Updated: Tuesday June 29, 2021/AthThulatha Thoul Ki'dah 20, 1442/Mangalavara Asadha 08, 1943, at 09:56:52 PM
BEFORE THE JUDGE BANKING COURT, LAHORE
Established under section 5 of the Financial Institutions’ (Recovery of
Finances’) Ordinance, 2001
Banking Suit No. ___________/2021
Samba Bank Limited (سامبا بنک لمیٹڈ), a Banking Company incorporated and functioning under the Companies’ Ordinance, 1984 (now Companies’ Act, 2017), having its Registered Office at ____________________________, ISLAMABAD; and Branch Office at _________________________, LAHORE; through ________________, Regional Collections Manager (Central), ID Card No. ________________, Mobile No. 0321-44444444 and _________________, Manager EAMVU, ID Card No. 35408-36549879-7, Mobile No. 0323-4587954, duly authorized under section 9(1) of the Financial Institutions’ (Recovery of Finances’) Ordinance, 2001 (Ordinance No. XLVI of 2001) (hereinafter referred to as the “Ordinance”).
ABC son of XYZ, carrying on business under the name &
style of “M/s. Glass Factory”, resident of House No. 49, St. 18-J, Phase IV,
Defence Housing Authority, Lahore Cantonment, LAHORE; AND Office A4, Murad
Centre, Haji Park, Main Bedian Road, Opposite Haji Marriage Hall, LAHORE [Mobile No. 0333-9598409, Phone No. 0092-42-34179674,
Fax No. 0092-000-0000000, E-mail ___@_____.com ((27A(2)(b)) of the CPC] CNIC No. 35201-5760437-5 (Customer, Pawnor, and Borrower).
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH
COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL DATE OF
REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER PROPERTY(IES), inter alia, UNDER SECTION 9 OF THE
ORDINANCE.
Respectfully Sheweth (جناب عالیٰ):---
1. PRELIMINARY (ابتدائیہ):---
1.1. That the name(s), address(es), and other sufficient description(s) of the party(ies) is/are correctly given for the purpose of service of process and other communications of this Hon’ble Court, from time to time, as required. The address(es) of the Defendant(s) is/are one of which he/they had provided in CNIC and/or application(s) for the grant of Finance Facility(ies) and execution of documents in relation thereto for the purpose of Notice(s), if any, in terms of clause 15(2) of the Agreement;
2. PLAINTIFF(S) (مدعی/مدعیان):---
2.1. That the Plaintiff, i.e., Samba Bank Limited, is a Financial Institution within meaning of the Ordinance, incorporated and functioning under the Companies’ Ordinance, 1984 (now Companies’ Act, 2017), having its office(s) as in title of the Plaint, wherefrom it is carrying on its normal banking business in PAKISTAN;
2.2. That this Suit is being filed by the Plaintiff through the person(s) named in the title of the Suit, who is/are fully conversant with the facts of the case and is/are duly authorized, inter-alia, within the meaning of section 9(1) of the Ordinance, to sign and verify the Plaint, institute proceedings and to do such other acts which are necessary and incidental thereto under the law as well as under the Power of Attorney(ies), copy(ies) of which is/are enclosed herewith;
3. DEFENDANT(S) (مدعا علیہان):---
3.1. That the Defendant(s) is/are the Customer(s) being Principal Borrower(s)/Pawnor, within the meaning of section 2(c) of the Ordinance read with rule 12 of the Order VI of the Code, impliedly from number of circumstances, while keeping finance amount with him, and has/have committed default in fulfillment of obligation(s) toward the Plaintiff and the instant Suit is being filed for the recovery of the outstanding Due Amount hereinabove post;
4. FINANCE FACILITY(IES) (مالی سہولیات):---
4.1. That on the request of the Defendant(s) who is maintaining an Account No. 2000534841, the Plaintiff extended a Finance Facility by way of Personal Loan to the tune of Rs. 500,000/- (hereinafter referred as the “Finance Facility”), at the agreed rate of mark-up, service fee, and other charges, in accordance with the terms and conditions fully enumerated in the Application Form (hereinafter referred to as the “Agreement”);
4.2. That along-with the Application Form, a Terms & Conditions was agreed to by the Defendant(s) which forms an integral part of the Agreement. Any default in any of its installments entails penal consequences, i.e., termination of agreement and recall forthwith of the unpaid, future installment along-with the mark-up, charges and other cost(s);
4.3. That, as already said, the Defendant(s) availed the Finance Facility of Rs. 500,000/- (hereinafter referred to as the “Sale Price”) and thereupon agreed to repay an aggregate amount of Rs. 1,048,713.27 (hereinafter referred to as the “Purchase Price”) in five (5) year(s) (60 equal monthly installments) along-with mark-up, which was disbursed to his Account on 30-10-2017, to be Matured on 30-10-2022, in Monthly Installment Rs. 17,421.93, with fixed Annual Mark-up Rate 34%;
5. EXECUTION OF AGREEMENT AND SECURITY DOCUMENT(S) (اجرائےدستاویزی تحفظات/ضمانت):---
5.1. That in consideration and acknowledgement of the Finance Facility, the Defendant(s) tendered, executed, and signed various documents, which include documents creating security for the said Finance Facility, in order to secure its repayment and performance of the contractual obligations, detail of those are, inter alia, listed as under:---
5.1.1. Personal Loan Application and Account Opening Form;
5.1.2. Samba Personal Loan Terms & Conditions;
5.1.3. Facility Agreement;
5.1.4. Letter of Hypothecation;
5.1.5. Disbursal Letter;
5.2. That along-with the Agreement, Repayment Schedule of Monthly Repayment including principal and markup, etc., was agreed to by the Defendant(s) which forms an integral part of the Agreement. Any default in any of its installments entails penal consequences, i.e., termination of agreement and recall forthwith of the unpaid, future installment along-with the mark-up, charges and other cost(s);
6. DESCRIPTION OF THE HYPOTHECATED ASSETS (تفصیل رہن بلا قبضہ):---
6.1. The movable goods owned by the Customer consisting fixtures machinery electrical equipment, securities and stocks. (hypothecated property);
7. STATEMENT UNDER SECTION 9(3) OF THE ORDINANCE, i.e., DISBURSEMENT(S), REPAYMENT(S), AND OUTSTANDING(S) (بیان بروئے سیکشن 9 (3)):---
7.1. That after availing Finance Facility, Defendant(s), initially complied with the terms and conditions governing the Finance Facility, however, later on fell into breach of the repayments and committed default in fulfillment of an Obligation(s). Following amount(s) is/are payable from Defendant;
7.2. That in terms of section 9(3) of the Ordinance, the break-up of the outstanding liability(ies) is as under:---
|
PRINCIPAL |
|
|
|
|
a)
|
Amount availed (Principal) |
500,000.00 |
|
|
b)
|
Amount repaid toward Principal |
3,449.33 |
|
|
c)
|
Net payable/outstanding (Principal) |
496,550.67 |
|
|
|
|
|
|
|
MARK-UP |
|
|
|
|
a)
|
Amount Mark-up Charged |
546,713.27 |
|
|
b)
|
Amount paid toward Mark-up |
15,369.86 |
|
|
c)
|
Net payable/outstanding (Mark-up) |
531,343.41 |
|
|
|
|
|
|
|
Total
Outstanding (C + C):--- |
1,027,894.08 |
|
For the purpose of brevity and in order to avoid repetition, the Original [not copy of] Statement of Account[1] including date wise details of amount(s) paid and payable by Defendant(s) to the Financial Institution/Plaintiff is enclosed, which also forms an integral part of this Plaint in terms of section 9(3) of the Ordinance. It is pertinent to mention here that on the basis of Agreement(s)/Document(s)/Law, Plaintiff is entitled to claim and recover the mark-up throughout with cost of funds for the defaulted period. Grant of Cost of Funds doesn’t exclude the payment of mark-up. Grant of mark-up remains payable till principle amount remains outstand. Cost of Funds are in addition to mark-up meant for penalization to Customer aimed to bring him toward the compliance of Agreement/Contract which also remain lives even after formal expiry within the meaning of section 3, 4, 9, and 24 of the Ordinance read with section 9 of the Contract Act, 1872. Date of expiry has no nexus for the grant of mark up and cost of funds as Agreement never dies/expires and remains live till its fulfillment/finance is paid off;
8.
