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Petitioner: ASKARI BANK LIMITED VS Respondent: SYED ZULFIQAR RIZVI
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: ASKARI BANK LIMITED vs SYED ZULFIQAR RIZVI Case No.: Suit No, B-31 of 2012 Date of Judgment:2017-05-17 Reported As: 2017 CLD 1298 Result: Suit decreed
Judgment ORDER AZIZ-UR-REHMAN, J.---The Plaintiff Bank has filed the present suit on 22.5.2012 against the Defendant under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, inter alia for Recovery of PKR 465,591,170.03 and US$ 439,147/- along with Cost of Funds and Cost of Suit, Sale of pledged/hypothecated assets/goods etc. with the following prayers:- a. A judgment and decree be passed in favour of the Plaintiff Bank and against the Defendants jointly and severally for the payment of PKR 465,591,170.03 [Rupees Four Hundred Sixty Five Million Five Hundred Ninety One Thousand One Hundred Seventy and Three Paisas Only]. And US$ 439,147/- [US $ Four Hundred Thirty Nine Thousand One Hundred Forty Seven Only]; b. Hypothecated Goods/Assets ordered to be sold for realization of the decretal amount and proceeds thereof be adjusted towards the decretal amount. The details of the hypothecated Goods/Assets are as under: "All present and future goods, stocks, raw material including stocks of rice [all kinds of rice], stock in trade stock in transit, finished, unfinished goods, processed, unprocessed, stored and lying at T.P.X, Plinth C-7 and E-6, Karachi, and Plot numbers 1 and 2, Phase II, Hawksbay Road, Karachi" "All the customer's present and future goods, merchandise, products, stocks, stocks-in-trade, raw materials, tools and spares, work in progress, finished and unfinished goods, now or hereafter stored, or located or lying at factory premises at Karachi in transit or elsewhere in Pakistan comprising of all present and future stocks, movable assets of the Customer including work in process, stocks in trade etc. or any other place of storage/godown in Pakistan and all such aforesaid goods in the course transit including goods referred by and released under trust receipts and future goods/stocks that may be brought into the above place of storage/godowns."
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All the customer's present and future book debts and receivables, outstanding moneys, receivable, claims, bills, contracts, engagement securities, rights and assets including all documents related thereto together with the benefit of all rights and contracts entered into by the customer in this regard." c. Pledged Hypothecated Goods/Assets ordered to be sold for realization of the decretal amount and proceeds thereof be adjusted towards the decretal amount. The details of the Pledged Goods/Assets are as under: "All present and future goods, stocks, raw material including stocks of rice [all kinds of rice], stock in trade, stock in transit, finished, unfinished goods, stored or lying at T.P.X, Ninth C-7 and E-6, Karachi, and Plot numbers 1 and 2, Phase II, Hawksbay Road, Karachi: d. Cost of funds in accordance with sections 3 and 17 of the Ordinance from 30.4.2012 till satisfaction of decreed amount be granted; e. If the sale proceeds are found to be insufficient, the remaining amount may be recovered by selling other movable and immovable property or properties belonging to the Defendant when discovered and pointed out by the Plaintiff Bank after passing of the personal decrees against the Defendants by this Hon'ble Court; f. Cost of the suit also be awarded; g. Any other better/consequential relief which this Hon'ble Court may deem fit may also kindly be granted in the best interest of justice. 2. The brief relevant facts leading to the above prayers are as under:- 3. The Plaintiff is a Banking Company duly licensed by the State Bank of Pakistan to carry on banking business in Pakistan and, as such, is a 'Financial Institution' within the meaning of and as defined in section 2(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 while, Defendant herein, is a sole proprietor and doing business in the name and style of Zulfiqar Trading Corporation', engaged in the business of exports and imports and has availed various finance facilities from the Plaintiff Bank. Defendant thus also falls within the meaning of 'Customer' as defined under section 2(c) of Financial Institutions (Recovery of Finances) Ordinance, 2001 [In short F.I.O., 2001]. 