IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
1. M/S. RIAZ Plastic Industries
Through its Proprietor Appellant No.2,
MC-926,
Green Town,
Karachi
2. RIAZ Ahmed
S/o. Siddique Ahmed,
Muslim, adult, R/o. House No. MC-926,
Green Town, Shah Faisal Colony,
Karachi. …………………………… APPELLANTS
VERSUS
NIB Bank Limited,
Head Office at Muhammadi House,
I.I. Chundrigar,
Karachi. …………………………… RESPONDENT
APPEAL UNDER SECTION 22 OF THE FINANCIAL INSTITUTIONS RECOVERY OF FINANCE ORDIANANCE 2001
Being aggrieved and dissatisfied with the judgment dated 30-09-2011 passed by the Learned the Presiding Officer Banking Court No. V at Karachi, in Suit No. 178/2009, hence this appeal on consideration of the facts & grounds mentioned herein under:-
Certified Copy of Judgment dated 30-09-2011 and Decree dated 11-11-2011 is enclosed herewith & marked as Annexure “A/1 & A/2” respectively.
BRIEF FACTS
1. That the Respondent is a bank company duly incorporated under the companies Ordinance 1984 and falls under the provisions of the financial Institution (Recovery of Finance) Ordinance 2001.
2. That the Appellant No.2 is a Proprietor of the Appellant No.1 whereas under Para 2 establishment of Banker Customer relationship details or mentioned of basic documents of relationship i.e. Account Opening Form is lacking and under Section 2 (c) “Customer” meaning of Ordinance 2001.
3. That appellant had never been allowed disbursement of Rs.40, 000, 00/= the statement of account annexed with the respondent is self-explanatory.
4. That as to Para 4 of the plaint concerning other financial and security documents execution not denied for the serial Nos. I, ii, iv & v whereas at serial iii Letter of Hypothecation dated 07-03-2007 mention of PKRs.45, 32274/= marked as annexure “D” which is incorrect, the same is being of PKR.54000000/=, the difference of PKR.867726/=, this is one example of glaring blunder and mistakes on part of the Respondent Bank with ulterior motive and malafide intention.
In addition, all the documents execution from serial No. (i) to (v) is being witnessed only Sign, Name, Address and CNIC are blank.
5. That in order to secure the facility, the appellants has executed a Mortgage Deed dated 7/3/2007.
6. That but Annexure attached herewith marked as F/1 Memorandum of Deposit of Title Deeds, and F/3 General Power Of attorney both the documents are lacking in proper witnesses i.e. signed on behalf of Respondent’s Bank without names, addresses and CNIC. Also true copy of CNIC is not annexed with the documents for the sake of perfection and legal.
7. That as to Para 6 of the plaint contents are denied in it’s entirely, being exaggerated and manipulated. Renewal of Banking Facilities for PKR. 869,000/= has been mentioned in Para 3 of plaint that initial credit facility of PKR. 40,00,000/= was renewed.
The fact was that respondent unilaterally forcefully reduced the credit facility from PKR.40,00000/= to PKR.28,60,000/=. The difference of first facility and 2nd facility comes to Rs.11,40,000/=. The short fall of Rs.11,40,000/= is evident, which negative impact and affected business needs such as production and resultantly impact was drastic unbearable. The Respondent instead of supporting the Appellant pushed to point of No Return., and opted” Lenders to Last Resort” without serving any legal notice as required under the Law, WHERAS the Appellant as per Respondent certificate dated 23-04-2008 and 31-03-2009 was reported as “account conduct satisfactory” i.e. since 21-02-2007, means performer.
In addition, Annexure ‘G’ Banking Facilities letter dated 18-12-2007 for renewal of another term, with ulterior motive, malafide intention and concealment of facts on record. Also annexure signs on behalf of Respondent, witness are lacking name of personal, address and CNIC. The true copy of CNIC is also not annexed.
Copy of Respondent Bank Certificate dated 23-04-2008 and 31-03-2009 were enclosed and marked as Annexure WS-14 & WS-15.
8. That Para 9 being un-lawful, ambiguous as self guarantee i.e. personal guarantee, annexed to have been executed are not in accordance with legal norms and therefore denied.
9. That the respondent unilaterally forcefully reduced the credit facility from PKR.40, 00,000/= to PKR.28,60,000/=. The difference of first facility and 2nd facility comes to Rs.11, 40,000/=. The short fall of Rs.11,40,000/= is evident, which negative impact and affected business needs such as production and resultantly impact was drastic unbearable.