AGREEMENT, LIMITATION,
BANKER’S LIEN, EXPIRY, AND COF-n-M-UP:---
Section 3(2) of the
Ordinance is reproduced below:---
(2)
Where the customer defaults in the discharge of his obligation, he shall be
liable to pay, for the period from the date of his default till realization of
the cost of funds of the financial institution as certified by the State Bank
of Pakistan from time to time, apart from such other civil and criminal liabilities
that he may incur under the contract or rules or any other law for
the time being in force.
Section 9 of the Contract
Act is reproduced below:---
9. Promises, express
and implied.--- In
so far as the proposal, or acceptance of any promise is made in words, the
promise is said to be express. In so far as such proposal or acceptance is made
otherwise than in words, the promise is said to be implied.
Section 4 of the Ordinance
is reproduced below:---
4. Ordinance to override other laws.-The provisions of this Ordinance shall
have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being
in force.
Section 9(1) of the Ordinance
is reproduced below:---
9. Procedure of Banking Courts.- (1) Where a customer or a
financial institution commits a default in fulfillment of any obligation with
regard to any finance, the financial institution or, as the case may be, the
customer, may institute a suit in the Banking Court by presenting a plaint
which shall be verified on oath, in the case of a financial institution by the
Branch Manager or such other officer of the financial institution as may be
duly authorized in this behalf by power of attorney or otherwise.
Section 24 of the
Ordinance is reproduced below:---
24. Application of the Limitation Act, 1908 (Act IX of
1908).-(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of
1908) shall apply to all cases instituted or filed in a Banking Court after
the coming into force of this Ordinance.
(2)
A suit under section 9 may be entertained by a Banking Court after the period
of limitation prescribed therefore, if the plaintiff satisfies the Banking
Court that he had sufficient cause for not filing the suit within such period.
Section 171 of the
Contract Act, 1874 is reproduced below:---
171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.-- Bankers, factors, wharfingers attorneys of High Court and policy-brokers may, in the absence of a account, any goods bailed to them; but not other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
Article 4 of the
Constitution is reproduced below:---
4. Right of individuals to be dealt with in accordance with law, etc.-(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular,---
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do.
Article 227 of the Constitution is reproduced below:---
227. Provisions relating to the Holy Qur'an and Sunnah.- (1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.
[Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of
non-Muslim citizens or their status as citizens.
-------------------------
Combine study of above clearly demonstrate that Agreement
relating to Public Money (not private money) always remain in field and never expires even after
express expiry agreed into between the parties. Parties have further agreed
that mark-up shall remain payable after express expiry which will be calculated
on daily basis on debit balance. Section 9 of the Contract Act clearly depicts
that contract is express where it is agreed in words and it is implied if
agreed otherwise than of words. Customer has agreed in words that he will
remain liable for the payment of mark-up after expiry of formal express expiry.
This is agreed expressively.
A person who defaults must be burdened in addition to
agreed price of finance, i.e., mark-up, therefore it would be just and fair to
allow mark up throughout in addition to cost of funds for defaulted intervals.
The person who defaults in his obligations may not be awarded in terms of
waiver of mark up and allowing only cost of funds. Both may be allowed for the
purpose of penalization upon default being the requirement of law, agreement,
constitution, and wisdom. Defaulter may not be rewarded by way of exclusion of
mark up.
It is pertinent to mention here that on the basis of
Agreement(s)/Document(s)/Law, Plaintiff is entitled to claim and recover the
mark-up throughout with cost of funds for the defaulted period. Grant of Cost
of Funds doesn’t exclude the payment of mark-up. Some specific provision must
exist for exclusion and without it exclusion would be fatal to justice and
there is no specific or implied exclusion of mark-up upon grant of cost of
funds either in the Ordinance or any other law for the time being in force.
Grant of mark-up remains payable till principle amount remains outstand. Cost
of Funds are in addition to mark-up meant for penalization to Customer aimed to
bring him toward the compliance of Agreement/Contract which also remain lives
even after formal expiry within the meaning of section 3, 4, 9, and 24 of the
Ordinance read with section 9 of the Contract Act, 1872, and Paragraph 5 of the
Agreement. Date of expiry has no nexus for the grant of mark up and cost of
funds as Agreement never dies/expires and remains live till its
fulfillment/finance is paid off. Only fulfillment of an obligations excludes
the payments of cost of funds. Where there is non-fulfillment of an obligation,
both mark-up and cost funds will go together.
وَأَوْفُواْ
بِالْعَهْدِ
إِنَّ
الْعَهْدَ
كَانَ
مَسْؤُولا ً
)عہد
کو پورا کرو،
کیوں کہ قیامت
کے دن عہد کے بارے
میں انسان
جواب دہ ہو
گا۔ بنی
اسرائيل، 17: 34(
the
believers are also˺ those who are true to their trusts and covenants;
وَالَّذِينَ
هُمْ
لِأَمَانَاتِهِمْ
وَعَهْدِهِمْ
رَاعُونَ.
اور
جو لوگ اپنی
امانتوں اور
اپنے وعدوں کی
پاسداری کرنے
والے ہیں. مومنون،
23: 8
وَلَا تَقْرَبُوا۟ مَالَ ٱلْيَتِيمِ إِلَّا بِٱلَّتِى هِىَ أَحْسَنُ حَتَّىٰ يَبْلُغَ أَشُدَّهُۥ ۚ وَأَوْفُوا۟ بِٱلْعَهْدِ ۖ إِنَّ ٱلْعَهْدَ كَانَ مَسْـُٔولًا
And do not touch the substance of an orphan, save to improve it, before he comes of age.42 And be true to every promise - for, verily, [on Judgment Day] you will be called to account for every promise which you have made!43
وَلَا
تَقۡرَبُوۡا
مَالَ
الۡيَتِيۡمِ
اِلَّا
بِالَّتِىۡ
هِىَ اَحۡسَنُ
حَتّٰى
يَبۡلُغَ
اَشُدَّهٗ
وَاَوۡفُوۡا
بِالۡعَهۡدِۚ
اِنَّ
الۡعَهۡدَ
كَانَ
مَسۡــُٔوۡلاً ﴿۳۴﴾
اور
یتیم کے مال
کے پاس بھی نہ
پھٹکنا مگر
ایسے طریق سے
کہ بہت بہتر
ہو یہاں تک کہ
ہو جوانی کو
پہنچ جائے۔
اور عہد کو
پورا کرو کہ
عہد کے بارے
میں ضرور پرسش
ہوگی ﴿۳۴﴾
Do not come near the
wealth of the orphan—unless intending to enhance it—until they attain maturity.
Honour ˹your˺ pledges, for you will surely be
accountable for them.
وَلَا
تَقۡرَبُوۡا
مَالَ
الۡيَتِيۡمِ
اِلَّا
بِالَّتِىۡ
هِىَ
اَحۡسَنُ
حَتّٰى
يَبۡلُغَ
اَشُدَّهٗ
وَاَوۡفُوۡا
بِالۡعَهۡدِۚ
اِنَّ
الۡعَهۡدَ
كَانَ
مَسۡـُٔوۡلًا
﴿17:34﴾
(17:34) (x) And do not even go near the property of the orphan -
except that it be in the best manner - till he attains his maturity.38 (xi)
And fulfil the covenant, for you will be called to account regarding the
covenant.39
يٰۤاَيُّهَا
الَّذِيۡنَ
اٰمَنُوۡۤا
اَوۡفُوۡا
بِالۡعُقُوۡدِؕ اُحِلَّتۡ
لَـكُمۡ
بَهِيۡمَةُ
الۡاَنۡعَامِ
اِلَّا مَا
يُتۡلٰى
عَلَيۡكُمۡ
غَيۡرَ مُحِلِّىۡ
الصَّيۡدِ
وَاَنۡـتُمۡ
حُرُمٌؕ
اِنَّ
اللّٰهَ
يَحۡكُمُ مَا
يُرِيۡدُ ﴿۱﴾
اے
ایمان والو!