4. The instant suit has been instituted by the Plaintiff Bank through Syed Shahrukh Jamal son of Syed Arif Jamal and Ghulam Ali Hassan son of Ghulam Sibtain, are not only principal officers of the Plaintiff Bank but also competent and authorized to institute the present suit and also to do other acts necessary or incidental for proper prosecution of the case. Besides, they are well conversant with the facts of the case and have thus 'signed' and 'verified' the plaint on oath. 5. The Plaintiff Bank from time to time at the request of the Defendant inter alia sanctioned FAPC-I Facility, FE-25 Facility and RF Facility, in favour of the Defendant. For and in respect of FAPC-1 facility, Defendant signed and executed various documents. Copies of Plaintiffs sanction advice and other relevant documents duly 'signed' and 'executed' by the Defendant are annexed with the plaint as Annexures 'P-3' to 'P/13'. All the said documents are dated 26.12.2007 and find mention in paras 6, 7, 8, 9 and 10 of the plaint. 6. Out of the aforesaid documents there are four [04] Agreements for Finance all dated 26.12.2007, which have been entered into between the Plaintiff Bank and Defendant and are annexed to the plaint as Annexures 'P-4', 'P-5', 'P-6' and 'P-7' respectively. The details of dates of execution, 'sale prices', 'purchase prices', expiry dates,and Mark-up/Profit as given in the said Finance Agreements respectively are as follows:- S # EXECUTION DATE OF FINANCE AGREEMENTMUTUALLY FIXED SALE PRICESMUTUALLY FIXED PURCHASE PRICESEXPIRY DATE OF FINANCE AGREEMENTMARK-UP AMOUNTS [Column `D' (-) 'C']
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A B C D E F 1. 26.12.2007 Rs.460,000,000Rs.547,431,512 30.6.2008 Rs.87,431,512/- 2. 26.12.2007 Rs.110,000,000 Rs.136,077,540 30.6.2008 Rs.26,077,540/- 3. 26.12.2007 Rs.325,000,000Rs.402,047,26030.6.2008 Rs.77,047,260/- 4. 26.12.2007 Rs.325,129,000 Rs.386,925,78030.6.2008 Rs.61,796,780/- TotalRs.252,353,902/- 7. As securities, against the finance facility granted and availed, Defendant also executed hypothecation agreement and letter of hypothecation of Receivables both dated 26.12.2007 for Rs,547,431,510/- and Rs,386,925,780/- respectively. Besides, a pledged letter/agreement dated 26.12.2007, was signed/executed by Defendant. The details of the goods/stocks thereunder are:- "All present and future goods, stocks, raw material including stocks of rice (all kinds of rice), stocks in trade, stock in transit, finished, unfinished goods, stored or lying at T.P.X, Plinth C-7 and E-6, Karachi, and Plot numbers 1 and 2, Phase II, Hawksbay Road, Karachi." 8. Upon the request of defendant, another finance facility viz. FE-25, was also sanctioned by the Plaintiff Bank. Defendant in consideration thereof, signed/executed various documents i,e, [i]. Finance Agreement on Mark-up basis [for imported exports] under SBP Circular F.E.25 Scheme] foreign currency financing on Mark-up basis for an amount upto US$ 14,805,020/- [Annexure 'P/14' to the plaint] [ii]. Demand Promissory Note dated 26.12.2007 for the purchase amount of US$ 17,601,000/- [Annexure 'P/15' to the plaint] [iii]. General Financing and Collateral Agreement dated 26.12.2007 [Annexure 'P/16 to the plaint], [iv]. Letter of Hypothecation for Receivables [Annexure 'P/17' to the plaint], [vi]. Hypothecation Agreement dated 26.12.2007 [Annexure 'P/18' to the plaint]. 9. Per Plaintiffs version, the said finance facility was also disbursed as per Defendant's requests/letters from time to time along with Contract No,E 746, Geneva dated 2.11.2006 [Annexure 'P-20' to the plaint], Defendant signed, executed Various Undertakings and Demand Promissory Notes [collectively annexed with plaint as 'P-21' at page 251 to page 309] in favour of the Plaintiff Bank. The said facility was subsequently adjusted/converted to FPC-I facility. The Markup on the FE- 25 facility, as averred by the Plaintiff Bank remained outstanding. As per the Books of Accounts, on 30.4.2012, a sum of US$ 439,147/- [US$ Four Hundred Thirty Nine Thousand One Hundred Forty Seven only] is outstanding and payable by the Defendant to the Plaintiff Bank. For and in order to avail the ERF Facilities [Pre-shipment], the relevant documents submitted by the Defendant to Plaintiff Bank are: [i]. Forms-D, [ii]. Undertakings Part-I, [iii]. Sales Contracts, and [iv]. Demand Promissory Notes annexed with plaint as Annexures 'P-24' to 'P-27'. 