WRITTEN STATEMENT ON BEHALF OF DEFENDANT FOR LEAVE TO DEFEND THE SUIT UNDER SECTION 9 AND 10 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE (ORDINANCE) 2001.
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| WRITTEN STATEMENT ON BEHALF OF DEFENDANT FOR LEAVE TO DEFEND THE SUIT UNDER SECTION 9 AND 10 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE (ORDINANCE) 2001. |
IN THE
Suit No. _______________/20
In re:
Name , S/o, D/o Father Name ,
resident of _____________________.
VERSUS
Name , S/o, D/o Father Name ,
resident of _____________________.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT FOR LEAVE TO DEFEND THE SUIT UNDER SECTION 9 AND 10 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE (ORDINANCE) 2001.
Respectfully Sheweth:-
A.
That the petitioner/defendant submits the present petition for leave to
defend the suit / written statement pursuant to an order of this Honourable Court.
B.
That all the alleged allegations in the suit are baseless, untrue, and
incorrect. The plaintiff bank in order to make illegal gains an illegal benefit, unlawfully and without any cause has filed the present suit which has
caused damage to the defendant’s reputation. The consequent damage and losses are
recoverable from the plaintiff bank.
C.
That the plant deserves rejection under Order VII Rule 11 CPC for
non-disclosure of the cause of action against the petitioner/defendant. No amount
whatsoever is due and payable by the defendant to the plaintiff bank to vest it
with a triable cause of action under section 9 of the Financial Institutions
(Recovery of Finance Ordinance).
D.
That the petitioner/defendant is a customs clearing agent due to
sanctioned imposed by the international community on the export of
E.
That the plaintiff bank promised the defendant that it will collect
the capital amount from the defendant in easy installments, but at last the plaintiff
/ respondent with malafide intention filed the instant suit against the petitioner
/ defendant.
F.
That claim of the plaintiff bank is illegal, void and unreasonable, and
unenforceable. Even otherwise under the Islamic System of Banking, the imposition
of liquidated damages, interest or penalty by any name or form is not
permissible and cannot be charged.
G.
In view of submissions made above and grounds, inter alia, stated
hereinafter, petitioner/defendant seeks unconditional leave to defend the
suit:
G R O U N D S
(a)
That the plaintiff bank has no cause of action or locus standi to file the instant suit against the defendant and the plaint does not disclose a triable
cause of action against the defendant, hence the paint deserves to be rejected.
(b)
That the suit has not been filed signed and verified by a competent person duly authorized and empowered to act in accordance with provisions of
law and the plant require to be rejected on this ground. That even otherwise
since no sanction of the Honourable Company, Judge has been obtained under
section 333(I) of the Companies Ordinance, 1984, the present suit has not been
legally and properly instituted and hence is liable to be rejected on this
ground also. The present suit cannot be entertained by this Honourable Court in
its present form as it is in grave violation of the mandatory provision of
sub-section (3) of section 9 of the Ordinance, which clearly states that “The
plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically state:
(i)
The amount of finance availed by the defendant from the financial
institution
(ii)
The amounts paid by the defendant to the financial institution and the
dates of payments and
(iii)
The amount of finance and other amounts relating to the finance payable
by the defendant to the financial institution up to the date of institution of
the suit.
It is pertinent to
mention here that nowhere in the paint, is it mentioned, the actual / exact amount availed that is the actual amount disbursed by the plaintiff bank under
the finance agreement (s) by the defendant, details of the payments made along with the dates of payment to the plaintiff bank that is payments made along with its
dates in lieu of the disbursed amount(s). In the present suit by the plaintiff the bank is thus in grave violation of the mandatory provision of the law and hence
is liable to be dismissed on this ground alone.
(c)
That this Honourable Court has no jurisdiction to entertain the instant a suit under reply as per sub-section 2 of Section 9 of the Ordinance, which
clearly states “The plaint shall be supported by a statement of account which in
case of a financial institution shall be duly certified under the Bankers Book
evidence, 1891 (XVII of 1991) and other relevant documents relating to the
grant of finance”. A bare reading of the above-referred section and as per the
settled law and banking practices, every amount/sum advanced or paid to a
customer or sum expended/incurred for and behalf of a customer by a banking
company is entered as a debit in the books of the bank and the money received
from or on behalf of the customer is entered in these books as customers credit
to arrive at a credit or debit balance. On the basis of entries in these books,
a statement of account truly, faithfully, and duly reflecting the entries, is
prepared by a bank for each account for all practical purposes. These accounts
containing copies of entries in the books of a bank, when certified as per
section 2(8) of the Bankers’ Books Evidence Act 1891 (Act) attain the status of
prima facie evidence of the existence of such entries in the banker's books and
become admissible in evidence. As such Section 9 (2) of the Ordinance, 2001
makes it mandatory for a banking company such as the plaintiff bank to support
its plaint in a suit against the customer such as the defendant by a statement
of account duly certified under the act along with all other documents relating
to the grant of finance. It is submitted that neither a duly maintained
statement of accounts nor any of the relevant documents relating to grant of
finance have been relied upon or placed on record by the plaintiff bank in
direct violation of the mandatory provision of section 9(2) of the Ordinance.
