PLJ 2010 Karachi 143 (DB)
Present: Gulzar
Ahmed and Irfan Saadat
Khan, JJ .
KARIM DAD KHUSHK--Appellant
versus
UNITED BANK LIMITED--Respondent
1st Appeal No. 40 of 2009, decided on
29.1.2010.
Civil Procedure Code, 1908 (V of 1908)--
----O. III, Rr.1, 2 & O. XXIX,
R.I--Suit by company--Signing of plaint by authorized agent of company--Copy of
power of attorney not filed along with plaint, but filed
subsequently--Validity--If plaint was not competently filed, then such anomaly
could be rectified subsequently--Suit would not become incompetent on account
of subsequent filing of such copy. [P.
146] A
2005 CLD 854 rel.
2008 CLD 576; 2009 CLD 856 and 2005 CLD
1473 distinguished.
Mr. Waqar Ahmed Siyal and Tauseef Ahmed,
Advocates for Appellant.
Mr. Khalid Mehmood Siddiqui, Advocate for
Respondent.
Dates of hearing: 15, 18 and 22.1.2010.
Judgment
Gulzar Ahmed, J.--By this appeal appellant has
challenged the judgment and decree dated 15-9-2009 passed by learned Judge,
Banking Court IV, Karachi,
by which the suit for recovery filed by the respondent was decreed.
Learned counsel for the appellant has
contended that the appellant had applied to the respondent for grant of Car
Loan, which was sanctioned and Purchase Order was issued by the respondent in favour of the appellant, which required making of down
payment of Rs. 122368. He contended that as the
appellant was not in a position to make such down payment, the appellant asked
one Mumtaz Wassan to obtain
cancellation of purchase order. He contended that the said Mumtaz
Wassan instead of getting the purchase order
cancelled, took the delivery of the car and this was done with collusion of
bank staff. He further contended that statement of account filed with the
plaint is not in accordance with Section 9(2) of Financial Institutions
(Recovery of Finances) Ordinance, 2001 (the Ordinance) and relied upon the case
of Klb-e-Hyder and Company (Pvt.) Ltd. v. National
Bank of Pakistan 2008 CLD 576 and Faysal Bank Ltd. v.
Genertech Pakistan Ltd. 2009 CLD 856. He further
contended that Purchase Order was conditional as delivery was to be effected on
the instructions of customer and that the bank has not filed any document to
show that car was delivered to the appellant. In this respect he relied upon
the case of Messrs Prime Road Ways and 2 others v. United Bank Ltd. and 2
others 2005 CLD 1473. He contended that the appellant had made complaints to
the bank as well as the police officials but nothing was done and then the
appellant approached the Banking Ombudsman, who also filed the appellant's
complaint. He finally contended that the suit was not competently filed as the
power of attorney was filed subsequently.
On the other hand, Mr. Khalid
Mehmood Siddiqui, counsel
for the respondent has contended that Mumtaz Wassan was not an employee of the respondent but rather a
friend and roommate of appellant and that the appellant had availed the
facility of car Loan and was liable to make payment against such loan and that
the statement of account was in accordance with the Ordinance and so also the
suit was competently filed. He further contended that appellant has filed some
additional documents with the appeal, which he had not filed with the Banking Court and
that the appellant has even suppressed the fact of making of complaint to the
Banking Ombudsman and passing of order by it from the Banking Court. He further contended that
appellant himself is an Audit Officer of Grade-17 in the Accountant General
Office, Sukkur and that it is not possible that he
did not know the consequences of non-repayment of the advanced amount to him.
We have considered the submission made by
learned counsel and have gone through the record.
It appears that appellant had applied to
the respondent for grant of Car Loan, which was sanctioned to him and Purchase
Order was also delivered to the appellant. As the appellant failed to pay the instalments, the respondent filed a suit for recovery with
statement of account. The appellant filed an application for leave to defend
the suit to which replication was filed by respondent. The application for
leave to defend the suit was dismissed and suit was decreed by the impugned
judgment and decree.
