its pleadings i.e. Plaint and Leave to Defend Application[s], the amount of 'finances availed' , 'repayments made with dates ' and the 'amounts of finance to be paid' by a 'Customer-Defendant'. Apart from these 'mandatory' requirements a Customer- Defendant has been saddled with a 'further responsibility' of specifying the amounts if, disputed with facts in support thereof. A 'defending customer' under the provisions of F.I.O., 2001, is under 'obligation' to put forward a 'definite case' in terms of section 10[3], [4] and [5] of F.I.O., 2001, [XLVI of 2001]. Moreover , a Customer-Defendant in terms of the provision of F.I.O., 2001 is required to 'compulsorily' plead in 'Leav e to Defend Application', his/its' accounts and necessary facts regarding the amounts which according to a Customer-Defendant, is not repayable to the Plaintif f. Moreover , under subsectio n (8) of section 10 which is subject to section 11, a 'Customer-Defendant' needs to be granted leave to defend the suit, but on the 'consideration' of the 'contents' of 'plaint' , 'leave to defend application' and 'replication' [replica], if, in view of a Banking Court substantial questions of law or facts are raised which need recording of evidence. 12. Moreover , the scope of a Banking suit under provisions of F.I.O., 2001, [Ordinance No.XL VI of 2001] is well defined and the controversies, as per provisions of sections 9 and 10 of F.I.O., 2001 [Ordinance No.XL VI of 2001] are restricted/confined to the 'availed' , 'claimed' , 'disputed amounts' and 'facts' in support thereof. The 'controversial details', 'unnecessary facts', 'time for the trial' of the 'lis' under F.I.O., 2001, besides 'curtailed' is specified. Manifestly , under the provisions of F.I.O., 2001, trial of a 'lis' in a Banking suit, seems restricted to the quantum of 'claimed' and 'disputed' amounts. A Bank ing suit, in fact, is a suit of accounts duly based on 'credit', 'debit' and 'balance entries' properly ledgered and maintained in the Books of Accounts. 13. Further , the provisions of sections 9 and 10 of F.I.O., 2001, are 'mandatory', and parties to a Banking suit are 'compulsorily' obliged not only to plead but also to state the 'nature of accounts', otherwise, parties to a suit are bound to face the 'legal consequences', as provided under the provisions of sections 9 and 10 of F.I.O., 2001. This position is quite evident from the cases of [i]. Bankers Equity Ltd. and 5 others v. Messrs Bentonite Pakistan Ltd. through Chief Executive and 7 others [2010 CLD 651], and [iii] Apollo Textile Ltd. v. Soneri Bank Ltd.
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[2012 CLD 337 SC], wherein, it has been observed/held that provision of sections 9 and 10 of F.I.O., 2001 are 'mandatory' and non-compliance thereof, entails legal consequences i.e. rejection of 'L/D Application' and 'Plaint'. The relevant paras from the aforesaid cases are reproduced herein-below:-- a. 2010 CLD 651 D.B. 19. Respectfully following the case-law already holding the field, this Court is of the confirmed opinion that the statement of facts narrating the accounts given in paragraph No.18 of the plaint and reflected in the documents annexed with the plaint have been held to be not a statement of account as visualized by the provisions of Bankers' Books Evidence Act, 1891 and therefore the plaint in the suit instituted by the appellants was not supported by the statement of accounts as per provision s of section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which provisions are held in the earlier judgments passed by the two Division Benches of this Court to be mandatory . The plaint has, therefore been rightly rejected by the learned Judge Banking Court/Single Judge of this Court vide impugned judgment dated 13-3-2002. [Underlining is ours] b. 2012 CL.,D 337 SC 17. Non-impleadment under subsections (3) and (4) of section 10 and section 9(3) ibid of accounts in terms of the said provisions, entails legal consequences under subsections (1), (6) and (11) of section 10 of the Ordinance, 2001. 20. ... Upon rejection of defendants petition for leave to defend the suit, the court on its own…
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