اپنے اقراروں
کو پورا کرو۔
تمہارے لیے
چارپائے
جانور (جو
چرنے والے
ہیں) حلال کر
دیئے گئے ہیں۔
بجز ان کے جو
تمہیں پڑھ کر
سنائے جاتے
ہیں مگر احرام
(حج) میں شکار
کو حلال نہ جاننا۔
خدا جیسا
چاہتا ہے حکم
دیتا ہے ﴿۱﴾
يٰۤـاَيُّهَا
الَّذِيۡنَ
اٰمَنُوۡۤا
اَوۡفُوۡا
بِالۡعُقُوۡدِ ؕ
اُحِلَّتۡ
لَـكُمۡ
بَهِيۡمَةُ
الۡاَنۡعَامِ
اِلَّا مَا
يُتۡلٰى
عَلَيۡكُمۡ
غَيۡرَ
مُحِلِّى
الصَّيۡدِ
وَاَنۡـتُمۡ
حُرُمٌ ؕ
اِنَّ
اللّٰهَ
يَحۡكُمُ مَا
يُرِيۡدُ
(5:1) Believers! Honour your bonds!1 All grazing beasts
of the flock2 are permitted to you except those which are
recited to you hereinafter, but you are not allowed to hunt in the state of
Ihram (a state of pilgrim sanctity).3 Indeed Allah decrees as
He wills.4
O believers! Honour your
obligations. All grazing livestock has been made lawful to you—except what is
hereby announced to you and hunting while on pilgrimage. Indeed, Allah commands
what He wills. Dr. Mustafa Khattab, the Clear Quran
وَاِمَّا
تَخَافَنَّ
مِنۡ قَوۡمٍ
خِيَانَةً
فَانۢبِذۡ
اِلَيۡهِمۡ
عَلٰى
سَوَآءٍؕ
اِنَّ
اللّٰهَ لَا
يُحِبُّ
الۡخَآٮِٕنِيۡنَ ﴿۵۸﴾
اور
اگر تم کو کسی
قوم سے دغا
بازی کا خوف
ہو تو (ان کا
عہد) انہیں کی
طرف پھینک دو
(اور) برابر (کا
جواب دو) کچھ
شک نہیں کہ
خدا دغابازوں
کو دوست نہیں
رکھتا ﴿۵۸﴾
بَرَآءَةٌ
مِّنَ
اللّٰهِ
وَرَسُوۡلِهٖۤ
اِلَى
الَّذِيۡنَ
عَاهَدتُّمۡ
مِّنَ الۡمُشۡرِكِيۡنَ
ؕ
[9:1] This is a declaration of disavowal1 by Allah and
His Messenger to those who associate others with Allah in His Divinity and with
whom you have made treaties:2
وَاِنۡ
نَّكَثُوۡۤا
اَيۡمَانَهُمۡ
مِّنۡۢ
بَعۡدِ
عَهۡدِهِمۡ
وَطَعَنُوۡا
فِىۡ دِيۡـنِكُمۡ
فَقَاتِلُوۡۤا
اَـئِمَّةَ
الۡـكُفۡرِۙ
اِنَّهُمۡ
لَاۤ
اَيۡمَانَ
لَهُمۡ
لَعَلَّهُمۡ
يَنۡتَهُوۡنَ
[9:12] But if they break their pledges after making them and attack your
faith, make war on the leaders of unbelief that they may desist, for they have
no regard for their pledged words.15
-------------------------
Most important and first time in history of Pakistan, we allege that no limitation is applicable for the recovery of public money. The only condition available to invoke the jurisdiction of the banking court to recover public money is just default in fulfillment of an obligation within the meaning of section 9 of the Ordinance, whenever it occurs and till what time it persists. Only customer follows the limitation. Bank advances public money and not its own assets whereas customer owes public money in his hands for his personal/business use to gain;
This factum, inter alia, may be noted that no
limitation runs against Recovery Suit as Recovery Suit is filed upon
non-fulfillment in obligation with respect to finance [section 9, Ordinance]
till it is continued read with section 3 of the Ordinance, within the meaning
of section 9 of the Act;
Perusal of section 3 of the FIO read with section 9 of the Contract Act clearly depicts that Agreement never expires and remains live and never dies even after formal/express expiry and converts into impliedly renewed.
-------------------------
Most important and first time in history of Pakistan, we allege that no limitation is applicable for the recovery of public money. The only condition available to invoke the jurisdiction of the banking court to recover public money is just default in fulfillment of an obligation within the meaning of section 9 of the Ordinance, whenever it occurs and till what time it persists. Only customer follows the limitation. Bank advances public money and not its own assets whereas customer owes public money in his hands for his personal/business use to gain;
This factum, inter alia, may be noted that no
limitation runs against Recovery Suit as Recovery Suit is filed upon
non-fulfillment in obligation with respect to finance [section 9, Ordinance]
till it is continued read with section 3 of the Ordinance, within the meaning
of section 9 of the Act;
Perusal of section 3 of the FIO read with section 9 of the Contract Act clearly depicts that Agreement never expires and remains live and never dies even after formal/express expiry and converts into impliedly renewed.
-------------------------
Mark-up is agreed against finance amount whereas cost of funds are granted against non-fulfillment of an obligation/defaulted intervals. Defaulter may not be rewarded with cost of funds disallowing mark-up meaning thereby encouraging to non-fulfillment of an obligation despite encouraging for fulfillment of an obligation. It would be injustice that despite allowing mark-up throughout in addition to cost of funds for defaulted intervals, only cost of funds are allowed for defaulted period after formal expiry.
If grant of cost of funds excluding mark up, instead of grant of both mark up and cost of funds, then this interpretation will encourage the Customer to default right from inception in-spite of fulfillment of an obligation. Exclusion of mark up from cost of funds would be pro customer interpretation/definition motivating him to disregard Agreement. Customer would commit default right from inception of Agreement with a view that lower rate of cost of funds would be applicable, if any, instead of high rate of agreed mark up. This interpretation of statue can’t be permitted under the law, constitution, Agreement, and wisdom in any way. Cost of funds are in addition to mark up. It penalizes Customer and help to bring the Customer toward fulfillment of an obligation. It aims to bring the Customer on track. Mark up and cost of funds runs side by side/parallel, i.e., mark up throughout and cost of funds for defaulted intervals.
It would be ridiculous if Cost of Funds are allowed,
disallowing mark up. It would amount reward to Customer – on what ground this
reward is awarded is “default”.
A person is penalized upon defaults in world, but
unfortunately in Pakistan situation is inverse. This is neither acceptable
under the law, agreement, constitution, and wisdom, if any.
That Facility is secured with Hypothecation of Movable
Property for which specific Article is not provided in Limitation Act, 1908 (hereinafter
referred to as the “Act”) thus Article 120 of the Act read with section
4 (Ordinance to override other laws), 9 (to file suit upon default in
fulfillment of any obligation), and 24 (application of Act subject to
Ordinance) of the Ordinance comes into play and provides period of
limitation to file the suit for the recovery of amount twelve (12) years.
Limitation recons to begin when right to sue accrues, i.e., default in
fulfillment of an obligation with respect to finance. Finance is also covered
with Guarantee for which limitation is 3 years from the date of demand.
Provisions of the Ordinance and the Limitation Act are hit to each other as
Ordinance to prevail and section 9 provides that suit can be filed on default
whereas there no provision in Limitation Act which provides the filing of suit
upon default thus provisions of Limitation Act are not applicable for the
recovery suit on this score, too;
Most important and first time in history of Pakistan, we allege that no limitation is applicable for the recovery of public money. The only condition available to invoke the jurisdiction of the banking court to recover public money is just default in fulfillment of an obligation within the meaning of section 9 of the Ordinance, whenever it occurs and till what time it persists. Only customer follows the limitation. Bank advances public money and not its own assets whereas customer owes public money in his hands for his personal/business use to gain;
This factum, inter alia, may be noted that no limitation
runs against Recovery Suit as Recovery Suit is filed upon non-fulfillment in
obligation with respect to finance [section 9, Ordinance] till it is continued
read with section 3 of the Ordinance, within the meaning of section 9 of the
Contract Act, 1872;
Any citation which adversary party produces at any stage, which is not in conformity to the averments advanced in the plaint or don’t cater for the stance of the Plaintiff, may not be relied upon, being distinguishable.