10.Defendant, however, failed and/or avoided to adjust the outstanding liabilities in respect of above LCs/Contracts, therefore, upon expiry of specified time, SBP, debited its amounts, granted under ERF Facility, from the accounts of Plaintiff Bank along with fines, leaving Plaintiff Bank at liberty recover the outstanding amount from the Defendant. The requisite details of ERF Facility [pre-shipment], contracts numbers and outstanding principal amount i,e, Rs,305,200,000/- [Rupees Three Hundred Five Million Two Hundred Thousand only], etc in respect of which, Defendant committed default are as under : FAPC-ERF (Pre-Shipment) ERF Loan No, Own SourcesContract No. Amount of AdvanceDestination Outstanding Principal
958/08 ZTC/2K8/001 Rs.76,900,000/- Jakarta, IndonesiaRs.76,900,000/- 959/08 ZTC/2 K8/001 Rs.123,200,000/-Jakarta, IndonesiaRs.12,200,000/-
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960/08 ZTC/2 K8/001 Rs.46,200,000/-Jakarta, IndonesiaRs.46,200,000/- 961/08 ZTC/2 K8/001 Rs.58,900,000/-Jakarta, IndonesiaRs.58,900,000/- Total Rs.305,200,000/- R.F. FACILITY 11.Defendant on 01.12.2008, requested the Plaintiff for renewal/enhancement of RFF i,e, Running Finance Facility [Annexure 'P-29' to the plaint], which was not only accepted by Plaintiff Bank vide Facility Offer Letter dated 1.12.2008[Annexure 'P-30' to the plaint] but was also acknowledged by Defendant. The sanctioned/approved Running Finance Facility [RFF], was in the sum of Rs,2 000 000/, Per Agreement of Finance dated 1.12.2008 [Annexure `P-311, entered into between the Plaintiff Bank and Defendant, 'sale price' and 'purchase price' were mutually fixed at Rs,2,000,000/- [Rupees two million only] and Rs,2,100,000/-. [Rupees two million one hundred thousand only]. The 'purchase price' payable on or before 28.2.2009. In respect of Running Finance Facility, Defendant, also signed and executed various documents i,e, Demand Promissory Note for Rs,21,00,000/-, Letter of Continuity, General Financing and Collateral Agreement, Personal Guarantee of Zulifquar Ali in the sum of Rs,2,100,000/-. All the aforesaid documents are of 1.12.2008. As security, for RF Facility as well, Defendant signed and executed 'Hypothecation Agreement' and Letter of Hypothecation of receivable both dated 1.12.2008 for an amount of Rs,2,857,000/- on the Stock of Rice, Super Basmati, Iree-9, or any kind of rice, finished, unfinished, in trade/transit, stored at Godown at Zulfiqar Trading Hawksbay Road, Karachi, or elsewhere, in Pakistan. 12.On 12.1.2010, Plaintiff Bank, pursuant to the Defendant's request for renewal of finance facility dated 14.09.2010 [Annexure 'P/39' to the plaint], again through its' facilities offer letter dated 12.1.2010 [Annexure 'P-40' to the plaint], sanctioned/ approved/enhanced RF Facility of Rs,2 million which was duly acknowledged and accepted by Defendant. The Plaintiff and Defendant, this time as well entered into an Agreement for finance facility dated 26.01.2010 [Annexure 'P-41' to the plaint], whereby 'sale price' was fixed at Rs,2 million and purchase price was fixed at Rs,2.4 million. The purchase price, as per this Annexure '13-41' to the plaint, was payable on or before 28.2.2010. For and in respect of this facility, Defendant also executed 'Demand Promissory Note' for Rs,2,400,000/-, Letter of Continuity and Personal Guarantee of Syed Zulfiqar Ali in the sum of Rs,2,400,000/-. All the said documents are dated 26.1.2010. 