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Ist Civil Appeal No. D-22 of 2012, decided on 27th January, 2015.

----Ss. 9, 3(2) & 3(3)--- Suit for recovery--- Procedure of Banking Court---Calculation of cost of funds---Application for leave to defend was dismissed and suit was decreed in favour of plaintiff bank---Contention of defendant was inter alia that the statement of accounts of the plaintiff bank was not in accordance with the Bankers" Books Evidence Act, 1891 as per the mandatory provisions of Ss. 9(2) & 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Held, that requirements of Ss. 9(2) & 9(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 required that a Financial Institution should append a statement of account duly certified under the Bankers" Books Evidence Act, 1891 and should also state the amount of finance availed and repaid---No repayment having been made in the present case, therefore no such entry had been shown in the statement of account and the mark-up had only been calculated up till the period of expiry of the facility and not thereafter---Banking Court had rightly ordered that the cost of funds be granted from date of default till realization in accordance with Ss. 3(2) & 3(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Cost of funds was to be calculated only on the defaulted amount at the rates applicable from time to time specified by the State Bank of Pakistan, from the date of commission of default till realization---No illegality therefore existed in impugned order---Appeal was dismissed, in circumstances. IDBP v. Pakistan Belting (Pvt.) Ltd. 2006 CLD 808 and Muhammad Yousif v. ADBP and others 2002 CLD 1270 ref. Trycot Synthetic Fibre Company through Proprietor and another v. Habib Bank Limited 2012 CLD 1670 rel. Ashok Kumar K. Jamba for Appellant. Rasool Bux I. Siyal for Respondent-Bank. Zahid Mehmood Mughal, Standing Counsel. Date of hearing: 21st January, 2015.

This first appeal under section 22-A of the Financial Institutions Ordinance, 2001 has been preferred by Ghulam Jaffer Phulpoto against judgment dated 30-10-2012 and decree dated 1-11-2012 passed by the Banking Court-I, Sukkur in Suit No. 46/2011, Messrs Allied Bank Limited v. Ghulam Jaffer Phulpoto and another. 2. The facts pertaining to this appeal are that the respondent No.1 Messrs Allied Bank Limited, disbursed a financial facility of Rs.485,560 to the present appellant vide sanction advice dated 8-12-2000, with date of expiry as 30-6-2001. The security against this finance was an equitable mortgage of immovable property of respondent No.2 Mehboob Ali. The suit under section 9 of the Financial Institutions Ordinance, 2001 was filed on 27-10-2011 for recovery of Rs.485,422 being principal amount, Rs. 143,000 being mark-up for the period 18-12-2000 to 3-6-2001 and thereafter cost of funds was prayed for. The summonses were duly issued to the defendants in the said banking suit whereafter the present appellant, being defendant No.1, filed the application for leave to defend under section 10 of the Financial Institutions Ordinance, 2001 but the same was dismissed vide order dated 28-9-2011. Thereafter the learned Banking Court-I at Sukkur, proceeded to pronounce the impugned judgment and consequent decree. 3. Mr. Ashok Kumar K. Jamba learned counsel for appellant has mainly argued that the suit filed by the respondent/bank was not maintainable as it did not comply with the mandatory provisions of section 9 subsections (2) and (3) of the F.I.O., 2001. He further contended that the purported statement of account filed by the Financial Institution did not comply with section-2 subsection (8) of the Bankers" Books Evidence Act, 1891. The learned Counsel further contended that he had raised triable issues in his leave to defend application and evidence should have been led on those points but the banking Court disregarded his contentions and proceeded to pass the judgment and decree which are violative of the provisions of law in this regard. He has placed his reliance upon 2006 CLD 808 (IDBP v. Pakistan Belting (Pvt.) Ltd.) and 2002 CLD 1270 (Muhammad Yousif v. ADBP and others). 4. Mr. Rasool Bux I. Siyal learned counsel appeared on behalf of the respondent/bank and argued that the judgment and decree is inconsonance with the various provisions of law and suit was filed well within time as the limitation for filing a suit on the basis of mortgage is 12 years. He has further argued that since the appellant had not made any re-payment, therefore, the statement of account does not reflect any credit entry and in the circumstances his claim for the principal amount and mark-up for the agreed period has rightly been allowed. He further submitted that the certificate as required under section 2(8) of the Bankers" Books Evidence Act, 1891 is duly appended with the statement of account which was filed along with the plaint. He has placed his reliance on 2009 CLD 171 (Messrs S. Malik Traders and another v. Saudi Pak Leasing Company Ltd.). 5. Mr. Zahid Mehmood Mughal learned Standing counsel has supported the arguments advanced by Mr. Rasool Bux I. Siyal, Counsel for respondent/Bank. 6. We have heard the arguments, perused the record and have gone through the cited law. Firstly, we have gone through the judgment of the trial Court and the statement of account. The requirements of section 9(2) and (3) of F.I.O., 2001 requires that the Financial Institutions should append a statement of account duly certified under the Bankers" Books Evidence Act, 1891 and should also state the amount of Finance availed and re-paid. Since no re-payment has been made therefore, no such entry has been shown in the statement of account. The mark-up has only been calculated uptill the period of expiry of the facility and not thereafter. As far as the cost of funds is concerned the learned banking Court has rightly ordered that cost of funds be granted from the date of default till realization, as the same has been provided in section 3 subsections (2) and (3) of the Financial Institutions Ordinance, 2001, which provides that the customer is liable to pay the cost of the funds of the Financial Institutions, from the date of his default till realization of the funds, as certified by the State Bank of Pakistan from time to time. We are fortified in this regard by judgment reported as Trycot Synthetic Fibre Company through Proprietor and another v. Habib Bank Limited 2012 CLD 1670 (Sindh), which provides that the cost of the funds is to be calculated only on the defaulted amount at the rates applicable from time to time by the State Bank of Pakistan, from the date of commission of default till realization of the amount. In view of the above discussion, the appeal is hereby dismissed along with the listed applications. KMZ/G-7/Sindh Appeal dismissed.

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