Any citation may be relied upon subject to its conformity with law, agreement, constitution, and wisdom/open eyes.
Citations of higher or superior courts can’t be relied upon which are against law, constitution, agreement, and wisdom. Courts don’t possess legislative authority.
9. DIFFERENCE BETWEEN “CAUSE OF ACTION” AND “NON-FULFILLMENT OF AN OBLIGATION WITH RESPECT TO FINANCE” (فرق مابین بنائے دعوٰی وعدم تعمیل بابت مالی فرائض ):---
Cause of action once begin to run can’t be stopped subsequently whereas non-fulfillment of an obligation can be made good upon payment of Cost of Fund (hereinafter referred to as the “COF”) which is statutory “punishment” or “penalty” along-with mark-up, meaning thereby non-fulfilment of an obligation may occur several time and payment of COF saves both financial institution as well as customer from unhappy end. Question of limitation never arises. Bank may approach the Court of law as and when deems fit to be.
10. LIMITATION (میعاد سماعت دعوٰی):---
10.1. That Facility is secured with Letter of Hypothecation for which no specific Article is provided in Limitation Act, 1908 (hereinafter referred to as the “Act”) thus residuary Article 120 of the Act read with section 4 (Ordinance to override other laws), 9 (to file suit upon default in fulfillment of any obligation), and 24 (application of Act subject to Ordinance) of the Ordinance comes into play and provides period of limitation to file the suit for the recovery of amount six (6) years, if so advised. Limitation recons to begin when right to sue accrues, i.e., default or expiry date, whichever is later. Article 57 doesn’t cater for the requirements of section 9 of the Ordinance, thus not applicable;
Otherwise, no limitation is applicable for the recovery of public money. The only condition available to invoke the jurisdiction of the banking court to recover public money is just default in fulfillment of an obligation, whenever it occurs and till what time it persists. Only customer follows the limitation. Bank advances public money and not its own assets whereas customer owes public money in his hands for his personal/business use to gain;
10.2. This factum, inter alia, may be noted that no limitation runs against Recovery Suit as Recovery Suit is filed upon non-fulfillment in obligation with respect to finance [section 9, Ordinance] till it is continued read with section 3 of the Ordinance, within the meaning of section 9 of the Contract Act, 1872. Contract remain in field, independent of limitation, with full force and effect unless it is completed in letter and spirit.
11. STATEMENT UNDER ORDER 7, RULE 26 REGARDING LEGAL REPRESENTATIVES (بیانیہ زیر حکم 7، رول 26، متعلقہ قانونی وارثان):---
11.1. Following will be legal representatives who will intimate the fact of death of Plaintiff to this Court, and will be made party thereupon:--
11.1.1. Plaintiff is a Financial Institution (legal entity) which never dies except with the process of law, thus no need to name legal representatives, even in case of dissolution of the entity;
12. NON-FULFILLMENT OF AN OBLIGATION (عدم تعمیل)/CAUSE OF ACTION (بنائے دعوٰی):---
12.1. That the non-fulfillment of an obligation with respect to finance (Cause of Action) accrued in favour of Plaintiff and against the Defendant firstly, when Defendant approached the Plaintiff for obtaining financial accommodation, secondly, when Defendant availed and utilized the Finance Facility, the documents were executed, agreement was signed and executed, and finally, including but not limited to 30-10-2017 which is express contract and thereafter on each and every occasion, which is implied contract, inter alia, within the meaning of section 9 of the Contract Act, 1872 and rule 12 of the Order VI of the Code read with legal notice sent to him, when the Defendant(s) kept the finance amount in his hands and defaulted in fulfillment of an obligation on due dates in accordance with the agreed repayment arrangements as shown in the Statement of Account. The same is still persisting as the principle amount is within the hands of the Defendant(s)/unpaid;
13. JURISDICTION (اختیار سماعت):---
13.1. That the Finance Facility was granted and availed by the Defendant at LAHORE, Defendant resides at LAHORE, non-fulfilment in obligation with respect to finance occurred in LAHORE, Branch Office is situated within the precincts of LAHORE, therefore, this Hon’ble Court has got jurisdiction to entertain and adjudicate upon the instant Suit; and
14. VALUE OF SUIT (مالیت دعوٰی):---
14.1. That valuation of Suit for the purpose of Court Fee and Jurisdiction has been fixed to Rs. 1,027,894.08 on which requisite Ad Valoram Court Fee of Rs. 15,000/- has been paid under Article 1 of the Court Fee Act, 1870, Schedule 1st.
Prayer (استدعا):---
In view of the above it is respectfully prayed that:---
(a) Decree for the sum of Rs. 1,027,894.08 along-with mark-up throughout and other cost(s), inter alia, under section 21 of the Ordinance, including but not limited to the cost of auction, if any, be passed in favour of the Plaintiff and against the Defendant (jointly and/or severally, wherever applicable), to the Plaintiff(s);
(b) Benefit, inter alia, of section 3 and 17 of the Ordinance disregarding the date of last payment, may also be granted for the default intervals, in addition to full mark up till the realization of last paisa of principle amount (public money) which is in the hand of Customer(s)/Pawnor(s) is paid off to Plaintiff/Pawnee, as grant of cost of funds doesn’t exclude the grant of mark-up throughout;
(c) An Order that the Hypothecated Stock(s)/Assets, detailed on internet in terms of Declaration, may be attached and further ordered to be sold and the sale proceeds recovered there-from be paid towards the adjustment of the decreetal amount in accordance with law;
(d) In case the proceeds of the sale so made are found to be insufficient to satisfy decree, the remaining amount to be ordered to be recovered from the person and other assets (including “Benami”) of the Defendant(s) and by way of arrest and detention of Defendant(s) in civil prison within the meaning of, inter alia, section 19(2) of the Ordinance till realization of decree amount;
(e) Liquidated damages @ 20% per annum, special costs etc., inter alia, under section 74 of the Contract Act, 1872, may also be granted from the date of default till the legal realization of the decreetal amount;
(f) Benefit of section 10(5) of the Ordinance may also be granted where circumstances render it necessary upon stance of Defendant is found materially incorrect, inter alia, in Application for Leave to Defend (hereinafter referred to as the “ALD”), if any, in terms of penalty more than 5 per cent of the amount claimed;
(g) Benefit of Rule 11 read with 54 of the Order XXI of the Code regarding attachment of Property may also be granted;
(h) All other charges and expenses may also be granted incurred before or after decree, i.e., fee for court auctioneer fixed by court, video recording, process fee filed time to time, miscellaneous expenses or other charges and expenses within the meaning of Order 21, Rule 67(2) of the Code read with section 21 and 15(10) of the Ordinance;
(i) Suit may be converted into execution proceedings after the executable decree is passed, inter alia, within the meaning of section 19(1) of the Ordinance read with Order 21, Rue 10 of the Code without filing of separate application for this purpose;
(j) Pass an order for the supply of certified copies of the judgment and decree upon pronouncement of judgment, for which Plaintiff will pay cost, within the meaning of Order XX, Rule 20 of the Code;
(k) In case, after determination of liability upon notices under section 9(5) of the Ordinance, the Defendant is found reportedly left the place of residence (عدم سکونت) mentioned in Computerized National Identity Card, as given in title of the suit, may be blocked/cancelled/impound/confiscated, inter alia, under section 18(2)(c) read with section 19(4), 30(1)(a)(b), 30(2)(a)(b) of the National Database and Registration Authority Ordinance, 2000, and order may be passed against NADRA authorities for doing so and submission of compliance report. Address given in Application or Agreement is apart, if so advised;
(l) Compensatory Cost of Rs. 100,000/-, under section 35-A(2) of the CPC, in respect of false or vexatious claims or defences, if any, may also be awarded;
(m) Full cost of the Suit may also be awarded under Memorandum of Professional Fee and Rs. 1,000/- for each date of hearing from second opportunity to argue on ALD, being travelling expenses; and
(n) Any other relief, which this Hon’ble Court deems fit and proper in the peculiar circumstances of the case, may also be granted apart from the relief originally sought for.
|
Through |
Plaintiff(s)/Samba Bank Limited Nasir Nazir Butt (ناصر
نذیر بٹ) Advocate (وکیل) |
|
Safdar Mahmood Mughal (صفدر
محمود مغل) Advocate High Court (وکیل عدالت
عالیہ) |
|
47-D/2, Islam St. 5, Karnal Pura, Shah
Kamal, Near Masjid-e-Aouqaf, Ichhra, LAHORE. |
Verification (تصدیق):---
Verified on
Oath[2][solemn
affirmation] today this _______ day
of June, 2021
at LAHORE, that the contents
of paragraphs of above Plaint from 1 to 11 are
correct to the best of my knowledge, information, and belief and remaining
paragraphs from 12 to 14 are believed by me to
be true and correct on the information received.
