Appeal U/S.

22 of Financial Institutions

IN THE HIGH COURT OF PUNJB AT LAHORE

Bank Alfalah Limited Group office, 2nd floor, Shahdin Manzil, Faisal Chowk Shahrah-E-Quaid-E-Azam, Lahore APPELLANTS VERSUS Noor Engineering Works Through its Proprietor respondent No.1, MC-926, RESPONDENTS

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. IV at Lahore, in Suit No. 2378/2009, 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 appelent 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 respondent No.1 is a Proprietor 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 respondent had never been allowed disbursement of Rs.20, 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 Mortgage dated 07-03-2007 mention of PKRs.25,50,000/= marked as annexure D. a. 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 indicating the terms of agreement as between the respondent and the applicant.

7.

the mark up to be paid on Facility was 6-months KIBOR as per agreement to be paid within 15 days of becoming due. That as to Para 6 of the plaint contents are denied in its entirely, being exaggerated and manipul ated. Renewal of Banking Facilities for PKR. 20,00,000/= has been mentioned in Para 3 of plaint that initial credit facility of PKR. 10,00,000/= was renewed. a. The fact was that respondent failed to make the payment of principal amount as well as the mark up amount . b. In addition, Annexure G Banking Facilities letter dated 18 -12-2008 for renewal of another term, with ulterior motive, malafide intention and concealment of facts on record. c. Copy of Respondent Certificate dated 23-04-2008 and 31-03-2009 were enclosed and marked as Annexure WS-14 & WS-15.

8.

9.

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.

10. That the respondent unilaterally not repayed the credit facility from PKR.20, 00,000/= The difference of first facility and 2nd facility comes to Rs.11, 40,000/=. The short fall is evident, which negative impact and affected business needs such as production and resultantly impact was drastic unbearable. 11. That turnover in terms of respondentss business activities had touched PKR. 50 lac i.e. The above turnover of activities had been prudently analyzed by the Bank and in increasing Credit Facility. The Appellant credit line was drastically cut down forcefully. The result impact low business turnover and lesser income and high expenditures.

12. That the Para 10 as said was denied.

13. 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).

The Respondent 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. 2378/09 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 to pay Principal amount Ps.19,00,000/=

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 Bankers Book of Evidence Act, hence the same having no legal value in eyes of law.

5.

That the Learned Banking Court erred/has totally failed to look into the proper provision of law and observation.

6.

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.

7.

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 Honble 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.

8.

That the Honble 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.

9.

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.

10. That the order passed the learned Trial Court is quite illegal, arbitrary & against the principal of natural justice, law and equity. 11. That the impugned Judgment and Decree is to be set aside.

12.

That the appeal is within time and no appeal has been preferred against the impugned order except the present one.

13.

That the Appellants crave permission to raise/urge any other ground at the time of hearing. Lahore.

APPELLANT

ADVOCATE FOR THE APPELLANTS

PRAYER In view of the above stated facts and grounds, it is respectfully prayed that this Honble Court may graciously be pleased to:

a)

Call (R & P) record and proceedings of Suit No.2378/09 from Banking Court No. IV at Lahore;

b)

Set aside the impugned Judgment dated 30.09.2011 and Decree dated 11.11.2011 passed by Banking Court No. IV 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) e)

Grant unconditional Leave to Defend. Costs of the Appeal.

Lahore. Dated: 15 /12/2011. APPELLANT

Advocate for the Appellant VERIFICATION I, Bank Alfalah Limited Group office, 2nd floor, Shahdin Manzil, Faisal Chowk Shahrah-E-Quaid-E-Azam, Lahore, 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. Lahore. Dated: 15/12/2011. (ADVOCATE) Solemnly affirmed on oath before me at Lahore on this , by the deponent abovenamed who is identified by Bank Alfalah Limited, Advocate whom I know personally. COMMISSIONER FOR TAKING AFFIDAVITS

DOCUMENTS FILED DOCUMENTS RELIED UPON ADDRESS OF DEFENDANTT FOR SERVICE. ADDRESS OF THE COUNSEL FOR DEFENDANT

: ANNEXURES A/1 to A/4. : ALL RELEVANT DOCUMENTS : AS PER TITLE OF THE SUIT.

: AS PER VAKALATNAMA.