10. That turnover in terms of appellant’s business activities had touched PKR. 6225 M i.e. Debit transactions and number of transactions comes to around 400 covering period 21-02-2007 to 12-10-2009. The credit transaction comes to PKR.3.225M and number of transactions of around 170. The above turnover of Appellant activities had not been prudently analyzed by the Respondent Bank and inspite of increasing Credit Facility. The Appellant credit line was drastically cut down forcefully. The result impact low business turnover and lesser income and high expenditures.
11. That the Para 10 as said was denied.
12. That the Para 12 denied being exaggerated, charged mark up on mark up, not proper disclosed as required under law. The Respondent miserably failed to meet its “Obligations” under Section 2(e).
13. That as to Para 13 & 14 were denied, for the reason the Respondent Bank not come to Hon’ble Court with clean hands and deliberately with the malafide intention had not accommodated even State Bank of Pakistan vide BSD Circular No. 10 of 2009 dated 20-10-2009 under captioned “AMENMENTS IN PRUDENTIAL REGULATIONS PROVISIONING FOR LOANS AND ADVANCES”, conveyed decision as “THE REGULATOR” to all Banks and DFIs.
The Respondent Bank deprivation from above relief duly considered, decided and supported by the SBP was with ulterior motive and malafide intention.
The Copy of BSD Circular No.10 of 2009 dated 20-10-2009 was enclosed and marked as Annex: W-8.
Photo copies of:
Suit No. 178/09 and
Leave to Defend Application
are annexed hereto and marked “A/3 & A/4” respectively.
GROUNDS
1.) That the impugned judgment of the learned Trial Court is the result of patent illegality.
2.) That the impugned judgment and Decree is against the facts of the case and the law applicable hereto. The appellant is ready to pay Principal amount Rs.28,60,000/= in instalments i.e. Rs.30,000/= to Rs.50,000/= p.m or this Hon’ble Court directs, deems fit and proper, because the respondent unilaterally forcefully reduced the credit facility from PKR.40, 00,000/= to PKR.28,60,000/=. The difference of first facility and 2nd facility comes to Rs.11, 40,000/=. The short fall of Rs.11,40,000/= is evident, which negative impact and affected business needs such as production and resultantly impact was drastic unbearable.
3.) That the impugned judgment and Decree is bad in law and on facts. The same is completely without jurisdiction, illegal, unlawful, unconstitutional, void ab initio and of no legal effect.
4.) That the Learned Banking Court passed the impugned judgment and Decree without keeping into mind the statements of accounts were neither properly attested nor prepared as per Banker’s Book of Evidence Act, hence the same having no legal value in eyes of law.
5.) That the Learned Banking Court has failed to understand that the suit has been filed by the unauthorized person namely Mr. Shareef who is alleged attorney of the plaintiff bank whom power of attorney was not placed on record, not supported by any Board Resolution to file the suit as required under law, Financial Institutions (Recovery of Finance) Ordinance 2001, SBP Prudential Regulation and Practice and Law of Banking in Pakistan, inspite of the appellant in his leave to defend application, hence the suit was not maintainable under Section 9 of the Financial Institutions (Recovery of Finance) Ordinance 2001 and was liable to be dismissed on this score alone.
6.) That the Learned Banking Court erred/has totally failed to look into the proper provision of law and observation.
7.) That the respondent has failed to file correct statement of account in violation of Section 9 (3) of the Financial Institutions (Recovery of Finance) Ordinance 2001 and Bankers Book of Evidence Act.
8.) That upon bare perusal of the plaint and the documents appended therewith it is clear and obvious that the claim of respondent Bank is discrepant and deficient in material details. The Hon’ble Court in chambers has not considered the said discrepancies/inadequacies in the claim. It is well settled law that the court is under an obligation to examine and verify the claim of the claimant irrespective of the weakness and strength of the defence raised by the opposite person. In view of the above, the decree dated 11-11-11 is illegal and unlawful.
9.) That the Hon’ble Court while passing the impugned Decree dated 11.11.11 failed to appreciate/consider apparent discrepancies in the pleading and the alleged documents appended therewith. In the circumstances, the claim of the Respondent Bank could not be decreed except upon grant of unconditional leave to defend the suit and recording of evidence.
10.) That with prejudice to the above, it is submitted that the Appellants is even otherwise entitled to a fair trial with respect to the determination of its civil rights and obligations in terms of Article 10-A of the Constitution of Islamic republic of Pakistan 1973, which has been incorporated by virtue of Eighteenth Amendment in the Constitution.
11.) That the order passed the learned Trial Court is quite illegal, arbitrary & against the principal of natural justice, law and equity.