Plaintiff/Samba
Bank Limited
Certificate (سند):---
As per information received from Principal, this is first Suit on the subject matter and nothing is pending in any Court of Law (دیگر دعوٰی بر این موضوع در این دادگاہ زیر سماعت نیست۔).
Advocate (وکیل)
Note (اطلاع/آگاہی):---
1. All the original documents duly executed between the parties are held with Plaintiff and can be produced where circumstances exist which render it necessary to produce them in this Hon’ble Court; and
2.
As per section 9(2) of the
Ordinance Copy(ies) of Plaint, section 9(5) of the Ordinance read with Order
VII, Rule 9 (a) & (b) Draft forms of Summons/Notices and Process Fee has
been filed. Envelopes (acknowledgement due) are also furnished as required
under section 9(5) of the Ordinance read with Rule 25 of the Order ibid.
A strong cover would be furnished in compliance of PART – G DOCUMENTARY
EVIDENCE, rule 16 of the High Court Rules,
Advocate (وکیل)
References:---
1. Wisdom/Open Eyes;
2. Constitution of Islamic Republic of Pakistan, 1973;
3. The Financial Institutions (Recovery of Finances) Ordinance, 2001;
4. The Code of Civil Procedure, 1908;
5. The Negotiable Instruments Act, 1881;
6. The Limitation Act, 1908; and
7. The Contract Act, 1872.
Advocate (وکیل)
Citations which are distinguishable being per incuriam:---
1. 1987 MLD 2757
2. 2019 CLD 996
Above citations are not commensurate to law, agreement, constitution, and wisdom. Only those citation can be relied upon which are in conformity to law, constitution, agreement, and finally wisdom.
Advocate (وکیل)
BEFORE THE
Established under section 5 of the Financial Institutions’ (Recovery of
Finances’) Ordinance, 2001
Court Fee of Rs. 2/- under Article
1(c) 2nd para of Court Fee Act, 1870
Schedule 2nd., See section 3(d)
Application No. __________2021
in
Suit No. _______________/2021
Samba Bank Limited – Versus – ABC
APPLICATION,
inter alia, UNDER SECTION 16(1),
23(1)(2) OF THE ORDINANCE READ WITH (خواندن
با) ORDER 38, RULE 5, ORDER 39, RULE 1 AND SECTION
151 OF THE CODE OF CIVIL PROCEDURE, 1908, FOR THE ATTACHMENT OF MORTGAGED/LEASED
PROPERTY OF DEFENDANT/RESPONDENT, BEFORE JUDGMENT AND GRANT OF TEMPORARY
INJUNCTION.
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND
OTHER CHARGES TILL DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF MORTGAGED,
HYPOTHECATED, AND OTHER PROPERTY(IES), inter
alia, UNDER SECTION 9 OF THE ORDINANCE.
Respectfully Sheweth (جناب عالٰی):---
1. That the Applicant/Plaintiff has filed an accompanying suit for recovery of amount, the contents whereof may be read as an integral part of this Application;
2. That Respondent(s)/Defendant(s) has/have been sued as Debtor(s) who has/have executed certain document(s) copies of which has been appended with Plaint;
3. That in order to secured the repayment of the Finance Facility, the Respondent(s)/Defendant(s) has/have hypothecated his/her/their movable goods/items consisting of furniture, fixtures, machinery, and electrical equipments, securities, and stocks and executed a letter of Hypothecation in this respect in favour of the Applicant /Plaintiff;
4. That the Applicant/Plaintiff earnestly apprehends that the Respondent(s)/Defendant(s) will dispose of the Hypothecated Assets to defeat and frustrate claim of the Applicant/Plaintiff likely to be decreed in favour of the Applicant/Plaintiff; and
5. That in the presence of the aforesaid circumstances, if the Hypothecated Assets are not attached before judgment, or Respondent(s)/Defendant(s) is not restrained from transferring, alienating, parting with possession, or otherwise encumbering, charging, disposing of, or dealing with the assets in any manner, the Applicant/Plaintiff shall be exposed to irreparable loss & injury and claim of the Applicant/Plaintiff shall be frustrated.
Prayer (استدعا):---
It is, therefore, respectfully prayed that, while keeping in view the above said circumstances, the Hypothecated Assets may kindly be attached before judgment in order to ensure the interests of the Applicant/Plaintiff;
It is further prayed that, the Respondent(s)/Defendant(s) may kindly be restrained from transferring, alienating, parting with possession, or otherwise encumbering, charging, disposing of, or dealing with the said Hypothecated Assets in any manner whatsoever; and
Any other relief, which this Hon’ble Court deems fit and proper in the peculiar circumstances of the case, may also be granted apart from the relief originally sought for.
|
Through |
Plaintiff/Samba Bank Limited Nasir Nazir Butt (ناصر
نذیر بٹ) Advocate (وکیل) |
|
Safdar Mahmood Mughal (صفدر
محمود مغل) Advocate High Court (وکیل عدالت
عالیہ) |
|
47-D/2, Islam St. 5, Karnal Pura, Shah
Kamal, Near Masjid-e-Aouqaf, Ichhra, LAHORE. |
BEFORE THE
Established under section 5 of the Financial Institutions’ (Recovery of
Finances’) Ordinance, 2001
Application No. __________2021
in
Suit No. _______________/2021
Samba Bank Limited – Versus – ABC
APPLICATION,
inter alia, UNDER SECTION 16(1),
23(1)(2) OF THE ORDINANCE READ WITH (خواندن
با) ORDER 38, RULE 5, ORDER 39, RULE 1 AND SECTION
151 OF THE CODE OF CIVIL PROCEDURE, 1908, FOR THE ATTACHMENT OF MORTGAGED/LEASED
PROPERTY OF DEFENDANT/RESPONDENT, BEFORE JUDGMENT AND GRANT OF TEMPORARY
INJUNCTION.
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND
OTHER CHARGES TILL DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF MORTGAGED,
HYPOTHECATED, AND OTHER PROPERTY(IES), inter
alia, UNDER SECTION 9 OF THE ORDINANCE.
Affidavit (بیان
حلفی) of:--- |
Ali Bahadur, Regional Collections
Manager (Central), duly authorized under section 9(1) of the Financial
Institutions’ (Recovery of Finance’) Ordinance, 2001, having its Registered
Office at ISLAMABAD and Branch Office at Plot No. 86, Commercial Area,
Cavalry Ground, Walton Cantonment, LAHORE. |
Respectfully
Sheweth (جناب
عالیٰ):---
I, the above named Deponent, do hereby solemnly affirm and declare that the contents of the accompanying application are true and correct to the best of my knowledge, belief, and information and nothing has been concealed therein.
DEPONENT
(من محلف)
Verification (تصدیق):---
Verified on Oath at LAHORE on this ______ day of June, 2021, that the contents of the above Affidavit are true and correct to the best of my knowledge, information, and belief and nothing has been concealed therein.
DEPONENT (من محلف)
BEFORE THE
Established under section 5 of the Financial Institutions’ (Recovery of
Finances’) Ordinance, 2001
Application No. __________2021
in
Suit No. _______________/2021
Samba Bank Limited – Versus – ABC
APPLICATION,
inter alia, UNDER SECTION 16(1),
23(1)(2) OF THE ORDINANCE READ WITH (خواندن
با) ORDER 38, RULE 5, ORDER 39, RULE 1 AND SECTION
151 OF THE CODE OF CIVIL PROCEDURE, 1908, FOR THE ATTACHMENT OF MORTGAGED/LEASED
PROPERTY OF DEFENDANT/RESPONDENT, BEFORE JUDGMENT AND GRANT OF TEMPORARY
INJUNCTION.