13.Apart from the above documents, Defendant also executed Letter of Hypothecation-Current Assets dated 26.1.2010 for Rs,2,800,000/- on the present and future goods/stocks etc. as referred to and mentioned in para 28 of the plaint. Defendant, despite availing of the RF facility, however, failed and/or avoided to discharge its' payment obligations. According to the Plaintiffs version, as on 30.4.2012, a sum of Rs,2,422,623.03 is due and payable on account of Running Finance Facility [RFF]. The Plaintiff Bank, though on various occasions have made requests/demands for the payment of the outstanding amounts but Defendant despite acknowledgment of liability[ies] vide its' letter dated 1.11.2010, [Annexure 'P-53' to the plaint], has failed to liquidate the outstanding amounts in respect of all the facilities granted to and availed by Defendant. 14. The Plaintiff Bank, as required under section 9(3) Financial Institutions (Recovery of Finances) Ordinance, 2001 [In short F.I.O., 2001], has given the requisite 'breakup'/'summary' in respect of all the subject facilities i,e, [i] FAPC-I, [ii] FE-25 and [iii] RF, which respectively runs as follows:- (i) FAPC-1 FACILITY OF RS,305,200,000/- A.The amount of finance availed by the Defendant [being the total amounts withdrawn by the Defendant from time to time. [Amounts-and dates as reflected in Annexure `13/28'] B.[Rs,305,200,000/-] B.1 The amounts in respect of the principal paid by the Defendant to the Plaintiff Bank [being the
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total amounts deposited by the Defendant from time to time. [Amounts and dates as reflected in Annex 'P/28'] [NIL] B.2 The amounts in respect of the markup paid by the Defendant to the Plaintiff Bank [Amounts and dates as reflected in Annex'P/28'] [NIL] C 1 the amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto 30.4.2012. [Amounts and dates as reflected in Annex 'P/28'] [NIL] C.2 The amount of markup and other charges still payable by the Defendant towards the Plaintiff Bank upto 30.4.2012. [Amounts and dates as reflected in Annex 'P/28'] [Rs,157,968,547/-] C.3 Total amount payable by the Defendant upto 30.4.2012 (C.I+C.2). [Amounts and dates as reflected in Annex 'P/28'] [Rs,463,168,547] (ii) FE-25 A. The amount of finance availed by the Defendant [being total withdrawal from 31.12.2007 till 29.7.2008]. [Amounts and dates as reflected in Annex P/23] B.[US$12.960,000/1 B.1 The amounts paid by the Defendant to the Plaintiff Bank in respect of Principal [being total deposits]. [Amounts and dates as reflected in Annex 'P/23'] [US$12,960,000/-] B.2 The amounts paid by the Defendant to the Plaintiff Bank towards markup. [Amounts and dates as reflected in Annex 'P/23'] C.[NIL] C.1 The amounts of principal relating to the finance payable by the Defendant to the 'Plaintiff Bank upto 30.4.2012. [Amounts and dates as reflected in Annex 'P/23'] [NIL] C.2 The amounts of markup payable by the Defendant towards the Plaintiff Bank from 31.12.2007 to 30.04.2012. [Amounts and dates as reflected in Annex .'P/23'] [US$ 439,147] C.3 Total amount payable by the Defendant upto 30.4.2012 (C.1 + C.2). [Amounts and dates as reflected in Annex 'P/23'] [US$ 439,147] (iii) RUNNING FINANCE FACILITY OF RS,2,000,000/- A. The amount of finance availed by the (being the total amount withdrawn by the Defendant from time to time. [Amounts and dates as reflected in Annex P/46] B.[Rs,1,999,115.88] B.1The amounts in respect of the principal paid by the Defendant to the Plaintiff Bank [being the total amounts deposited by the Defendant from time to time. [Amounts and dates as reflected in Annex P/46] [Nil] B.2The amounts in respect of the mark-up paid by the Defendant to the Plaintiff Bank. [Amounts and dates as reflected in Annex P/47] C.[Rs,620,000/-] C.1. The amounts of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto 29.3.2012 [Amounts and dates as reflected in Annex P/46] [Rs,1,999,115.88/-]