12.) That the learned Lower/Banking Court has committed serious error in law holding the plaint is liable to be dismissed.
13.) That the learned Trial Court has wrongly exercised the observations in rejecting the plaint without considering the correct provisions of Financial Institutions (Recovery of Finance) Ordinance 2001.
14.) That the impugned Judgment and Decree is to be set aside.
15.) That the appeal is within time and no appeal has been preferred against the impugned order except the present one.
16.) That the Appellants crave permission to raise/urge any other ground at the time of hearing.
Karachi.
Dated: /12/2011.
APPELLANT
ADVOCATE FOR THE APPELLANTS
PRAYER
In view of the above stated facts and grounds, it is respectfully prayed that this Hon’ble Court may graciously be pleased to:
a) Call (R & P) record and proceedings of Suit No.178/09 from Banking Court No. V at Karachi;
b) Set aside the impugned Judgment dated 30.09.2011 and Decree dated 11.11.2011 passed by Banking Court No. V at Karachi; Or
c) Remand the said suit to hear leave to defend application according to law and consider each and every legal and factual points raised by the Appellants thereon and also decide the matter in accordance with law.
d) Grant unconditional Leave to Defend.
e) Costs of the Appeal.
Karachi.
Dated: 15 /12/2011.
APPELLANT
Advocate for the Appellant
VERIFICATION
I, RIAZ Ahmed S/o. Siddique Ahmed, Muslim, adult, R/o. House No. 926, Green Town, Karachi, do hereby solemnly affirm and verify on oath that the contents of all the above paras including prayer clauses are true and correct to the best of my knowledge and belief.
Karachi.
Dated: 15/12/2011.
Deponent/Appellant
CNIC #. 42201-9900337-3
Mob.#. 0313-2986023
The deponent identified by me
(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2011, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS
DOCUMENTS FILED : ANNEXURES “A/1 to A/4”.
DOCUMENTS RELIED UPON : ALL RELEVANT DOCUMENTS
ADDRESS OF DEFENDANTT : AS PER TITLE OF THE SUIT.
FOR SERVICE.
ADDRESS OF THE COUNSEL : AS PER VAKALATNAMA.
FOR DEFENDANT
FOR IMMIDIATE USE ONLY IN COURT
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANT
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
AFFIDAVIT IN SUPPORT OF APPEAL
I, RIAZ Ahmed S/o. Siddique Ahmed, Muslim, adult, R/o. House No. 926, Green Town, Karachi, do hereby state on oath as under:
1. That I am Appellant in above titled Appeal and deponent of this affidavit, as such am fully conversant with the facts of the matter deposed herein:
2. That the accompanying Appeal under Section 22 of Financial Institutions (Recovery of Finance) Ordinance 2001 has been drafted and filed under my express instructions and contents whereof are true and correct and the same alongwith contents of the memo of plaint may please be treated as part of this affidavit for the sake of brevity.
3. That I say that I have a good prima facie case, and balance of convenience lies in my favour and until and unless accompanying application is granted as prayed I will be seriously prejudiced and shall suffer irreparable loss.
4. That I say that whatever stated above is true and correct to the best of my knowledge and belief.
Karachi.
Dated: 15/12/2011.
Deponent/Appellant
CNIC #. 42201-9900337-3
Mob.#. 0313-2986023
The deponent identified by me
(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2011, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANTS
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
APPLICATION UNDER SECTION 149
READ WITH SECTION 151 CPC
On behalf of the appellant, it is respectfully submitted that due to the circumstances beyond the control of the Appellant was not able to pay/file Court fee with the Appeal at the time of filling the appeal, therefore, this Hon’ble Court may be pleased to condone the time period of filling the court fee at such time.
Prayed accordingly in interest of justice.
Karachi.
Dated: 15 /12/2011.
ADVOCVATE for the APPELLANTS
FOR IMMIDIATE USE ONLY IN COURT
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANT
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
AFFIDAVIT IN SUPPORT OF APPLICATION UNDER SECTION 149 READ WITH SECTION 151 CPC
I, RIAZ Ahmed S/o. Siddique Ahmed, Muslim, adult, R/o. House No. 926, Green Town, Karachi, do hereby state on oath as under:
1. That I am Appellant in above titled Appeal and deponent of this affidavit, as such am fully conversant with the facts of the matter deposed herein:
2. That the accompanying APPLICATION UNDER SECTION 149 READ WITH SECTION 151 CPC has been drafted and filed under my express instructions and contents whereof are true and correct and the same alongwith contents of the memo of plaint may please be treated as part of this affidavit for the sake of brevity.