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND
OTHER CHARGES TILL DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF MORTGAGED,
HYPOTHECATED, AND OTHER PROPERTY(IES), inter
alia, UNDER SECTION 9 OF THE ORDINANCE.
Affidavit (بیان
حلفی) of:--- |
Dildar Khan, Manager EAMVU, duly
authorized under section 9(1) of the Financial Institutions’ (Recovery of
Finance’) Ordinance, 2001, having its Registered Office at ISLAMABAD and
Branch Office at Plot No. 86, Commercial Area, Cavalry Ground, Walton
Cantonment, LAHORE. |
Respectfully
Sheweth (جناب
عالیٰ):---
I, the above named Deponent, do hereby solemnly affirm and declare that the contents of the accompanying application are true and correct to the best of my knowledge, belief, and information and nothing has been concealed therein.
DEPONENT
(من محلف)
Verification (تصدیق):---
Verified on Oath at LAHORE on this ______ day of June, 2021, that the contents of the above Affidavit are true and correct to the best of my knowledge, information, and belief and nothing has been concealed therein.
DEPONENT (من محلف)
FORM NO. 14 (ORDER IX-A)
Case Management Statement of Plaintiff(s)
In the Court of
Judge Banking Court No. _________, Lahore
Civil Suit No.
Case Management Conference.
Date _________________________________ Time ________________________
Pursuant
to Order IX-A, the parties (through their advocates) submit Case Management
Statement under the order. Each Party(s) certifies that his advocate (who will
try this case) met and conferred for the preparation of this Statement as
required by Order IX-A.
(1) Statement of admitted facts.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(2) Statement of disputed facts.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(3) Issues
arising for determination including preliminary issues, if any. (in case of
disagreement on issues, enumerate issues which are agreed and those which are
not agreed for court’s consideration.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(4) Plaintiff(s)
elect, the following from this list of consensual dispute resolution
mechanisms.
_______________________________________________________________________
(a) Mediation. ______________________________________
(b) Arbitration. ______________________________________
(c) Conciliation. ______________________________________
(5) Deadline
for disclosure of witnesses:
Party Deadline
____________________________ _____________________________
(6) Trial
Schedule
(a) Trial Date _____________________________
(b) Anticipate length of _____________________________
(7) Name
of Trial Advocate: Nasir
Nazir Butt, Advocate
Address: 47-D/2,
Islam St. 5, Karnal Pura, Shah Kamal, near Masjid-e-Aouqaf, Ichhra, Lahore.
Telephone
Number 0092-321-4624078
Advocate
for: Plaintiff
(Samba Bank Limited)
Signature
(Advocate) _____________________________
(8) Name
of the Plaintiff(s) Samba
Bank Limited
Signature
(Plaintiff(s)) _____________________________
The Court
finds that each party was represented by an advocate responsible for trial of
this matter and was given an opportunity to be heard as to all matters
encompassed by the Case Management Statements by each party and the Joint Case
Management Statement by all the parties. The Court adopts this Statement as
modified and enters if as the order of this Court under Order IX-A.
IT IS SO
ORDERED.
Memorandum
of Address |
|||||||
(فرد پتہ) |
|||||||
In the Court of: |
JUDGE |
||||||
Samba Bank Limited |
Plaintiff(s) |
||||||
VERSUS |
|||||||
ABC |
Defendant(s) |
||||||
Suit/Application: |
SUIT FOR THE RECOVERY OF RS. 1,027,894.08
ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL
DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER
PROPERTY(IES), inter alia, UNDER
SECTION 9 OF THE ORDINANCE. |
||||||
|
|||||||
Your Honour, the address of the PLAINTIFF(S) is as under: |
|||||||
|
|||||||
Name with
Father’s Name and Caste |
Address |
Tehsil |
Post Office |
District |
|||
Samba Bank Limited, a Banking Company incorporated and functioning under the Companies’ Ordinance, 1984 (now Companies’ Act, 2017), having its Registered Office at 2nd Floor, Building No. 13-T, F-7 Markaz, near Post Mall, ISLAMABAD; and Branch Office at Akbar Chowk, Faisal Town, LAHORE; through Ali Bahadur, Regional Collections Manager (Central), ID Card No. 000000-0000000-1, Mobile No. 0333-4566687 and Ali Naqvi, Manager EAMVU, ID Card No. 35201-2862075-9, Mobile No. 0323-4567669, duly authorized under section 9(1) of the Financial Institutions’ (Recovery of Finances’) Ordinance, 2001 (Ordinance No. XLVI of 2001) (hereinafter referred to as the “Ordinance”). |
|||||||
Your Honour, in above case, the execution of summon, notice, or other orders, be effected to the above address during the process of case and the Plaintiff(s) above named shall notify the change in address, if any. |
|||||||
|
|||||||
List Under Order 7, Rule 14 which
Plaintiff will deliver with the Plaint (فرد انحصار) |
||||||
|
||||||
In the Court of: |
JUDGE |
|||||
Samba Bank Limited |
Plaintiff(s) |
|||||
VERSUS |
||||||
ABC |
Defendant(s) |
|||||
Suit/Application: |
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER PROPERTY(IES), inter alia, UNDER SECTION 9 OF THE ORDINANCE. |
|||||
|
|
|
||||
S. No. |
Questions |
Answers |
||||
j |
Whether you have submitted any document along-with plaint? If so, what? |
Yes, all documents filed with the Plaint under Order 13, Rule 1, of the Code of Civil Procedure, 1908. |
||||
k |
Whether you would submit any other document which is in your possession or power? If so, what? |
Yes, subject to requirement and under Order of the Court; and Any other documents will be produced at its relevant time, if so required. |
||||
l |
Whether you intend to argue on any document? If so, what they are and under whose possession? |
All other documents as and when required, after framing of issues. Other relevant documents upon its discovery. |
||||
|
||||||
UNDER ORDER 13, RULE 1, CODE OF CIVIL
PROCEDURE, 1908 List of Documents produced with the plaint (or at
the first hearing) on behalf of (plaintiff or defendant) (فہرست
دستا ویزات) |
|||||||||
|
|||||||||
In the Court of: |
JUDGE |
||||||||
Samba Bank Limited |
Plaintiff(s) |
||||||||
VERSUS |
|||||||||
ABC |
Defendant(s) |
||||||||
Suit/Application: |
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH COST OF FUNDS, MARK-UP,
LIQUIDATED DAMAGES, AND OTHER CHARGES TILL DATE OF REALIZATION OF WHOLE
AMOUNT BY SALE OF HYPOTHECATED AND OTHER PROPERTY(IES), inter alia, UNDER SECTION 9 OF THE ORDINANCE. |
||||||||
|
|||||||||
S. No. |
Nature and date of document, if any |
What to prove by documents |
What order received regarding document |
Remarks |
|||||
What exhibit is annexed, if document is included |
Date of return, if rejected |
Signatures to whom returned |
|||||||
1. Statement of Account(s) along-with date wise detail and schedule of payment; 2. Copy CNIC; 3. Copy Personal Loan Application and allied documents; 4. Copy Facility Agreement; 5. Copy Disbursal Letter; 6. Copy Letter of Hypothecation; 7. Copies of Power of Attorney of Bank Officers; and 8. Memorandum of Professional Fee. |
Recovery |
|
|
|
|
||||
|
|||||||||
BEFORE
THE JUDGE BANKING COURT, LAHORE
Established under section 5 of the Financial
Institutions’ (Recovery of Finances’) Ordinance, 2001
Banking Suit No. _________/2021
Samba Bank Limited – VERSUS
– ABC
SUIT
FOR THE RECOVERY OF PUBLIC MONEY OF RS. 1,027,894.08
ALONG-WITH COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL
DATE OF REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER
PROPERTY(IES), inter alia, UNDER
SECTION 9 READ WITH SECTION 3 OF THE FINANCIAL INSTITUTIONS’ (RECOVERY OF
FINANCES’) ORDINANCE, 2001.
