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Petitioner: KASB BANK LIMITED VS Respondent: MUHAMMAD SALEEM SHAIKH
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: KASB BANK LIMITED vs MUHAMMAD SALEEM SHAIKH Case No.: Suit No, B-158 of 2009 Date of Judgment:2015-06-09 Reported As: 2016 CLD 1744 Result: Suit stands decreed
JUDGMENT
JUDGMENT 'AZIZ-UR-REHMAN, J.---The present suit has been filed by Plaintiff Bank through its duly authorized and principal officers under section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001] for Recovery of Rs,58,282,490.85, inter alia, for Sale of the Pledged and Hypothecated Goods/Assets, Cost of Funds and Cost of the Suit with the following prayers:- a] a decree be passed in favour of the Plaintiff Bank and against the Defendant for payment of Rs, 58,282,490.85 [Rupees Fifty Eight Million Two Hundred Eighty Two Thousand Four Hundred Ninety and Paisas Eighty Five only] b] the Hypothecated Assets and Pledged Goods being inventory/stocks of rice located at Khawaja Godown situated at Plot No,10/1, Scheme No,28, Hawksbay Road, Karachi [factory premises] be ordered to be sold c] the decretal amount be ordered to be realized through execution of personal decrees against the Defendant d] the following two immovable properties of Defendant, may be attached under section 16 of the Ordinance and under Order XXXVIII, Rule 5 of the C.P.C. And sold out and proceeds be applied towards the satisfaction of decretal amount; i."All that piece and parcel of 1.67 Acre equivalent to 8082.8 sq. Yards, from Industrial Open Plot bearing Naclass No,162, out of admeasuring 5 Acres, or thereabout i.e, 24200 Keamari Town, District Karachi West, lying within the territorial jurisdiction of Mauripur Police Station." ii."All that 1/8th undivided share in piece and parcel of land bearing Sub Plot No,FL-4/A-1 of Plot No, FL-4, upon which a Flat Premises No,19 Located on Fourth Floor, measuring 268 square yards or
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thereabout, in the project known as "Hanging Gardens", situated in Block No,5, KDA Scheme No,5, Kehkashan, Clifton, Karachi." e] cost of funds as determined by State Bank of Pakistan and as envisaged under sections 3 and 17 of the Ordinance from the date of default i.e, 30.09.2009 till satisfaction of decreed amount be granted; f] cost of the suit also be awarded; g] any other better/consequential relief may kindly be granted. 2. The relevant facts in the background are as under:- 3. The Plaintiff is a Banking company duly licensed by the State Bank of Pakistan [In short SBP] to carry on Banking business in Pakistan, is a 'financial institution' as defined in section 2[a] of the Financial Institutions [Recovery of Finances] Ordinance, 2001, having its' Head Office and place of business at Business and Finance Centre, LI. Chundrigar Road, Karachi, while, Defendant is a 'sole proprietor' of Millat Rice Corporation and is doing business of 'export of rice', having availed from time to time, certain finance facilities from the Plaintiff Bank as such falls within the meaning of Customer in terms of section 2[c] of F.I.O., 2001. 4. The Plaintiff Bank, in order to have a cordial relationship with the Defendant besides, extending its' co-operation, always accepted Defendant's requests for granting to and availing of financial facilities by the Defendant during the entire period of transaction. 5. The Plaintiff Bank, indeed, after evaluating the collaterals offered as security by the Defendant through its' FACILITY OFFER LETTER' dated 07.11.2007, [Annexure 'P/2 to the Plaint], sanctioned various finance facilities in favour of the Defendant obviously in order to meet the Defendant's requirements of 'working capital', 'pre-shipment' and 'post shipment', as requested by the Defendant. The details of the finance facilities sanctioned by the Plaintiff Bank in favour of Defendant are as under:- [a] Cash Finance Facility Rs,50,000,000/- [Rupees Fifty Million only] [b] Finance Against Packing Credit [Sub-limit of Cash Finance Facility] Rs,35,000,000/- [Rupees Thirty Five Million only] [c] Running Finance Facility Rs,15,000,000/- [Rupees Fifteen Million only] [d] Finance Against Foreign Bills Rs,20,000,000/- [Rupees Twenty Million only] [e] Foreign Bills Purchase [Discounting][Sub-limit of FAFB] Rs,20,000,000/- [Rupees Twenty Million only]. 