In the application for leave to defend the
suit, the appellant has admitted the fact of availing the facility of Car Loan
from the respondent and has not disputed the claim of respondent but has taken
the plea that due to hardship and financial problems he had approached one Mumtaz Wassan, working with the
respondent as Sale Agent in Car Financing Division, Karachi, who availed the
facility of loan for the appellant and cancellation of Purchase Order and that
the appellant paid Rs.6,000 to the Agent of respondent towards cancellation fee
of Purchase Order and also signed on a paper for further action. The appellant
has further taken a stand that in September, 2006 he learnt that Purchase Order
has not been cancelled and respondent has delivered the car to someone else,
upon which the appellant filed a complaint dated 15-9-2006 with the respondent
against the Sales officer with allegation that fraud had been played by the
sales officer and action be taken against said sales officer and the car be
recovered from him. The appellant has further taken the stand that the has
filed complaint dated 3-5-2007, 28-5-2007 before DSP, Bin Qassim
Town Karachi and SHO, Steel Town, Karachi against the Sales officer and further
complaint dated 10-5-2009 was also filed with the Chief of CPLC, Karachi. The
appellant has further taken the stand that as no action was taken against the
Sales Officer he filed complaint dated 11-6-2007 with the President of
respondent. The appellant has further taken the stand that respondent has
committed illegality and fraud by delivering the car to its Sales Officer and
that he neither made down payment nor deposited the instalment.
The respondent in its replication has
specifically denied that Mumtaz Wassan
was working with the respondent as Sales Agent. The respondent further denied
making of complaints by appellant to the respondent or to the Police.
From above narration, it is apparent that
appellant has not disputed the fact of availing Car Loan from the respondent
and that he has received the Purchase Order. On receipt of Purchase Order,
appellant claims that he has not deposited the down payment nor has deposited
the instalment and has rather allowed Mumtaz Wassan to have the
delivery order changed to his own name and after this appellant remained quiet
and did not approach the respondent to ascertain as to whether the delivery
order has been changed to the name of Mumtaz Wassan or not and as to what is the position regarding
payment of dues. It is when the respondent contacted the appellant to pay the
dues that appellant alleges to have sent the complaint regarding fraud having
been committed by Mumtaz Wassan
labelling him as sales agent of the respondent. In
the letter dated 15-9-2006, addressed to the Zonal Manager of the respondent,
filed as annexure `F' with the appeal, the appellant has stated that "I
hereby further clarify that Mr. Mumtaz Wassan remained my class fellow, roommate at school and
friend also, so on that basis I have committed a blunder of keeping blind faith
on him which resulted in a fraud." Thus as per appellant's own assertion
in his above letter he has made some transaction with Mumtaz
Wassan being his class fellow, roommate and friend
and without taking any action against Mumtaz Wassan, he has started blaming the respondent to the extent
of alleging that its official had committed fraud with him. Appellant has also
approached the Banking Ombudsman, who through its order dated 13-12-2007
informed the appellant that appellant has some mutual understanding with Mumtaz Wassan and bank has no
involvement in the transaction and through further letter dated 15.7.2008
informed the appellant that as he has admitted having applied for loan and
signing of bank documents, there is no fault and wrong doing by the bank and
the case was closed.
On the point that the statement of account
filed with the plaint is not in accordance with Section 9(2) of the Ordinance,
the learned counsel for the appellant has contended that it does not contain
the account number. The appellant does not appear to have taken this objection
in his application for leave to defend the suit. We have, however, examine the
statement of account filed with the appeal as annexure `D' and find that it
specifically contains the number of account namely "Auto Loan No. AUT-00049542". The statement of account further carries
the certificate as is required by sub-section (2) of Section 9 of the
Ordinance.
As regards the plea of the appellant that
suit was not competently filed, the plaint itself shows that it is signed by Safeer Ullah Abbasi
and Rizwanul Haq Siddiqui, who are Attorneys of the respondent. Merely for
the reasons that copies of power of attorney were filed subsequently will not
make the suit incompetent as it is now established law that even if the plaint
is not competently filed, such anomaly can be rectified subsequently. Reference
in this regard is made to the case of Habib Bank Ltd.
v. Messr ESS EMM ESS Corporation Pakistan Ltd. and 5
others 2005 CLD 854.
In view of such facts and circumstances
available on the record and the law, there appears to be no basis for appellant
to dispute his liability to the respondent. The judgments cited by the
appellant counsel have no application to the case in hand as the facts and
circumstances of those cases are different from the present one.
On 22nd January 2010, after hearing the
counsel for the parties, through our short order we have dismissed this appeal.
Above are the reasons for the same.
(R.A.) Appeal
dismissed.
