BEFORE THE HONORABLE ISLAMABAD HIGH COURT, ISLAMABAD

RFA No. Of 2020

1. Ahmed Engineering & Steel Mills (SMC-PVT) Ltd.; Gadoon Amazai,

District Swabi (KPK, through its Managing Director namely Noor ul
Hassan S/o Hazrat Gul.
2. Noor ul Hassan S/o Hazrat Gul R/o House No. 428, Street No. 35,
Sector I-8/2, Islamabad.
…….Appellants
Versus

3. Soneri Bank Ltd.; Blue Area Branch, Islamabad through its authorized
attorney.
…….Respondent

REGULAR FIRST APPEAL U/S 22 OF THE “FINANCIAL INSTITUTIONS (RECOVERY OF

FINANCES) ORDINANCE 2001”, AGAINST IMPUGNED JUDGMENT AND DECREE DATED
09-03-2020, PASSED BY LEARNED JUDGE BANKING COURT, RAWALPINDI.

May it please your lordship:

PRAYER IN APPEAL:

1. That the Appellant most respectfully pray that this Honourable Court
may graciously set-aside the impugned Judgment and Decree dated
09-03-2020, passed by Honorable Judge Banking Court, Rawalpindi
and the Respondent Bank may graciously be restrained to initiate
Execution Proceedings and return original Property Documents along
with NOC regarding property of Appellant and/or in alternate, this
Honorable Court may please remand the case to the Learned Banking
Court, Rawalpindi to decide the same on merits while granting petition
for leave to appear and defend the suit in favor of the Appellant
particularly regarding determination of date of default and
applicability of cost of funds, if any.
2. Brief facts leading to this Appeal are that initially the Respondent Bank
filed recovery suit for Rs. 34,399,727/- and Learned Banking Court, ex-
parte decreed the same for Rs. 31,668,913/- and the said ex-parte
Judgment and Decree dated 05-03-2018 was set aside vide respective
order dated 18-05-2019 subject to deposit of decreetal amount of Rs.
31,668,913/- which was duly complied in its letter and spirit and
Appellant also filed Leave Application within stipulated time as
directed by Learned Banking Court, Rawalpindi.

3. That the cited amount of Rs. 31,668,913/- was deposited and is still
laying in the account of Learned Banking Court Rawalpindi, since 24-
05-2019 and in spite of deposit of alleged outstanding amount which
has already been realized, the Learned Banking Court, passed the
impugned Judgment and Decree which is liable to be set aside by this
Honourable Court.

(Copy of impugned Judgment and Decree is annexed as Annex-A).

(Copy of ex-parte Judgment and Decree is annexed as Annex-B).
(Copy of Order dated 18-05-2019 is annexed as Annex-C).

4. That the Learning Banking Court, Rawalpindi failed to appreciate the

pleading of the plaint, grounds of the leave application and reply
thereto and the impugned judgment and decree has been passed in
hasty manner and the Appellant has been deprived from his basic right
of fair trial and the impugned judgment and decree could not be
treated as speaking judgment, hence, liable to be set aside.

5. That the Respondent Bank is not legally entitled to harass the

Appellant and even to initiate execution proceedings against Property
of Appellant, in any manner whatsoever. That the act and conduct of
the Respondent Bank is extremely illegal and based on malafide
intentions and the Judgment and Decree dated 09-03-2020 is void ab-
initio and has not been validly passed by the Learned Banking Court
and is not executable as per law.
6. That the Appellant being aggrieved from Judgment and Decree dated
09-03-2020, prefer this Appeal before this Honourable Court, inter
alia, on the following grounds amongst others:

GROUNDS:

1. That the impugned judgment and decree dated 09-03-2020 is against

the facts and circumstances of the case available on record and the
Learned Lower Court failed to observe and scrutinize even its own
record particularly deposit of entire outstanding alleged amount of Rs.
31,668,913/-, which amounts to crystal example of miscarriage of
justice rather an aid to injustice, hence, the judgment and decree is
liable to be set aside.

2. That the impugned judgment does not qualify even minimum criteria
of a “Judgment” as it does not conform to the requirements of Section
2 (9) read with Order XX Rule 5 of the CPC as the word Judgment is no
where defined in the Banking Law and Code of Civil Procedure
definitely would apply, hence, the impugned judgment and decree as
rendered could not be considered a valid judgment and decree as the
same is deficit of reasoning and judicial mind and is liable to be set
aside.

3. That the judgment and decree dated 09-03-2020 passed by the

Honorable Banking Court is the result of non reading and misreading
of documents and/or evidence available on record before the
Honorable Banking Court, Rawalpindi.

4. Admittedly, nothing was outstanding against the Appellant as the

Appellant has already complied his obligation and deposited the
alleged amount even determined by the Learned Banking Court itself,
hence, passing of impugned Judgment and Decree is out of question
as the same would promote and encourage mark-up and/or cost of
funds and also amounts to enter the transaction into the realm of
interest based financing which is not permissible, hence, after deposit
of amount, there was no occasion at all for passing of impugned
 judgment and decree but the true aspects of the matter were ignored
while passing judgment and decree, hence, the same merits dismissal.

5. Even otherwise the Judgment and Decree is void and without lawful
application of judicial duty because the Respondent Bank failed to
comply with the mandatory provisions of Section 9 of the Financial
Institution (Recovery of Finances) Ordinance 2001 and the Learned
Banking Court also failed to pursue its own earlier order and record as
well, hence, the impugned judgment and decree has been passed in
violation of mandatory provisions and is liable to be set aside.