6. In pursuance of the aforesaid 'Facility Offer Letter', on 08.11.2007, the Plaintiff Bank through its' Main Branch Karachi, and the Defendant entered into an AGREEMENT FOR FINANCE ON MARK-UP BASIS dated 8th November, 2007 [Annexure P/4 Page 79]. The Plaintiff Bank under the aforesaid Finance Agreement agreed to disburse Is.65,000,000/- to the Defendant, called as 'Sale Price'. The Defendant, on the other hand under the afore-said 'Finance Agreement' of 8th November, 2007, was agreed to pay Rs,74,750,000/- as 'Purchase Price' to the Plaintiff Bank on or before 31.10.2008. The Finance Agreement of 8th November, 2007, needless to say, is coupled with a 'Promissory Note' dated 08.11.2007 [Annexure P/5 - Pg 83] whereby, the 'Purchase Price', in the sum of Rs,74,750,000/- was promised to be paid by the Defendant on demand. 7. Apart from the above Finance Agreement, another FINANCE AGREEMENT dated 08.11.2007 [Annexure P/7 to the Plaint], was also signed and executed by the Defendant. Per this agreement, the 'Sale Price' and 'Purchase Price' mutually agreed between the parties is Rs,55,000,000/- and Rs,59,950,000/- respectively. This agreement is also coupled with a Promissory Note [Annexure P/8 - Pg 91] in the sum of Rs,59,950,000/-. [Fifty Nine Million, Nine Hundred Fifty Thousand only]. 8. In order to secure, the said finance facility[ies] granted to and availed by the Defendant and as required under the FACILITY OFFER LETTER No KHI/MAIN/M M/117/07 of November 7, 2007, the Defendant besides, creating hypothecation on 'RICE STOCKS' and executing Letter of Guarantee
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also created Pledge upon its' STOCK OF RICE' in favour of the Plaintiff Bank and in such connection executed letters of Pledge and hypothecation . The description of 'Pledge Stocks' is as under:- "Pledge of inventory/stocks of rice located at Khawaja Godown situated at Plot No,10/1, scheme No,28, Hawksbay Road, Karachi [factory premises]. " 9. The Financial Facility[ies] so granted were fully availed and , utilized by the Defendant but the Defendant failed and/or avoided to adjust the same on or before 31.10.2008. Resultantly, a request for 11 'RENEWAL AND ENHANCEMENT' of the said finance facilities, was made by Defendant. The Plaintiff Bank, nonetheless, in order to IL facilitate and accommodate the Defendant, accepted the Defendant's request and 'SANCTIONED/ENHANCED/RENEWED', the finance! Facilities through its' BANKING FACILITY OFFER LETTER' dated; 06.12.2008 [Annexure P/I4 to the Plaint], so that the Defendant becomes enable to meet its' [a] working capital requirement, [b] pre-shipment requirement and [c] post shipment requirement. On 18.12.2008, the Defendant returned the 'BANKING FACILITY OFFER LETTER' dated 06.12.2008, after duly signing and accepting the same. The details of the approved facilities are as under:- [i] Cash Finance Facility Rs,50,000,000/- [Rupees Fifty Million only. [ii] Finance Against Packing Credit Part In short FAPC-I and II [Sub-limit of Cash Finance Facility] Rs,50,000,000/- [Rupees Fifty Million only] [iii] Finance Against Foreign Bill [SBP] Rs,20,000,000/- [Rupees Twenty Million only] [iv] Finance Against Foreign Bills [Own] Rs,20,000,000/- [Rupees Twenty Million only] [Sub-limit of FAFB-SBP] [v] Foreign Bills Purchase [Discrepant Sub-limit of FAFB-SBP] Rs,20,000,000/- [Rupees Twenty Million only] [vi] Running Finance Facility Rs,15,000,000/- [Rupees Fifteen Million only] 10. In pursuance of the aforesaid 'BANKING FACILITY OFFER LETTER' of December 6, 2008, the Plaintiff Bank through its' Main Branch, Karachi and the Defendant, voluntarily entered into an AGREEMENT FOR FINANCE ON MARK-UP BASIS dated 18th December, 2008 [Annexure P/15 to the Plaint]. Under this Finance Agreement, the mutually agreed 'SALE PRICE' was fixed at Rs,50,000,000/- and the Defendant in turn promised and made himself liable to pay Rs,60,000,000/- as 'PURCHASE PRICE' on or before 31.10.2009, to the Plaintiff Bank. This Finance Agreement is also coupled with a 'Demand Promissory Note' of 18.12.2008 [Annexure P/16 to the Plaint] in the sum of Rs,60,000,000/- i.e, the 'PURCHASE PRICE'. 