3. That I say that I have a good prima facie case, and balance of convenience lies in my favour and until and unless accompanying application is granted as prayed I will be seriously prejudiced and shall suffer irreparable loss, and I say that whatever stated above is true and correct to the best of my knowledge and belief.
Karachi.
Dated: 15/12/2011.
Deponent/Appellant
CNIC #. 42201-9900337-3
Mob.#. 0313-2986023
The deponent identified by me
(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2011, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANTS
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
APPLICATION TO EXEMPT FILLING ORIGINAL DOCUMENTS UNDER SECTION 151 CPC
On behalf of the appellant, it is respectfully submitted that this Hon’ble Court may be pleased to exempt the Appellant from filling original documents/certified copies of annexure “ A/1” to“ A/4” with the Appeal due to paucity of time.
Prayed accordingly in interest of justice.
Karachi.
Dated:15 /12/2011.
ADVOCVATE for the APPELLANTS
FOR IMMIDIATE USE ONLY IN COURT
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANTS
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
AFFIDAVIT IN SUPPORT OF APPLICATION
UNDER SECTION 151 CPC
I, RIAZ Ahmed S/o. Siddique Ahmed, Muslim, adult, R/o. House No. 926, Green Town, Karachi, do hereby state on oath as under:
1. That I am Appellant in above titled Appeal and deponent of this affidavit, as such am fully conversant with the facts of the matter deposed herein:
2. That the accompanying APPLICATION UNDER SECTION 151 CPC has been drafted and filed under my express instructions and contents whereof are true and correct and the same alongwith contents of the memo of plaint may please be treated as part of this affidavit for the sake of brevity.
3. That I say that I have a good prima facie case, and balance of convenience lies in my favour and until and unless accompanying application is granted as prayed I will be seriously prejudiced and shall suffer irreparable loss.
4. That I say that whatever stated above is true and correct to the best of my knowledge and belief.
Karachi.
Dated: 15/12/2011.
Deponent/Appellant
CNIC #. 42201-9900337-3
Mob.#. 0313-2986023
The deponent identified by me
(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2011, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANTS
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
APPLICATION FOR SUSPENSION OF JUDGMENT
& DECREE UNDER ORDER 39, RULE 1& 2
READ WITH SECTION 151 CPC
For the facts and reasons disclosed in accompanying affidavit, memo of Appeal, it is respectfully prayed on behalf of the Appellant abovenamed that this Hon’ble Court may graciously be pleased to suspend the Judgment dated 30.09.2011 and Decree dated 11.11.2011 passed by the learned Judge Banking Court No. V, Karachi in Suit No. 178/09 and also stay the Execution Proceedings of the above Judgment and Decree till disposal of this Appeal. law till final disposal of the suit.
Ad-interim injunction is solicited.
Prayed accordingly in interest of justice.
Karachi.
Dated: 15/12/2011.
Advocate for the Appellants
FOR IMMIDIATE USE ONLY IN COURT
IN THE HIGH COURT OF SINDH AT KARACHI
(Appellant Banking Jurisdiction)
H.C.A. No. /11
M/S. RIAZ Plastic Industries ……………… APPELLANTS
VERSUS
NIB Bank Limited ………………………………… RESPONDENT
AFFIDAVIT IN SUPPORT OF APPLICATION
UNDER ORDER 39, RULE 1& 2 READ WITH SECTION 151 CPC
I, RIAZ Ahmed S/o. Siddique Ahmed, Muslim, adult, R/o. House No. 926, Green Town, Karachi, do hereby state on oath as under:
1. That I am Appellant in above titled suit and deponent of this affidavit, as such am fully conversant with the facts of the matter deposed herein:
2. That the accompanying application U/O. 39, Rule 1 & 2, R/W. 151 CPC has been drafted and filed under my express instructions and contents whereof are true and correct and the same alongwith contents of the memo of plaint may please be treated as part of this affidavit for the sake of brevity.
3. That I say that I have a good prima facie case, and balance of convenience lies in my favour and until and unless accompanying application is granted as prayed I will be seriously prejudiced and shall suffer irreparable loss.
4. That I say that whatever stated above is true and correct to the best of my knowledge and belief.
Karachi.
Dated: 15/12/2011. Deponent/Appellant
CNIC #. 42201-9900337-3
Mob.#. 0313-2986023
The deponent identified by me
(ADVOCATE)
Solemnly affirmed on oath before me at Karachi on this __ th day of _______ 2011, by the deponent abovenamed who is identified by Mr. S M ZUBAIR, Advocate whom I know personally.
COMMISSIONER FOR TAKING AFFIDAVITS
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