M/s Faysal bank Ltd VS Tahir Rasheed & Co. etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

R.F.A.No.104 of 2010 M/s Faysal Bank Ltd.

Versus Tahir Rasheed & Co. and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 17.10.2022 Mr. Rahil Sikandar Khawaja, Advocate for the appellant, Mr. Tahir Rasheed, Chief Executive of respondent No.1.

Through the instant regular first appeal, the appellant, M/s Faysal Bank Ltd., impugns the judgment and decree dated 12.05.2010 passed by the learned Judge Banking Court, Rawalpindi whereby the suit for declaration, rendition of accounts, permanent and mandatory injunction instituted by respondent No.1, Tahir Rasheed & Co., was decreed to the extent of recovery of Rs.6,00,000/- in respondent No.1’s favour along with costs of the suit and costs of funds under the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

2.The facts essential for the disposal of the instant appeal are that a vehicle lease agreement dated 23.06.2006 was executed between the appellant and respondent No.1 under which the vehicle premium cost of Rs.4,99,000/- was provided to respondent No.1. On 14.12.2009, the appellant issued a no objection certificate to the Excise and Taxation Officer, Islamabad for the transfer of vehicle (Suzuki Alto VXR CNG 2006 having registration No.KK-612) in favour of respondent No.1.

3.The loan lease agreement was terminated by the appellant on the ground that an amount of Rs.1,53,661/- had not been paid by respondent No.1 as balance payment (Rs.1,44,535.68),

termination charges (Rs.7,226.78), and markup (Rs.1,900.74). The appellant had also claimed late payment charges amounting to Rs.2,00,500/-. The vehicle that had been purchased under the vehicle lease agreement was taken into possession by the appellant in August 2009. By this time, respondent No.1 had repaid a total amount of Rs.7,17,980/-. This amount comprised of security deposit / down payment (Rs.1,49,700/-), total rental paid by respondent No.1 to the appellant (Rs.3,28,280/-), and deposit (Rs.2,40,000/-). Since respondent No.1 had repaid a substantial amount from the amount received under the vehicle lease agreement and it had also been deprived of possession of the vehicle, a suit for declaration, rendition of accounts, permanent and mandatory injunction was instituted by respondent No.1 against the appellant before the learned Judge Banking Court, Rawalpindi. On 01.12.2009, the appellant filed an application for leave to appear and defend the suit. This application was contested by respondent No.1 by filing a written reply. Vide order dated 06.04.2010, leave was granted to defend the suit with the consent of respondent No.1.

4.During the pendency of the said suit, a compromise was arrived at between the appellant and respondent No.1. A copy whereof is annexed at page 42 of the paper book. Through the said compromise, it was agreed that if respondent No.1 pays an amount of Rs.2,04,363/- to the appellant by 11.12.2009, the vehicle in question would be restored to respondent No.1. After the said compromise, it is not disputed that respondent No.1 deposited Rs.2,04,363/- with the appellant on 11.12.2009 and the deposit receipt is annexed at page 43 of the paper book.

5.After the execution of the said compromise, the appellant was not able to return the vehicle to respondent No.1. The appellant’s stance was that the vehicle had been parked at Police Station Cantt for safe keeping. The learned Trial Court vide order dated 23.12.2009 recorded the statement of the appellant’s Legal Coordinator to the effect that respondent No.1 had repaid all amount due against it and therefore the vehicle in question be returned to it. Three dates of hearing passed by and the appellant was unable to return the vehicle to respondent No.1.

6.On 15.01.2010, the learned Trial Court was informed by the appellant that an FIR had been registered against the previous administration of the appellant, and that the vehicle in question could not be traced. The appellant took the position that the vehicle had been handed over to Muhammad Aslam ASI but it had not been explained in what capacity possession of the vehicle had been handed over. The learned Trial Court directed that the said vehicle be produced before the Court on 18.01.2010. On 18.01.2010, the Relationship Manager of the appellant tendered appearance before the learned Trial Court along with Muhammad Aslam ASI from Police Station Cantt. The latter took the position that the vehicle had not been handed over to him but had been taken back by the bank. To cut the long story short, it was not disputed that in August 2009, possession of the vehicle had been taken away by the appellant from respondent No.1 and after the execution of the compromise, possession of the same had not been restored to respondent No.1. In these circumstances, the learned Trial Court carried out evaluation of the vehicle and consequently the suit was decreed by ordering the

value of the vehicle i.e., Rs.6,00,000/- to be paid to respondent No.1 along with costs of suit and costs of funds.

7.Even today the appellant could not take a clear position whether the vehicle in question could be returned to respondent No.1. The execution of the compromise between the parties is admitted and so is the payment of Rs.2,04,363/- paid by respondent No.1 to the appellant in terms of the compromise. However, the appellant’s position is that the value of the vehicle should have been fixed at Rs.4,00,000/- whereas respondent No.1 had produced before the learned Trial Court quotations showing the value of the vehicle to be Rs.6,10,000/-. The final statement of accounts produced by the appellant showed that respondent No.1 had repaid Rs.7,17,980/-.

8.After the execution of the compromise and payment of Rs.2,04,363/-, in terms of the said compromise, respondent No.1 had applied to the learned Trial Court for passing appropriate orders. Respondent No.1’s prayer was that either possession of the vehicle to be handed over or to return its value. Neither has the learned counsel pointed out any illegality in the impugned judgment and decree nor have we been able to see any arbitrariness in the decision of the learned Trial Court in ordering Rs.6,00,000/- to be paid to respondent No.1 along with costs of suit and costs of funds.

9.Had the appellant kept the vehicle in question in safe custody, it would have been possible to return the same in good order to respondent No.1 after the execution of the compromise and payment of Rs.2,04,363/- in terms of the compromise. It is the appellant’s failure to return the vehicle to respondent No.1 that

subjected the latter to the rigors of litigation for more than 10 years. Therefore, the instant appeal is dismissed with costs throughout.

(ARBAB MUHAMMAD TAHIR) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*