11. Likewise, in pursuance of said BANKING FACILITY OFFER LETTER of December 6, 2008 [Annexure P/14 to the Plaint], the Plaintiff Bank through its' main branch, Karachi and the Defendant entered into another 'AGREEMENT FOR FINANCE' dated 18.12.2008 [Annexure P/21 to the Plaint] on mark-up basis. The 'SALE PRICE' under this FINANCE AGREEMENT agreed to be Rs,20,000,000/- and the 'Purchase Price' in the sum of Rs,24,000,000/- was agreed to be paid by the Defendant on or before 31.10.2009. This Finance Agreement is also coupled with 'DEMAND PROMISSORY NOTE' of 18.12.2008 in the sum of Rs,24,000,000/- [Annexure P/22 to the Plaint]. 12. In order to further secure the finance facilities, the Defendant besides, creating hypothecation upon its' Stocks of Rice' [finished and unfinished], created pledged upon the 'Stocks of Rice' as well and in this regard also duly signed and executed letters of 'Hypothecation' and letter of 'Pledge', both dated 18.12.2008 [Annexure P/24 and P/25 to the Plaint]. Moreover, the Defendant in his personal capacity also guaranteed the repayment of the amount by executing letter of Guarantee in the sum of Rs,102,000,000/- [Annexure P/26 to the plaint]. 13. The Defendant though fully availed the finance facilities but did not adhere to his re-payment commitments. As such, not only failed to discharge its' contractual obligations but also failed to perform its' duty imposed under F.1.0., 2001, as well as inter alia under the 'FINANCE AGREEMENTS' and 'FACILITY OFFER LETTER[S]' etc. Having been duly signed and accepted by the Defendant in favour of
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the Plaintiff Bank. In view of this position, the Plaintiff Bank, on various occasions asked the Defendant to pay/liquidate the outstanding amounts owed to the Plaintiff Bank but Defendant, in his own wisdom, did not give any heed to the requests of the Plaintiff Bank, so made. 14. Moreover, the Defendant vide letter- of 22.01.2009, [Annexure 'P/33' to the Plaint], not only admitted the factum of pledge, but also promised, the payment of over-dues in the sum of Rs,2.7 million, Not only this, also undertook to deposit the outstanding mark-up shortly. Besides, the Defendant provided two cheques [a] CD0660510 of Rs,500,000/- dated 15.8.2009 and [11] CD 0580746 of Rs,7000/- dated 29.07.2009 [Annexure 'P/36' to the Plaint] to the Plaintiff Bank with a request to adjust the markup amount therefrom. The two cheques, however, on presentation stood dis-honoured due to 'Insufficient Balance' and /or because of funds 'Not arranged for' by the Defendant. 15. The facility-wise particulars as required in terms of F.I.O., 2001 of the amounts availed and repaid/adjusted against the amounts outstanding and the amounts payable by the Defendant on account of 'principal' and 'markup' are as follows:- {{TABLE}} A. CASH FINANCE OF RS.50,000,000/- [RUPEES FIFTY MILLION ONLY:- S# DESCRIPTION AMOUNT [Rs,] A. The amount of finance availed by the Defendant being total withdrawals. 49,900,000/- The amounts paid by the Defendant to the Plaintiff Bank in respect of Principal being total deposits. Nil The amount paid by the Defendant to the Plaintiff Bank towards markup 5,093,008.33 The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 49,900,000/- The amount of markup and other charges still payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 8,045,491.20 Total amount payable by the Defendant upto the 30.09.2009 [D + El 57,945,491.20 B. FAFB-DP/DA Rs, 20,000,000/- [RUPEES TWENTY MILLION ONLY:- S# DESCRIPTION AMOUNT [Rs,] The amount of finance availed by the Defendant being total withdrawals. 2,700,000/- The amounts paid by the Defendants to the Plaintiff Bank in respect of Principal being total deposits. 2,577,579.75 The amount paid by the Defendant to the Plaintiff Bank towards markup 535,360.64 The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 122,430.25 The amount of markup and other charges still payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 214,569.40 Total amount payable by the Defendant upto the 30.09.2009 [D + E] 336,999.65 C. TOTAL OUTSTANDING AMOUNT PAYABLE BY THE DEFENDANT TO THE PLAINTIFF BANK:- S# DESCRIPTION AMOUNT [Rs,] CF: 57,945,491.20 FAFB - DP/DA 336,999.65 Total [A + B] 58,282,490.85 {{TABLE}} 16. The plaint in the present case was presented on 03.11.2009. The process as required under section 9[5] of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001], was issued to the Defendant. Upon service, the Defendant who is sole proprietor of 'Messrs Millat