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C.2 The amounts of mark-up and other charges still payable by the Defendant towards' the Plaintiff Bank upto 31.3.2012 [Amounts and dates as reflected in Annex P/47] [Rs,423,507.15] C.3. Total amount payable by the Defendant upto 31.3.2012 (C.1+C.2) [Amounts and dates as reflected in Annex P/46] [Rs, 2,422,623.03/- TOTAL AMOUNT PAYBALE A. FAPC-I facilityRs.463,168,547/- B. RF facility Rs.2,422,623.03 TOTAL PKR Rs.465,591,170.03 AND C. FE 25 US$ 439,147/- 15.Per Plaintiffs stand, 'RF Facility' sanctioned to the Defendant was of Rs,2,000,000/- [Rupees Two Million Only]. The Defendant, as averred by the Plaintiff from time to time, withdrew various amounts from its' account and in turn also deposited amounts in the said account. The Plaintiff Bank according to its' version, has charged markup on a day to day basis i.e mark-up charged on the exact amount that was withdrawn on a particular day and based on total turnover i,e, aggregate credit amounts, subtracted from aggregate debit amounts. 16.On filing of above suit on 22.5.2012, process under section 9(5) of F.I.O., 2001, was issued to the Defendant by all requisite modes. In response of service, Defendant filed his Leave-to-Defend Application bearing C.M.A. No,9247 of 2012 on 7.8.2012. In the Leave-to-Defend Application under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 [C.M.A. No,9247 of 2012], the availment and utilization of the finance facilities w,e,f, 31.10.1997, has not been denied, however, per Defendant's stand, Plaintiff got signed and obtained the charge/financial documents in blanks. The Plaintiff Bank apart from the above, has charged 'mark-up' over 'mark-up' and that too in absence of any valid and enforceable Finance Agreement[s]. According to Defendant's stand Rs,630.00 million, has been paid/adjusted w,e,f, March, 2008 to August, 2008, towards' full and final satisfaction of Plaintiffs claim regarding finance facility[ies] granted to and availed by the Defendant. Moreover, Plaintiff had assured that mark-up amount and other charges, charged by the Plaintiff Bank shall be waived off. 17.Regarding claim of the Plaintiff Bank, as set-forth in the plaint and pertains to three [03] credit facilities [i]. FAPC-I, [ii]. F-25 and [iii]. Running Finance Facility/Temporary Over-draft Facility (new), it was averred in the Leave-to-Defend application [C.M. No,9247 of 2012] that except last Facility. Plaintiff Bank's claim in respect of other two facilities is false and bogus. The Export Finance Facility as alleged, was never disbursed. Defendant, nevertheless, at the same time has alleged that by selling the assets the liability has been paid off. The claim of the Plaintiff Bank against the Defendant besides, time barred, is outcome of 'Mark-up' over 'Mark-up'. In Leave-to-Defend Application [C.M.A. No,9247 of 2012], it has further been alleged that complete statements of accounts pertaining to main account No,010101841-0' and Askari Saving Deposit Account [ASD], have not been placed on record, by Plaintiff Bank. Per Defendant's stand an amount of Rs,450.0 Million has been paid in A/C N.010101841-0. 18.In the Leave-to-Defend Application, under the heading of preliminary objections, it has been alleged that 'mandatory requirements' of section 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have not been complied with, as such, the Plaintiffs suit is liable to be dismissed. Moreover, the statement of account pertaining to FAPC-I [Annexure 'P-28' to plaint] and relating to period of 1.7.2008 to 26.4.2012, is not only incomplete but contains bogus entries which
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cannot be deemed and treated as a true statement of account. 19.Like-wise, the statement of account [Annexure P/23 to the plaint] relating to FE-25 facility, is nothing but a statement of mark-up charged and receivable on FE-25 facility, from 02.01.2008 to 26.04.2012. All the entries made in the said statement of account [Annexure 'P-23' to the plaint], are vague, false, fabricated and inflated. No any statement of account vis-a-vis principal portion of FE- 25, has been filed by plaintiff Bank. The claim of Plaintiff Bank, as such, is not tenable under the law and deserves to be rejected. Besides, the claim of Plaintiff Bank in respect of Export Facilities FAPC-I and FE-25, is not only time barred but based on 'closed' and 'past transactions'. As far as, the statement of accounts [Annexures 'P/46' and 'P/47'], pertaining to temporary Running Finance Fkility/Overdraft Facility [new] are concerned, the same being not readable cannot be rebutted. 