Khurshid Khan vs Regional GM Operation HBL

2011 C L D 9 5 7

[Peshawar]

Before Ejaz Afzal Khan, C.J., and Mazhar Alam Khan Miankhel, J

KHURSHID KHAN---Appellant

Versus

REGIONAL GENERAL MANAGER (OPERATION), HABIB BANK LTD. and another- --Respondents

F.A.B. No. 78 with C.M. No. 340 of 2009, decided on 22nd March, 2011.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----Ss. 9 & 22---Suit for rendition of account---Lease agreement of vehicle, that actual price thereof at 20%, would be paid by the lessee and remaining amount was to be paid in 60 monthly instalments---Lessee was entitled to free comprehensive insurance free registration etc.-Plaintiff filed suit against the Bank when he came to know that bank had charged him for the said benefits---Suit was dismissed by the Banking Court---Validity---Documents of the bank itself denied the version of the bank---Bank had indirectly included the amount of insurance etc. amount of benefits in the instalment on one side and on the other side, referred the same to be the benefits of the package---Impugned judgment and decree of Banking Court were set aside by High Court in appeal, and the suit of the plaint(ff was decreed holding that the bank was not entitled to recover the disputed amount.

Isaac Ali Qazi for Appellant.

Alhaj Gohar Rehman for Respondents.

Date of hearing: 22nd March, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The plaintiff/ appellant entered into a lease agreement dated 27-12-2003 with the Habib Bank Ltd, the defendant/respondent, (Exh.P.W.1/4, Exh.D.W.1/1) for the purchase of Suzuki Van. It was agreed upon between the parties that for the actual Price of the vehicle i.e. Rs.3,67,000, a down payment @ 20%, amounting to Rs.73,400 would be paid by the appellant whereas the remaining Rs.2,93,600 would be paid by the respondent. The repayment schedule, Exh.P.W.1/1,was also agreed upon between the parties whereby the appellant was required to repay the loan in sixty (60) monthly instalments of Rs.7,226 each. As per package, the appellant was entitled to free comprehensive insurance, free registration for five years lease term, free 20-litres of petrol and 15-20% discount on trakker installation. It was also agreed upon that no processing charges would be recovered from the appellant. The total costs of said benefits comes to Rs.51,761 break up of which is available on Exh.P.W.1/1.

2.The appellant on coming to know that the respondent/Bank is also charging him for the above said benefits in the agreed monthly installments, he approached the concerned authorities in this regard and lastly filed instant suit for rendition of accounts in the Banking Court. After trial, the suit of the appellant was dismissed vide judgment and decree dated 29-5-2009 by the Banking Court. So, he is before this court in appeal against dismissal of suit.

3.Learned counsel for the appellant in support of his appeal contended that once the disputed amount was shown to be the benefits for the package and rightly admitted by P.W. in his cross- examination, the bank cannot later on recover the same through monthly instalments in a secret way.

4.As against that, the contention of the learned counsel for the respondent/Bank was that the Bank has never recovered the disputed amount and the appellant as he has agreed, is bound to pay the settled number of instalments and the bank is not charging a single penny more than the agreed one by submitting that the learned Banking Court has rightly dismissed the suit of appellant.

5.Learned counsel for the parties were heard and record of the case was perused. The record of the case would reveal that the only dispute between the parties is with regard to Rs.51,761. The appellant claim, it be the benefits, offered for the loan package. The other side has also admitted that the Bank is not charging the same. The learned counsel for the respondent/Bank by referring the break-up of the same appearing in the bottom of Exh.P.W.1/1, submitted that it is meant for the office use only and has never been debited in the account of appellant.

6.The careful perusal of above referred document would reveal that as per repayment schedule the appellant has to pay back (60) instalments of Rs.7,226 each total of which comes to Rs.4,33,560 whereas the total amount to be recovered through instalments shown in the break-up of principal and mark-up/interest, that comes to Rs.3,81,791. If the disputed amount of insurance charges etc i.e. Rs.51,761 is added to the amount to be recovered then that comes to Rs.4,33,552. The document of the Bank itself denies the version of the Bank. The Bank has indirectly included the amount of insurance etc. in the instalment on one side and on the other side, refers the same to be the benefits of the package. The referred benefits appear in a document Annexure-I with the plaint but the Bank refused to accept the same to have been issued by the Bank. The court can take judicial notice of the same. This document is the one reflecting monthly rental for different types of vehicles. It also reflects different amounts of instalments according to period of finance i.e. 36, 48 & 60 months. The name of an official of Bank along with his phone numbers is there. The Bank later on cannot deny from the same. So, there is no

hesitation in our mind to hold that this was the document issued by the Bank just to attract the customers and then in a very tricky manner the said incentives were again included in the recovery schedule. So, for the reasons discussed above, this appeal is allowed. Judgment and decree dated 29-5-2009 of Banking Court is set aside and the suit of the appellant is hereby decreed by holding that the Bank is not entitled to recover the disputed amount of Rs.51,761. The parties are left to bear their own costs.

H.B.T./ 171 /P Appeal allowed.