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Rice Corporation, filed his Leave to Defend Application bearing C.M.A. No,11789/2009 thereby, seeking unconditional leave to defend the above suit on the grounds and as averred that the Defendant has raised substantial questions of facts and law in respect of which evidence per Defendant's version needs to be recorded. 17. In the Leave to Defend Application, it was not denied that the Defendant is a 'sole proprietor' of Millat Rice Corporation. Besides, availment of facilities and execution of various documents [annexed with plaint] were also not denied much-less specifically. On 13.05.2015, when the above case came-up before me, I heard Mr. Ali Raza Habb, learned counsel for the Defendant and Mr. Abid Naseem, learned counsel for the Plaintiff Bank and with their valuable assistance also gone through the available record. 18. Per Mr. Ali Raza Habb, the plaint has not been signed and/or verified by the competent persons of the Bank as the copy of RESOLUTION of the Board of Directors of the Bank, authorizing the person to execute the power of attorney[s] has not been annexed with the plaint though the copies of Power of Attorney[s], are available on record. In view of the this position, according to Mr. Ali Raza Habb, the suit as framed and filed is in-competent in law and as such, is liable to be dismissed with costs. 19. According to Mr. Ali Raza, the Defendant, no doubt, is a 'sole proprietor' of 'Millat Rice Corporation' and doing 'EXPORT BUSINESS OF RICE' but in fact has/had only availed two facilities i.e, 'CASH FINANCE' [In short CF] and 'FINANCE AGAINST FOREIGN BILLS' [In short FAFB], from the Plaintiff Bank. The entire outstanding amounts, however, under the availed facilities have already been paid by the Defendant. No amount as alleged, is due or otherwise, payable by the Defendant to the Plaintiff Bank. Per learned counsel, on this score as well, the suit is liable to be dismissed. 20. Mr. Ali Raza Habb, next urged that the Plaintiff Bank with a view to defraud the Defendant, obtained the signatures of the Defendant, inter alia on blank 'printed forms' of finance agreement[s] etc. The 'Sale Prices' and 'Purchase prices' inter alia referred to in the Finance Agreement[s] and Promissory Note[s] are either in-correct or otherwise, exaggregates as such are not liable to be paid by the Defendant. Moreover, the various documents annexed with the Plaint, have not only been obtained in blank but have also been filled-up by the Bank with dates and figures of its' own choice and that too without obtaining consent of the Defendant. Besides, under the agreements of Finance Facilities, no any disbursement has been made as such all the Finance Agreements beside, without consideration are void and not enforceable under the law. 21. Like-wise, per Mr. Ali Raza, the amounts mentioned in the letters of hypothecation have never been availed by Defendant. Being so, the letters of hypothecations are also without consideration. Besides, the letters of hypothecation are invalid as they do not disclose the details of the 'hypothecated ,goods' in Schedule 'A' thereto. According to Mr. Ali Raza, the letters of hypothecation, in fact, were obtained in blank. So also, the letters of pledge are too without consideration as no facilitypes1 there against was ever availed by the Defendant. The letters of pledge are also in-valid as no any amounts under the alleged facility[ies] have been granted to and/or availed by the Defendant. Besides, from the letters of pledge and/or letters of hypothecation, the details of the 'pledged goods'/'hypothecated goods' are missing which also render the letters of Pledge and Hypothecation quite doubtful. Be that as it may, per learned counsel all the letters of 'hypothecation' and 'pledge' annexed with plaint are invalid and not enforceable under the law. No hypothecation and/or pledge 'over the goods' of Defendant as claimed was ever legally created in favour of the Plaintiff Bank, Mr. Ali Raza further submitted in vehemence. 