20.Per Defendant's version, non-filing of complete and correct statement of accounts, as alleged, is a gross violation of section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and for this reason as well, the suit is liable to be dismissed. Moreover, the plaintiff's claim is not only baseless, false, exaggerated, but also based on concocted and sham pleas. The claim of the plaintiff Bank, according to Defendant, is nothing but based on 'Markup' over 'Markup' and Miscellaneous charges, which is not permissible to be granted in favour of the Plaintiff Bank under law. Moreover, the plaintiff has not only distorted the true facts but also has concealed various aspects of the matter, which, in view of Defendant is matter of evidence. 21.The plaintiff's claim though based on various documents, however, those documents were got signed in blank from defendant, hence, contractual obligation if any, incurred there-under, cannot be enforced. The agreements for financing i,e, Annexures 'P14' to 'P/7' and 'P-14' along with other charge documents annexed with plaint as Annexures 'P-8' to 'P-13', 'P-24' to 'P-27' and 'P-15' to 'P-18', per Defendant's version, are manipulated documents. Neither of such documents was ever executed nor otherwise, thereunder any facility was either requested or disbursed in favour of the defendant. Moreover, the charged documents i,e, Annexures 'P-8' to 'P-13', 'P-24' to T-27' and 'P-15' to 'P-18', signed and executed on 26.12.2007, are not in favour of Plaintiff Bank. No doubt, Contract No,746 dated 02.10.2007, Geneva, Switzerland [Annexure P-20 to the plaint], was executed between Defendant and Ascot Commodities NV Geneva Branch but the same was also submitted to Plaintiff Bank, along with Annexures 'P-19' and 'P-21' to the plaint for financing, as was, required for pre- disbursement requirements. The plaintiff, however, did not grant and/or disburse any finance facility thereunder to the Defendant. 22.Likewise, Annexures 'P-24' to 'P-27' to the plaint are manipulated and selves-contradictory documents. Neither any facility was disbursed in terms of the said documents nor otherwise, the said documents find any support from any of the statement of accounts available on record. Rather, most of the documents pertain to 'closed and past transactions'. The obligations, thereunder, if any, has been fulfilled by the Defendant. In Leave-to-Defend Application [C.MA. No,9247/2012], the authenticity and admissibility of all the document annexed with the plaint has/have been challenged though signatures thereon, have not been denied. Per Defendant's stance, unless complete evidence, is led in the matter till then, true liability[ies] of Defendant could be determined as Plaintiff by violating rules and regulations, has charged 'Mark-up' over 'Mark-up' beyond expiry dates of Finance Agreements which cannot be done under SBP's Circulars and laws. For this reason as well the claim of the Plaintiff Bank besides being exaggerated cannot be granted as prayed. Plaintiff, as alleged by Defendant, has no 'cause of action' against the Defendant for filing of the above suit for recovery of the outstanding amount. Lastly, in Leaveto-Defend Application [C.M.A. No,2947 of 2012], it has been prayed that the Defendant be granted un- conditional Leave-to-Defend for defending the above suit, as Defendant, in his opinion, has raised substantial questions of law and facts which require evidence. 23.In response to Leave-to-Defend Application [C.M.A. No,2947 of 2012], Plaintiff Bank, has filed its'
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REPLICATION' under section 10(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001, wherein, each and every assertion/allegation contrary to the stand of Plaintiff Bank has been denied. Per 'REPLICATION', Defendant has admitted 'Temporary Overdraft Facility', as narrated in Paras 19 to 29 of the plaint. The Defendant at present, as per Plaintiffs contention, is liable to pay Rs,1,250,000/- on account of ToF. According to the Plaintiffs version, even beyond January, 2007, Defendant continued to avail finance facilities but in return Defendant failed and/or avoided to fulfill its' contractual…
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