Muhammad Ishtiaq vs Z.T.B.L

PLJ 2014 Lahore 1189 (DB) [Multan Bench Multan] Present: Amin-ud-Din Khan and Abid Aziz Sheikh, JJ.

MUHAMMAD ISHTIAQ--Appellant versus Z.T.B.L.--Respondent R.F.A. No. 63 of 2010, heard on 25.9.2013.

Financial Institutions (Recovery of Finances) Ordinance, 2001-- ----S. 22--Suit for recovery alongwith mark up and cost of funds recoverable through sale of mortgaged property--Denial of availing of loan and allegation of fraud without any prima facie proof was not sustainable--Validity--Mere denial of loan and other documents without any prima facie proof does not constitute a substantial question of law and fact entitled appellant for grant of leave--Appellant has raised serious allegations of fraud against his elder brother, but as per record, he has taken no action against him--Appellant has not challenged veracity of documents and revenue record before any competent Court of law--No substantial question of law and fact is made out, appellant was also unable to point out any illegality in impugned judgment and decree passed by Court--Appeal has no merits and same is, hereby dismissed. [P. 1191] A, B

&C

Mr. Muhammad Suleman Bhatti, Advocate for Appellant.

Ch. Saleem Akhtar Warriach, Advocate for Respondent.

Date of hearing: 25.9.2013.

JUDGMENT

ABID AZIZ SHEIKH, J.--This appeal has been filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the judgment and decree dated 19.01.2010, as well as, the order dated 28.04.2009 passed by the learned Judge, Banking Court No. II, Multan whereby the learned Court dismissed the petition for leave to defend, decreed the suit filed by the respondent bank to the tune of Rs.623888/- with costs and cost of funds from the period of date of expiry up till realization of entire decretal amount.

2.Brief facts of this case are that respondent bank filed a suit for recovery of Rs.6,40,794/- along with markup and cost of funds recoverable through sale of mortgaged property or other movable or immovable properties of the appellant. The appellant filed an application for leave to defend the suit which was dismissed by the learned Banking Court vide order dated 28.04.2009 on the ground that the appellant failed to raise any substantial question of law and fact and consequently, the suit was decreed on 19.1.2010 against the appellant; hence this appeal.

3.The learned counsel for the appellant argued that the appellant never submitted any application to the respondent bank for availing of loan and also did not receive any loan amount. He argued that in fact his elder brother Muhammad Akram, had taken the charge of the entire holdings to the father of the appellant and he, in connivance with the bank official obtained loan from the bank; hence no liability can be shifted upon the appellant. He further submits that even the mutation of mortgage on the basis of Zarai Pass Book, is the result of fraud committed by his

elder brother Muhammad Akram, who was in possession of the property and executed the mortgage deed in connivance with the bank staff and revenue officials.

4.Conversely, the learned counsel for the respondent bank argued that the appellant himself availed the loan facility and executed all loan documents and also mortgaged his agricultural land in bank's favour, therefore, bare denial of availing of loan and allegation of fraud without any prima facie proof, is not sustainable. Reliance is placed on Mst. Zamurd Begum vs. I.D.B.P and others (2002 CLD 386). He further submits that the Banking Court itself perused the entire original record at the time of deciding leave application and dismissed the same on cogent ground; hence the instant appeal is liable to be dismissed.

5.Arguments heard Record perused.

6.We have gone through the impugned order dated 28.04.2009 passed by the learned Banking Court wherein the original record was requisitioned by the learned Judge Banking Court and after perusing the same, the learned Court was satisfied that the application for grant of loan bears the signatures, thumb impressions and CNIC number of the appellant/loanee. The learned Judge, Banking Court, further perused the loan agreement which also contained the signatures, and thumb impressions of the appellant. The learned Court was also satisfied with the facts that the appellant got his accused mortgaged and prepared his pass book which also bears his signatures and thumb impressions. Even the supply order on the basis of which he obtained tractor etc. and the receipt of disbursement bears his signatures and thumb impressions. We are of the opinion that in presence of the aforesaid documents, original of which were already perused by the learned Banking Court mere denial of loan and other documents without any prima facie proof does not constitute a substantial question of law and fact entitled the appellant for the grant of leave. In this regard, reliance is placed on Ghazala Asif vs. Union Bank Ltd. (now Emirates Bank International, Lahore) (2000 CLC 1201), Habib Bank Limited vs. Orient Rice Mills Ltd. And others (2004 CLD 1289) and Mst. Zamrud Begum's case (supra). We have also noted that though appellant has raised serious allegations of fraud against his elder brother, namely, Muhammad Akram, but as per record, he has taken no action against him. Further, the appellant has not challenged the veracity of aforesaid documents and the revenue record before any competent Court of law.

7.In view of above discussion, no substantial question of law and fact is made out, the learned counsel for the appellant is also unable to point out any illegality in the impugned judgment and decree passed by the learned Judge Banking Court. Therefore, instant appeal has no merits and the same is, hereby dismissed with no order as to costs.

(R.A.) Appeal dismissed