It is a settled principle of law by the superior courts that a court cannot
exercise and entertain its discretion, which is in direct violation of any mandatory
provision of a statute, as such the instant suit merits dismissal nor the plaint is liable to be rejected under the provisions of Order VII, Rule 11 CPC.
(d)
The examination of statements of accounts annexed and relied upon the
plaintiff bank cannot become the basis of plaintiff bank’s suit and a decree for
being:
(i)
Uncertified and unverified as per the Ordinance and section 2(8) and
section 4 of the Act and the law, as such inadmissible and also for being
certificates of account only;
(ii)
Un-maintained in accordance with provisions of law, instructions of the
SBP, Prudential Regulations, banking practices, and the accepted accounting
principles;
(iii)
False, dishonest, erroneous, illegal, improper, and unauthorized. The
plaintiff bank debited unauthorized, excessive, and illegal amounts of interest,
markup charges, expenses, commissions, fees, duties, taxes, and costs, etc.
(iv)
Unspecific as to particulars of debit entries made in Banker’s ledgers
and books and for not specifying the method/rates of calculation of amounts contained
therein.
(e)
Without prejudice to the grounds raised hereinabove it is submitted that
as per settled law, the plaintiff bank is not entitled to charge any markup in
the absence of a valid, lawful and enforceable agreement of financing. Further,
markup can only be charged for the period of an agreement. Since there is no
agreement for financing on record, therefore, neither any markup is chargeable
nor the same is payable by the defendant to the plaintiff bank. As such the
whole suit amount needs to be recalculated and the amount of markup paid and
adjusted by the plaintiff bank is liable to be reduced from the suit amount.
(f)
After having a reasonable opportunity to fully scrutinize the claim of
the plaintiff bank, the defendant shall submit further grounds and figures and as
such it reserves the right to make amendments in the additions of this
petition.
(g)
The foregoing acts, grounds, and reasons demonstrate the existence of genuine,
serious, bonafide, plausible, and triable issues justify the grant of unconditional
leave to defend the suit, if this Honourable Court is pleased not to reject the
petition or dismiss the suit at this stage.
ON MERITS
1.
It is admitted to the extent that the plaintiff is a banking company. The remaining part is not correctly mentioned hence denied.
2.
Incorrect and denied. The plaintiff bank offered the credit card
facilities and orally told the plaintiff that only reasonable interest will be
charge.
3.
That the contents of para No. 3 are incorrect, hence denied. That the defendant is a customs clearing agent.
4.
That the contents of para No. 4 are incorrect, hence denied. The
defendant already informed the bank about his financial crises.
5.
That the contents of para No. 5 are incorrect, hence denied. The defendant
paid 90% amount to the plaintiff but the plaintiff did not disclose the record
of the payment of the defendant.
6.
That the contents of para No. 6 are incorrect, hence denied. The plaintiff can only be charge principle amount but not illegal and unlawful amount, which is mentioned in para No. 5.
7.
That the contents of para No. 7 are incorrect, hence denied. Detailed
reply has already been given in above paras.
8.
That the contents of para No. 8 are incorrect, hence denied. The plaintiff has no cause of action against the defendant.
9.
That the contents of para No. 9 are incorrect, hence denied.
10.
Legal.
11.
Legal.
Under the above-said circumstances, it is,
therefore, most respectfully prayed that this Honourable Court may be pleased
to:
(i) reject the plaint with
costs; or
(ii) dismiss the suit with
costs; or
(iii) grant unconditional leave
to defend the suit.
Petitioner/Defendant
through
Advocate
VERIFICATION
Verified on oath at Lahore on this 5th day of May 20 that
the contents of the above-stated petition are true and correct to the best of my
knowledge, information, and belief, and nothing have been concealed therein.
Petitioner/Defendant
IN THE
Suit No. ______________/20
In re:
VERSUS
WRITTEN STATEMENT ON BEHALF OF DEFENDANT FOR LEAVE TO DEFEND THE SUIT UNDER SECTION 9 AND 10 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE (ORDINANCE) 2001.
AFFIDAVIT OF
I
the above-named deponent do hereby solemnly affirm and declare as under:
That the
contents of accompanying written statement/leave to defend are true and
correct to the best of my knowledge and belief and nothing has been concealed
therein.
Deponent
VERIFICATION
Verified on oath at Lahore this 8th day
of May 20, that the contents of the
above affidavit are true and correct to the best of my knowledge and belief and
nothing has been concealed therein.
Deponent
 2001.){kind=link}
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