22. Not only the above, the LETTERS OF PERSONAL GUARANTEE of the sole proprietor of 'Millat Rice Corporation' are also invalid for want of consideration. The letters of guarantee [Annexure P/13 and P/26 to the Plaint] in fact, were obtained in blank and apparently have been filled-up later on and that too without consent of the Defendant. Mr. Ali Raza Habb, learned counsel for the Defendant,
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further contended that the letters of guarantee under the law are also invalid because the liability of the guarantor and the principal is one and same. The letters of guarantee thus beside without consideration are legally not enforceable under the law. 23. Mr. Ali Raza Habb, further urged that the signatures of Defendant appearing on all the 'documents annexed with plaint' have been obtained on 'blank printed forms' by the Plaintiff Bank. Moreover, the TWO AGREEMENTS OF FINANCING [Annexure P/15 and 17 of the Plaint] are in respect of the same facility of Rs,50 Million. In the aforesaid finance agreements significantly the 'Sale Prices' are same, however, the 'Purchase Prices' ['Repayable Prices'] are different. Likewise, TWO PROMISSORY NOTES [Annexure 'P/I6' and 'P/18' to the Plaint] contained different amounts. The TWO FINANCE AGREEMENTS [Annexure 'P/19' and 'P/21' to the Plaint] obtained for another facility of Rs,20 Million also contain different 'Purchase Prices' [Repayable Prices]. Likewise is the position of PROMISSORY NOTES [Annexure P/18 and P/20]. From all the above, it depicts that all these documents have been obtained in blank and have been filled later-on but without consent of the Defendant. Per Mr. Ali Raza Habb, all the aforesaid documents are legally not enforceable or otherwise, binding upon the Defendant under the facts and circumstances of the case. 24. As far as the issue of Cheques is concerned, per Mr. Ali Raza Habb, the Cheques referred to in Plaint, no doubt, were issued by the Defendant but perhaps due to mis-understanding. The cheques, as urged by Mr. Ali Raza Habb, were not intentionally issued for dishonor as alleged by the Plaintiff Bank. The 'subject cheques' were subsequently replaced by other two cheques for the same amount which as alleged, have already been encashed. The Defendant, per learned counsel, time and again requested the Plaintiff Bank for the return of dis-honoured cheques but the Plaintiff in its' own wisdom and perhaps with a mala fide intention and bad faith did not return the above- mentioned cheques. According to Mr. Ali Raza Habb, learned counsel for the Defendant, no any offence as alleged by the Plaintiff was ever committed by the Defendant muchless which may fall within the scope of section 20 of F.I.O., 2001 [Ordinance NO.XLVI of 2001]. 25. According to Mr. Ali Raza Habb, no order for attachment vis-a-vis immovable properties not being mortgaged with the Plaintiff Bank can be passed and/or otherwise, sold much-less at this stage of proceedings. True copies of 'sale deed' and 'conveyance deed', attached with the plaint [Annexure P/37 and P/38], have never been deposited by the Defendant with the Plaintiff. Per Mr. Ali Raza Habb from the perusal of the copies thereof, it appears, the same have been obtained from the 'Registration Department of Government of Sindh'. The plaintiff, nonetheless, has no vested right over and regarding these two immovable properties to attach and/or sale the same much-less at this stage of the proceedings. 