Ref. No. |
PF/NLA/Samba |
Date: |
June 28, 2021 |
CERTIFICATE
OF PROFESSIONAL FEE (سند
برائے پیشہ
ورانہ اجرت), UNDER RULE 20 – PART B – FEES
OF COUNSEL OF 16 LEGAL PRACTITIONERS, HIGH COURT RULES - PUNJAB.
For the purpose of having my fee allowed on taxation
as against the party or parties, who may be liable for costs under the judgment
or order of the Court, I, Nasir Nazir Butt, Advocate, in
accordance with rule 20 of the rules regulating the fees of counsel in the
Court, hereby certify that in the above case the following fees were paid to me
as my exclusive fee on the dates and by the person or persons specified below and
that no portion of such fees has been, or has been agreed to be, returned or
remitted or appropriated to the use of any other person by me or by any one
acting on my behalf.
Matter |
Fee |
Date of Payment |
By who paid |
Address of person who actually made such payment |
As above |
As below |
As above |
As below |
As below |
Certified that undersigned has charged Rs. 50,000/- (Rupees fifty thousand only), in the
titled suit from Plaintiff, detailed below,---
Particulars |
Amount (Rs.) |
Remarks |
Professional Fee of Lawyer[3] |
50,000 |
plus Rs. 1,000 per hearing as below
given |
Grand Total (کل
میزانیہ):--- |
50,000 |
|
Rs. 1,000/- per hearing from second opportunity of arguments on ALD, may also be awarded being traveling and food expenses from and to Lahore – Gujranwala/Hafizabad.
Nasir Nazir Butt
Advocate
for
BEFORE THE
Affix Court Fee here
Banking Suit No.
__________/2021
Samba Bank Limited |
|
Plaintiff Appellant Petitioner Complainant |
VERSUS (بخلاف/بنام)
ABC |
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Defendant Respondent Accused |
I/We Samba
Bank Limited through Ali Bahadur and Ali Naqvi, the Plaintiff(s) above-named hereby appoint, inter alia, Mr. Nasir Nazir Butt, Advocate of
, CNIC No. 35202-2548991-9, Cell No. 0321-4624078,
122 – Ground Floor, Lawyers’ Chambers, District Courts, LAHORE & 47-D/2,
Islam St. 5, Karnal Pura, Shah Kamal, near Masjid-e-Aouqaf, Ichhra, LAHORE, in
the above mentioned case, to do all or any of the following acts, deeds and
things:---
1.
To appear, act, and plead for me/us in the above mentioned case, in
this court or any other court in which the same may be tried or heard in the
first instance or in appeal, review, or execution, or in any other proceedings
arising out of or connected therewith.
2.
To sign and verify and file or withdraw all proceedings, petitions,
appeals, affidavits, and applications for compromise or withdrawal, or for
submission to arbitration of the said case, or any other documents as may be
deemed necessary or advisable by them for the conduct, prosecution or defense
of the said case at all its stages.
3.
To receive payment of, and issue receipts for, all moneys that may be
or become due and payable to us during the course or on the conclusion of the
proceedings.
4.
To do all other acts and things that may be deemed necessary or
advisable during the course of the proceedings.
5.
To delegate all or any of the above powers to any other legal
practitioner.
AND I/We hereby agree:---
a)
to ratify whatever the Advocate(s) or his/their substitute may do in
the proceedings.
b)
not to hold the Advocate(s) or his/their substitute responsible if the
said case be proceeded ex parte (یکطرفہ) or
dismissed in default in consequence of his absence from the court when it is
called for hearing.
c)
that the Advocate(s) shall be entitled to withdraw from the prosecution
of the said case if the whole or any part of the agreed fees remain unpaid.
In witness whereof I/We have
singed this Vakalatnama (وکالت
نامہ)
hereunder the contents of which have been
read/explained to and fully understood by me/us, this day of June, 2021, at LAHORE.
Signatures
of executant(s) |
NASIR NAZIR BUTT ADVOCATE Computer Code No. P-LH-22480 |
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NIZAM-UD-DIN KHAN ADVOCATE HIGH COURT Computer
Code No. P-LH-22269 |
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SAFDAR MAHMOOD MUGHAL ADVOCATE HIGH COURT Computer Code No.
P-LH-37719 |
Process Fee(طلبانہ) |
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In the Court of: |
JUDGE |
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Suit/Application No. |
_____________________/2021 |
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Samba Bank Limited |
Plaintiff(s) |
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VERSUS |
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ABC |
Defendant(s) |
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Date of Hearing: |
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Date of Submission |
Purpose for the submission |
Who submitted |
Nos. |
Stamps |
As the date of filing of the Suit |
To summon the Defendant(s) |
Plaintiff(s) |
1 |
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BEFORE THE
Banking Suit No. _______________/2021
Samba
Bank Limited – VERSUS – ABC
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH
COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL DATE OF
REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER PROPERTY(IES), inter alia UNDER SECTION 9 OF THE
ORDINANCE.
INDEX (فہرست)
S. No. |
Description (تفصیل) |
Total No. of Pages |
Pages (صفحات) |
1. |
Court Fee of Rs. 15,000/- |
|
|
2. |
Plaint (دعوٰی) |
8 |
1 – 8 |
3. |
Application for Attachment with Affidavit (درخواست قرقی بمعہ بیان حلفی) |
4 |
9 – 12 |
4. |
Memorandum of Address (فرد پتہ) |
1 |
13 |
5. |
List of Documents under Order 7, Rule 14 of the Code of Civil Procedure, 1908 (فہرست دستاویز) |
1 |
14 |
6. |
List of Reliance under Order 13, Rule 1 of the Code of Civil Procedure, 1908 (فرد انحصار) |
1 |
15 |
7. |
Original Statement of Account (مکمل بہی کھاتہ) |
2 |
16 – 17 |
8. |
Copy of Repayment Schedule (نظام الاوقات ادائیگی) |
1 |
18 |
9. |
Copy National Identity Card of Defendant(s) (نقل شناخت نامہ مدعا علیہ) |
1 |
19 |
10.
|
Copy of Personal Loan Application and Account Opening Form with allied documents (درخواست ذاتی قرض) |
33 |
20 – 52 |
11.
|
Copy of Facility Agreement (مالی معاہدہ) |
7 |
53 – 59 |
12.
|
Copy of Letter of Hypothecation (رہن نامہ بلا قبضہ) |
3 |
60 – 62 |
13.
|
Copy of Disbursal Letter (مراسلہ فراہمی/ادائیگی قرضہ) |
1 |
63 |
14.
|
Copies of Power of Attorney of Bank Officer(s) (مختار نامہ بنک آفیسر) |
8 |
64 – 71 |
15.
|
Certificate of Lawyer’s Professional Fee (سند برائے پیشہ ورانہ اجرت) |
1 |
72 |
16.
|
Power of Attorney of Lawyer(s) (مختار نامہ وکیل) |
1 |
73 |
17.
|
Process Fee (فرد طلبانہ) |
1 |
77 |
Plaintiff/Samba Bank Limited
Through
Nasir Nazir Butt, Advocate
47-D/2,
Shah Kamal, near Masjid-e-Aouqaf Ichhra,
BEFORE THE
Established under section 5 of the Financial Institutions’ (Recovery of
Finances’) Ordinance, 2001
Court Fee/
کورٹ فیس
Banking Suit No. _______________/2021
Samba Bank Limited (سامبا
بنک لمیٹڈ)
ABC
SUIT FOR THE RECOVERY OF RS. 1,027,894.08 ALONG-WITH
COST OF FUNDS, MARK-UP, LIQUIDATED DAMAGES, AND OTHER CHARGES TILL DATE OF
REALIZATION OF WHOLE AMOUNT BY SALE OF HYPOTHECATED AND OTHER PROPERTY(IES), inter alia UNDER SECTION 9 OF THE
ORDINANCE.
Plaintiff
Through
Council
Samba Bank Limited – VERSUS – ABC
بحث بر
درخواست حق
دفاع
·
درخواست
حق دفاع
زائدالمیعاد
ہے۔
·
PLA is barred by time.
·
اجراء
مالی سہولت
تسلیم شد ہے۔
·
Grant of Finance Facility
is admitted.
