--Since a power of attorney is available on record and is not disputed, board resolution is not required, hence there is no merit in this objection as well--Execution of documents is not denied-

 PLJ 2020 Lahore (Note) 145

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 2(c), 9(3)--Suit for recovery--Finance facility--Work capital finance--Finance agreement--Execution of security documents--Default in payment--Non-denial of execution of documents--Jurisdiction--First objection with respect to jurisdiction of this Court, learned counsel argued that since principal amount due this Court lacks jurisdiction--However there is no merit, in this objection because Plaintiff is claiming Rs. 45,954,430/- plus markup making total amount recoverable as Rs. 50,090,830/-, hence this Court has jurisdiction--Second objection is with regard to authority of person who has signed plaint--A power of attorney has been filed which is not disputed by Defendants--Since a power of attorney is available on record and is not disputed, board resolution is not required, hence there is no merit in this objection as well--Execution of documents is not denied--Suit was decreed. [Para 6] A

Mr. Husnain Ali Ramzan, Advocate for Plaintiff.

Ms. Mehvish Tahira, Advocate for Defendant No. 1.

Date of hearing: 23.9.2014.

 PLJ 2020 Lahore (Note) 145
Present: Mrs. Ayesha A. Malik, J.
ATLAS BANK LTD--Plaintiff
versus
MUHAMMAD USMAN etc.--Defendants
C.O.S. No. 15 of 2009, heard on 23.09.2014.

Judgment

This is a suit for recovery of Rs. 50,090,830/- under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO 2001) along with costs and costs of funds through sale of mortgaged and hypothetical properties and personal guarantees.

2. Notices were issued to the Defendants and Preliminary Leave Application (PLA) No. 38-B/2009 was filed on behalf of the Defendant No. 1. The Defendant No. 1 is dealing with the business of electronics and satellite equipment including their procurement and installation. The Defendant No. 2 is the joint account holder of the Account No. 42450227440128 who received/withdrew partial funds for and on behalf of the Defendant No. 1. The Defendant No. 1 is a customer as defined in Section 2(c) of the FIO 2001 and the beneficiary of the entire finances availed, withdrawn and utilized. The Defendant No. 2 is a proforma Defendant and no relief has been sought against the same. The suit was instituted through Mohsin Rafique as General Attorney of the Plaintiff Bank.

3. The case of the Plaintiff is that the Defendant No. 1 availed, the finance facility of Term Work Capital Finance of Rs. 45,960,000/- from the Plaintiff bank and executed a Finance Agreement on 30.1.2008 in favour of the Plaintiff bank. The Defendant No. 1 also executed security documents in favour of the Plaintiff bank including mortgage through deposit of title documents and to secure repayment of the outstanding liabilities as detailed in para 7 of the plaint. Personal guarantees were also executed by the Defendants in favour of the Plaintiff bank. The Plaintiff disbursed and transferred the amount of Rs. 42,990,000/- to KASB Bank by Pay Order No. 132449 dated 31.1.2008. The disbursement in favour of the Defendant No. 1 has been admitted in the PLA filed on behalf of the Defendant No. 1. The requirements of Section 9(3) of the FIO 2001 have been fulfilled. The principal amount availed/utilized by the Defendant No. 1 as on 28.11.2008 is Rs. 45,954,430 and the total outstanding amount as on 28.11.2008 is Rs. 50,090,830/-.

4. PLA No. 38-B/2009 has been filed on behalf of the Defendant No. 1. The first objection raised by the learned counsel for the Defendant No. 1 is that this Court has no jurisdiction as the suit amount is Rs. 45,954,430/- being the principal amount, hence this suit should have been filed before the Banking Court. The second objection raised is that the person who has instituted the suit is not duly authorized and no board resolution has been filed in this regard. Learned counsel further argued that the Defendant is a self-made man who tried his best to repay all amounts to the Plaintiff bank, however due to the financial crises the Defendant was unable to make any payment. She further stated that the statement of accounts do not show the amounts paid or disbursed, hence leave may be granted.

5. I have heard the learned counsel for the parties and have gone through the record available on the file.

6. So far as the first objection with respect to the jurisdiction of this Court, learned counsel argued that since the principal amount due is Rs. 45,954,430/-, this Court lacks jurisdiction. However there is no merit, in this objection because the Plaintiff is claiming
Rs. 45,954,430/- plus markup making the total amount recoverable as Rs. 50,090,830/-, hence this Court has jurisdiction. The second objection is with regard to the authority of the person who has signed the plaint. A power of attorney has been filed which is not disputed by the Defendants. Since a power of attorney is available on the record and is not disputed, board resolution is not required, hence there is no merit in this objection as well. The execution of the documents is not denied. The execution of the security documents is specifically admitted in the PLA. The disbursement in favour of KASB Bank vide Pay Order No. 132449 dated 31.1.2008 in the amount of
Rs. 42,990,000/- is also admitted. Therefore no substantive question of law and fact has been raised.

7. Therefore, the suit of the Plaintiff is decreed in favour of the Plaintiff and against the Defendant No. 1 under Section 9 of the FIO 2001 jointly as well as severally in the sum of Rs. 50,090,830/- together with the cost of funds calculated from the date of default till realization of the decreetal amount. The Plaintiff shall also be entitled to the costs of the suit.

8. The Defendant No. 1 shall have 30 days to pay the decreetal amount to the Decree Holder where-after this decree shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice shall be issued to the Judgment Debtors in this regard. Particulars of the mortgaged hypothecated assets of the Judgment Debtors shall be filed by the Decree Holder for consideration of this Court on expiry of the afore-noted period of 30 days.

(Y.A.)  Suit decreed