PLJ 2004 Lahore 1839 (DB)

Present: mian saqib nisar and tanvir bashir ansari, JJ.

Ch. FEROZ DIN and anothers-Appellants

versus

HOUSE BUILDING FINANCE CORPORATION having its REGIONAL OFFICE AT CHAUBURJI, LAHORE and another-Respondent

R.F.A. No. 303 of 2004, heard on 13.9.2004

(i) Financial Institutions (Recovery of Finances) Ordinance, 2001--
—-S. 22-Suit for rendition of accounts was filed against respondent-
Rejected due to deficiency in Court fee-Preferred appeal-Discharge of
entire liability-Cuase of action-Effects of-Liability-Banking Court had
not applied judicial mind to facts and circumstances-Nature of suit for
rendition of account-Such suit was a requested to Court to ascertain true
account and fix liability-Held: Appellants are only require and liable to
pay that amount which bank is entitled-According to terms of agreement
between parties and truly reflected in statement of account-Banking
Court has lost sight of law that on suit for rendition of account fixed
Court fee is payable-There is no question of deficiency resulting into
rejection of plaint-Appeal allowed. [Pp. 1840 & 1841] A & C

(ii) Practice and Procedure-

—-Court should have considered contents of plaint in terms of agreements
and only then should have decided, whether suit filed by appellants is
competent and valid or has been instituted with an oblique motive-
Having failed to do so. [P. 1840] B
Mr. Rashdin Nawaz Kasuri, Advocate for Appellants.
Mr. Dil Afroz Subhani, Advocate for Respondents.
Date of hearing: 13.9.2004.

judgment

Mian Saqib Nisar, J.--The appellants brought a suit for the rendition of accounts against the Respondent No. 1; admitting in the suit of having availed the finance, the execution of the agreement and its liability to pay. But with the grievance that the respondent is not furnishing the true statement of account, enabling the appellants to discharge their entire liability.

2. Respondent brought the leave application and resisted the suit on
number of legal and factual grounds, however, the learned Banking Court
without adverting to any controversy raised before it, simply by relying upon
the contents of the plaint, held that it does not disclose cause of action, as the
appellants have admitted their liability; besides, the appellants have not
provided the deficiency in the Court fee; rejected the plaint through the
impugned judgment and decree dated 9.4.2004. Hence this appeal.

2A. Learned counsel for the appellants contends that learned Banking Court was oblivious of the law about the nature and the purpose of the suit for the rendition of accounts. The very object is that if a defendant is accounting party, as admittedly the bank is, the Court must ascertain the true accounts enabling the plaintiff to discharge its liability. It is further submitted that the learned Banking Court has also fallen in serious misconception, about the deficiency in the Court fee because under the law, fixed Court fee is required to be paid on such a suit and no ad valorem fee is payable.

3. We have heard learned counsel for the parties. The argument of learned counsel for the respondent, that the statement of account had been appended along with the leave application and therefore, considering the same as correct, the learned Banking Court, has rightly dismissed the suit, as the amount in the statement of account is the one, which is recoverable from the appellants.

4. Confronted with the above, learned counsel for the appellants states that the amounts mentioned in the statement of account, are not in accordance with the terms of the agreement admittedly executed between the parties. We have considered the pleas of both the sides and find that the learned Banking Court has not applied its judicial mind to the facts and circumstances of the case, particularly the purposes and the nature of the suit for rendition of account. Obviously, such suit is a request to the Court to A ascertain the true account and fix the liability, so that if a person is obliged, must pay the determined amount to its creditor. It may thus, be held that the ppellants are only required and liable to pay that much amount, which the respondent/bank is entitled, according to the terms of the agreement between the parties and so truly reflected in the statement of the account. If it is otherwise, there is no obligation of the appellants to pay the amount only for the reason that it is mentioned in the account statement. Exactly, this was the complaint of the appellants before the Court below, which has not been attended to in accordance with law. Thus in the circumstances of the case, the Court should have considered the contents of the plaint in terms of the agreements, and only then should have decided, whether the suit filed by the appellants is competent and valid or has been instituted with an oblique motive. Having failed to do so, the impugned judgment and decree suffers from vice.

Besides, as mentioned earlier, learned Banking Court has lost sight of the law. that on the suit for the rendition of account, fixed Court fee is payable. Thus, if it was so affixed, there is no question of any deficiency, resulting into the rejection of the plaint. Therefore, by allowing this appeal, the judgment and decree of the learned Banking Court is set aside with the direction to the learned Banking Court to re-consider the case on the above touch-stone and decide it afresh.

(M.A.S.) Case remanded.