·
دفعہ
10 تعمیل شد نہ
ہے۔
·
Requirements of section
10 are not complied with.
·
فریق مخالف
کا انکار (مذبذب)
(مائل بہ گریز،
پہلو تہی،
حیلہ ساز) (کپٹپورن
انکار) بلا
تفصیل و بلا
تخصیص ہے۔
·
Denial is evasive.
·
بیان حلفی لف
نہ ہے۔
·
PLA is not supported with
Affidavit.
·
درخواست
حق دفاع تصدیق
شد نہ ہے۔
·
PLA is not duly verified
on Oath.
بغرض
فیصلہ مطلوبہ
مواد صفحہ مثل
پر موجود ہے۔
فریق مخالف کی
بحث نہ کرنے
پر کیا جانے
والا فیصلہ
غیر قانونی
متصور نہ ہوگا۔
فیصلہ صادر
فرمایا جائے۔
وکیل مدعی/مسئول
علیہ
درخواست
برائے اجراء
مصدقہ نقل
فیصلہ
شد
سائل
درخواست کرتا
ہے کہ نقل
مندرجہ ذیل،
حسب ضابطہ
عنائت فرمائی
جائے۔
قسم
مقدمہ: دیوانی/اپیل/بینکنگ
نام
فریقین: سامبا بنک
لمیٹڈ بنام اکبر
علی
نوعیت
مقدمہ یا جرم: دعوٰی دلا
پانے
نام
موضع: لاہور
نام
جج: جج بینکنگ
کورٹ نمبر ___،
لاہور
تاریخ
فیصلہ یا
ابتدائی اپیل: _____________
مقصد
نقل: ذاتی/اپیل/رٹ/برائے
ریکارڈ
تفصیل
مطلوبہ نقل: حکم و فیصلہ مورخہ
___________
آئندہ
پیشی: ــــــــــــــــــــــــــــــــــ
ناصر
لاء ایسوسی
ایٹس
نام
سائل: ناصر
نذیر بٹ ولد
نذیر احمد بٹ،
پیشہ وکالت،
قومیت مسلم،
موضع اچھرہ،
کوچہ کرنال
پورہ، محلہ شاہ
کمال،
ڈاکخانہ مسلم
ٹاؤن، تھانہ
وحدت کالونی،
تحصیل ماڈل
ٹاؤن، ضلع لاہور،
فون نمبر: 4624078-0321
ای
میل ایڈریس: nasirlaw@yahoo.com، ویب سائٹ: nasirlawsite.com
درخواست
برائے حصول
نقل
جناب
عالیٰ، سائل
درخواست کرتا
ہے کہ نقل مندرجہ
ذیل حسب ضابطہ
نقشہ عنائت
فرمائی جائے
آئندہ
پیشی: ـــــــــــــــــــــــــــــــــــــــــــــــــــــــــ
قسم
مقدمہ (1)
دیوانی،
فوجداری،
متفرق (2) ابتدائی
اپیل |
نام
فریقین |
نوعیت
دعویٰ مع
مالیت مقدمہ
یا جرمعہ
تشریح |
نوعیت
دعوٰی یا جگہ
مع نمبر حد
بست جہاں
جائیداد
متنازعہ
واقعہ ہے،
جہاں تنازعہ
پیدا ہوا، یا
جہاں جرم
وقوع پذیر
ہوا۔ |
نام
حاکم عدالت
ماتحت یا عدالت
اپیل، اگر
کوئی ہو |
تاریخ
فیصلہ یا ابتدائی
اپیل |
کس
مطلب کے
واسطے نقل
درکار ہے؟ |
تفصیل
نقول مطلوبہ |
دستخط |
|
مدعی
یا مستغیث |
مدعا
علیہ یا ملزم |
||||||||
دیوانی
(بینکنگ) |
سامبا
بنک لمیٹڈ |
اکبر علی |
دعویٰ
دلا پانے |
لاہور |
جج
بینکنگ کورٹ
نمبر ــــــــــــــــــ،
لاہور |
|
ذاتی/اپیل/رٹ |
حکم و
فیصلہ مورخہ ــــــــــــــــــــــــــ |
|
پورا
پتہ
نام
سائل |
ولدیت |
پیشہ |
قومیت |
نام |
نام
ڈاک خانہ |
تھانہ |
تحصیل |
ضلع |
||
موضع |
کوچہ |
محلہ |
||||||||
ناصر
نذیر بٹ |
نذیر
احمد بٹ |
وکالت |
مسلم/اسلام |
اچھرہ |
کرنال
پورہ |
شاہ کمال |
مسلم
ٹاؤن |
وحدت
کالونی |
ماڈل
ٹاؤن |
لاہور |
IN THE
Samba Bank Limited |
Vs. |
ABC |
Presented by |
Mr. Nasir Nazir
Butt, Advocate |
At |
|
on |
|
1. Plaint
in hand is duly verified on oath and signed.
2. Total
value of the Suit is Rs. 1,027,894.08.
3. Plaint
is duly stamped and bears court fee of Rs. 15,000/-.
4. Subject
matter of the Suit falls seems to be within the pecuniary as well as
territorial jurisdiction of this Court.
5. The
Suit prima facie appears to be filed within/beyond the period of limitation.
6. The
Suit is duly indexed and page marked.
7. Court
fee of Rs. 2/- has been affixed on POA/Miscellaneous
application/applications.
8. One
copy/copies of the Plaint, statement of accounts and other relevant documents
are annexed with the Plaint with one set of copies for each defendant
along-with one extra set.
9. ___________________________________________________________.
REGISTRAR
BC-1,
HON’BLE JUDGE
BC-___, LAHORE
Calculations – ABC.
Agreement executed on dated ______________________, Page No. ___
Expiry on dated ________________, Page No. _____
Buy Back Price Rs. _______________, Page No. _____
Renewal on dated ____________, Page No. ________, for 12 months
Buy Back Price Rs. _______________, Page No. _____
Default on dated ____________, Page No. __________
Principal Rs. ___________, Page No. _________
Mark up Rs. ___________, Page No. _________
Total Rs. ______________
BEFORE
THE JUDGE BANKING COURT–III, LAHORE
Execution under section 19(2) of the Financial
Institutions’ (Recovery of Finances’) Ordinance, 2001
Execution No. 03-E-2021
of 2021
in
Banking Suit No. 226/2020
Samba Bank Limited - Versus – ABC
Respectfully Sheweth:---
The
Decree-holder(s) wish(es) to execute the Decree, only under section 19(2) of
FIO, by issuance of warrant of arrest to recover the decree amount with cost of
funds and cost of suit from judgment-debtor, without invoking the provisions of
the Code of Civil Procedure, 1908 and/or any other law for the time being in
force, without curtailing liberty of decree-holder to offer any appropriate
mode of execution. Finance is unsecured.
Section 19(2) FIO is read as follows:---
(2) The
decree of the Banking Court shall be executed in accordance with the provisions
of the Code of Civil
Procedure, 1908 (Act V of 1908) or any other law for the time being in
force or in such manner as the Banking Court may at the request
of the decree-holder consider appropriate, including recovery as
arrears of land revenue.
Explanation.- The
term assets or properties in sub-section (2) shall include any assets and
properties acquired benami in the name of an ostensible owner.
Manner (procedure) requested
by the decree-holder for the execution of decree
Manner requested by the decree-holder, under section
19(2) of the FIO, is that upon the request of the decree-holder,
judgment-debtor may be arrested and detained in prison till the satisfaction of
decree, in letter and spirit. Warrants of arrest may be issued under section
19(2) of the FIO requested by the decree-holder.
The only condition to accede the manner requested by
the decree-holder is that such requested manners must qualify to be “appropriate”,
within the meaning of section 19(2) of the FIO. Court has left no option except
to accede requested manner subject to “appropriate”, in the prime interest of
law and fair play.
Decree-holder has not opted CPC and/or any other law for the time being in force for the execution of decree.
MCB Bank Limited/Decree-holder
Through
[1] Under section 9(2) of the Ordinance read with section 3 of the Electronic Transactions’ Ordinance, 2002.
[2] Section 9(1) of the Ordinance.
[3] Only this amount is subject to income tax, if any.
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