6. Despite the fact that the recovery suit filed by the Respondent Bank
was not maintainable but the Appellant performed his part of
obligation and paid the entire amount in good faith but the Learned
Banking Court failed to appreciate and could not consider pleading of
the parties.

7. Although the Appellant is genuinely entitled for the refund of certain

amount duly described in the leave application and after deposit of
referred amount, the Respondent Bank was not entitled even for a
single penny rather to refund the excessive amount but the Learned
Banking Court has decreed the suit against already deposited amount
while erroneously observing in Para No. 6 of the impugned judgment
which reads as under:

….”Accordingly, the suit is decreed in favour of the Plaintiff/bank

against the Defendant to the extent of Principal outstanding
amount of Rs. 31,668,913/- along with cost of suit and cost of
funds from the date of default till realization of the whole
decreetal amount:”,…..

Hence, this Honourable Court may appreciate after deposit of said

amount of Rs. 31,668,913/- nothing was outstanding and realizable
against the Appellant at the time of passing of impugned judgment
and decree, hence, allowing cost of funds in a suit which was liable to
be dismissed, is illegal and liable to be set aside.
8. That this Honourable Court may appreciate that the impugned
judgment and decree has been passed without due application of
judicious mind and without assigning justifiable reasons. Moreover,
the learned lower court also failed to consider its earlier order
although was obliged by law not to contradict its own orders and in
the present situation to continue the execution proceedings would not
meet the standard of openness, hence, execution proceedings, if any,
regarding property of the Applicant are liable to be set aside.

9. That there was no lawful justification and occasion for passing of

judgment and decree and in such a situation allowing and encouraging
any cost of fund is also against the Islamic mode of financing which is
prohibited by law, hence, the impugned judgment and decree is not
sustainable and is liable to be set aside.

10. That no proper statement of account was annexed with the plaint and
the suit of the Respondent Bank was not properly presented in
accordance with the law. It is well settled principle of law that one has
to stand on his own legs which confirms that even in absence of leave
application, the Honorable Banking Court was obliged to scrutinize the
contents of plaint and documents annexed herewith minutely for the
fair dispensation of justice but the impugned judgment and decree has
been passed while ignoring the real facts and without touching merits
of the case.

11. That the Learned Banking Court has also ignored and could not
considered the leave application filed by the Appellant in its true
aspects and dismissed the same in a causal manner.

12. That the Respondent Bank is bent upon to initiate execution

proceedings followed by impugned Judgment and Decree passed by
the Learned Banking Court, which is not even executable in the eyes of
law.
13. Moreover, the original title documents of the mortgaged property are
held as security/collateral with the bank, value of which is more than
the amount decreed by the Learned Banking Court.

14. That the impugned judgment and decree dated 09-03-2020 may kindly
be set aside and/or in alternate the case may kindly be remanded back
to the Learned Lower Court to decide the suit on merits.

PRAYER:
It is therefore, respectfully prayed that the instant Appeal of the Appellant may
kindly be accepted and the impugned Judgment and Decree dated 09-03-2020,
may kindly be set aside, to meet the ends of justice.
It is further prayed that this Honorable Court may be pleased to direct the
Respondent Bank to handover original property title documents along with NOC to
the Appellant, in the interest of justice.
It is further prayed that in alternate the case of the Appellant may kindly be
remanded back to the learned Banking Court, Rawalpindi to decide the same on
merits in accordance with law specifically regarding determination of date of
default and applicability of cost of funds, if any, even after deposit of outstanding
amount.
Any other relief which this Honourable Court deem just and proper and not prayed
for, may also be granted to the Appellant.
Rawalpindi:
Dated: 03-04-2020
Appellant

Through

Abdul Hameed Baloch

Advocate High Court
CC No. 21932
CERTIFICATE:

It is certified that as per information provided by the Appellant, this is the First
Appeal moved for and on behalf of the Appellant.

It is also certified that no Appeal is pending or decided on same subject by the

Honourable Supreme Court of Pakistan.

Counsel
 BEFORE THE HONORABLE LAHORE HIGH COURT, RAWALPINDI BENCH

RFA No. Of 2020

Ahmed Engineering & Steel Mills Vs. Soneri Bank Ltd.;

(SMC-Pvt) Ltd.;

(REGULAR FIRST APPEAL U/S 22 OF THE “FINANCIAL INSTITUTIONS (RECOVERY

OF FINANCES) ORDINANCE 2001”, AGAINST IMPUGNED JUDGMENT AND DECREE
DATED 09-03-2020, PASSED BY LEARNED JUDGE BANKING COURT, RAWALPINDI ).

AFFIDAVIT

I, Noor ul Hassan S/o Hazrat Gul R/o House No. 428, Street No. 35, Sector I-
8/2, Islamabad, do hereby solemnly affirm and declare that the contents of
the accompanying Appeal are true and correct to the best of my knowledge
and belief and nothing has been concealed or misstated therein which may
please be read as integral part of this affidavit for the sake of brevity.

Deponent.______________

Verification:
Verified on oath on this______day of April 2020, that the contents of the
abovementioned affidavit are true to the best of my knowledge and belief
and that nothing material has been concealed or misstated therein.

Deponent.______________