26. Mr. Ali Raza, next contended that almost all the amounts due against FINANCE AGAINST FOREIGN BILLS (In short FAFBI, have already been paid/adjusted. The amounts of 'markup' and 'other charges' as claimed by the Plaintiff Bank, are absolutely 'exaggerated' and 'unjustified' thus the Defendant is not liable to pay the same. Similarly, the claim of the Plaintiff Bank regarding 'CASH FINANCING' [In short CF] facility is also false and baseless. No any amount, as claimed by the Plaintiff, is payable by the Defendant to the Plaintiff Bank. Per Mr. Ali Raza Habb, learned counsel for the Defendant, the total payable amount ['Purchase Price'], in terms of 'FINANCE AGREEMENT' [Annexure P/15 to the Plaint], is Rs,60,000,000/- and out of this amount the Defendant has already paid Rs,5,093,088.33. No excess amount of 'markup can be claimed and/or charged by the Plaintiff Bank over and above the 'Purchase Price' of Rs,60,000,000/- [Rupees Sixty Million only]. The particulars/break-up of the amounts, availed, repaid/adjusted against the 'principal' and/or 'mark-up' and the amount outstanding and payable as required in terms of section 10[4] of F.I.O., 2001 submitted by Defendant read as follows:- A. The amount of finance availed by the Defendant: a] Cash Finance Rs,49,900,000.00
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ii] The amount of finance and other amounts relating to finance payable by the Defendant to the financial institution upto the date of institution of suit. [i.e, 03.11.2009]. a] Cash Finance Rs,53,900,000.00 iii] The amounts paid by the Defendant to the financial institution as per statement of account. a] Cash Finance Rs,5,093,008.33 Value of stock of Rice in Rs,40,000,000.00 possession of Plaintiff iv] The amounts which the Defendant disputes as payable are as follows:- a] Cash Finance Rs,8,045,491.20 B. The amount of finance availed by the Defendant. A] FAFB Rs,2,700,000.00 ii] The amount of finance and other amounts relating to finance payable by the Defendant to the financial institution upto the date of institution of suit [i.e, 03.11.2009]. a] FAFB Rs,2,700,000.00 iii] The amounts paid by the Defendant to the financial institution as per statement of account. a] FAFB Rs,2,577,569.75 'Payable amount Rs, 336,999.85 27. In view of the above submissions, Mr. Ali Raza Habb, learned counsel for the Defendant vehemently submitted that the Defendant is entitled for 'LEAVE-TO-DEFEND' the above suit unconditionally, as the Defendant, according to Mr. Ali Raza, has succeeded in raising substantial questions of law and facts which, no doubt, entitles the Defendant for un-conditional grant of 'LEAVE-TO-DEFEND' the suit. Moreover, as urged by Mr. All Raza, under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, 'fair trial' and 'due process' is a fundamental right of each and every litigant, thus on this score as well, the Defendant deserves to be granted un-conditional 'LEAVE TO DEFEND' the suit. 28. In contra, Mr. Abid Naseem, learned counsel for the Plaintiff Bank forcefully submitted that the Defendant in his 'LEAVE-TODEFEND APPLICATION' bearing C.M.A. No,11789 of 2009, has not only admitted the availment of 'Cash Finance Facility' [In short CF] in the sum of Rs,49,900,000/- but also the 'FINANCE AGAINST FOREIGN BILLS' [In short FAFB], in the sum of Rs,2,700,000/-. Moreover, in the 'LEAVE-TO-DEFEND APPLICATION', the Defendant has also admitted the execution of Finance Agreement[s], Promissory Notes, Letter of Continuities, Letters of Pledge, Letters of Hypothecation, Understandings, Declarations, Forms 'A' and Letters of Guarantees etc. In favour of the Plaintiff Bank. Per Mr. Abid Naseem, learned counsel for the Plaintiff, all the documents on the record, no doubt, are duly filled documents which, of course, belie the Defendant in its' version that any document, as alleged, was obtained/procured in blank by the Plaintiff Bank from the Defendant. Prior to filing of 'LEAVE-TO-DEFEND APPLICATION', the Defendant, per Mr. Abid Naseem, has never challenged and/or otherwise, alleged that any document was obtained in blank and/or has been filled later-on. 29. According to Mr. Abid Naseem, learned counsel for the Plaintiff Bank, the assertions made and allegations leveled by the Defendant, are not only baseless but also self-conflicting and contradictory. Mr. Abid Naseem, further urged that in terms of section 9[1] of F.I.O.,…
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