IN THE HIGH COURT OF SINDH AT KARACHI

1ST APPEAL NO. 67 / 2014

Taufique Rehman Qureshi & another............. Appellants

Versus

JS Bank limited & another ............ Respondents

COUNTER AFFIDAVIT

I, Khaleeque Ahmed son of Manzoor Ahmed, Muslim, adult,

resident of J.S. Bank Ltd, Shaheen Commercial Complex, Dr.

Ziauddin Ahmed Road, Karachi, do hereby state on oath as under:-

1. That I am an officer and duly constituted Sub. General Attorney

of the respondent No.1 and dealing with the legal matters, as

such fully conversant with the facts of the case and able to

depose the same before this Honourable Court.

2. That I have gone through the contents of the Memo of Appeal

and its supporting affidavit. I specifically deny all the adverse

assertions, averments, allegations made therein and submit

preliminary legal objection as under:-

PRELIMINARY LEGAL OBJECTION

That in suit no.46/2013 the impugned judgment was passed on

23.04.2014 and decree was passed on 13.05.2013. the appellant

applied for grant of certified copies of the impugned judgment and

decree on 23.05.2014 after expiry of 29 days from the date of the

impugned judgment and 9 days from the date of the impugned

decree. Copy was made ready and delivered on 29.05.2014. the

appellant should have to file this appeal within 21 days from

29.05.2014 i.e. upto 19.06.2014. He has filed

and as produced under section 22 of the Financial Institutions

(Recovery of Finances) Ordinance 2001 against the said judgment

and decree the appellant have to prefer appeal before this Hon’ble

Court within 3 days from the date of such judgment and decree

but the appellant has filed this appealThat the application is time

barred and not maintainable, hence it should be dismissed. That

in Suit No.46/2013 filed by the Defendant / Plaintiff the Judgment

was passed on 23.04.2014 and Decree was passed on 13.05.2014

and the Appellants have filed this present appeal on 16.07.2014

after lapse of 64 days from the date of Decree. That under ordinary

law the period of filing ordinary first appeal is ninety days, but in

matters covered by the Financial Institutions (Recovery of

Finances) Ordinance, 2001, which is a special law, the prescribed

period is thirty days for filing of an appeal against judgment and

decree of the banking court. It is therefore submitted that this

appeal is time barred and hence not maintainable.

WITHOUT PREJUDICE to the above legal objection, parawise reply

of the Grounds of the appeal under consideration is as under:-

I) That the contents of Ground No. 1 of the appeal as stated

are specifically denied. That the application for leave to

defend was dismissed vide order dated 29.10.2013 and both

 the parties were directed to file their respective

breakups/statement of accounts. In compliance thereto,

both the parties filed their respective breakups which are

annexed with the Memo of Appeal as annexures A/5 and

A/6. That the honourable banking court after considering all

the relevant and material evidence available on record

passed the Judgment and Decree on the breakup of

accounts which was duly certified as per the Bankers’ Books

Evidence Act, 1891. It is submitted that in the breakup

submitted by the appellants they have claimed to have paid

Rs. 1,997,915.41 which is identical to the breakup

submitted by the Respondents. It is therefore submitted that

appellants are misleading the honourable court.

II) That the contents of Ground No. 2 of the appeal are

specifically denied. It is submitted that the appellants in

their leave to defend application accepted availing of finance

and execution of documents in respect thereof. That as per

the requirement of section 10(8) in the leave to defend

application no substantial question of law or fact was raised

in respect of which evidence needs to be recorded, as such,

leave to defend application was rightly dismissed.

III) That the contents of Ground No. 3 of the memo of appeal are

specifically denied. It is submitted that the appellants were

given full opportunity to defend their case by filing leave to

defend application. It is submitted that the Respondent bank

 did not charged any markup in ignorance of the circulars of

the State Bank of Pakistan. It is submitted that the

Respondent bank charged markup in accordance with the

finance agreement.

IV) That the contents of Ground No. 4 of the memo of appeal are

specifically denied. It is submitted that appellants not only

submitted inaccurate and incomplete statement of accounts

but also never offered to pay defendant any amount and the

appellants are requested to prove it. That the statement of

accounts submitted by the appellants does not state the full

amount of principal finance availed in 2008, nor does it state

the outstanding principal amount. Furthermore, it also does

not mention how much markup was accrued on the

principal amount and the balance outstanding on markup

amount. It is submitted that either the counsel for the

appellant do not know how to prepare statement of accounts

or is trying to misled this honourable court. It is submitted

that at the time of judgment and decree dated 23.04.2014 an

amount of Rs.2,869,633/- was outstanding on account of

finance availed by the appellants. It is submitted that the

court awarded the respondent the outstanding amount of

finance of Rs.2,869,633/- together with cost of funds @10%

w.e.f. 01.10.2012 to 30.06.2014 amounting to Rs.5,02,185/-

and costs in the case amounting to Rs.35,373/-. That

currently the appellants outstanding liability until

 23.04.2014 is Rs.3,407,191/- which is increasing on daily

basis.

V) That the contents of Ground No. 5 of the appeal are

specifically denied. It is submitted that the respondent bank

charged markup which is duly calculated as per the terms of

the finance agreement and the appellants are requested to

pay the full decretal amount alongwith other charges which

the defendants are incurring on daily basis due to Plaintiff’s

filing of this present appeal and late payment. The

appellants have not pointed out any unreasonableness in the

statement of account submitted by the defendant bank.

VI) That the contents of Ground No. 6 of the appeal are

specifically denied. It is submitted that respondent bank has

no concern with appellants business or circumstances and it

is a completely separate entity. That the appellants have to

pay the outstanding decree amount plus any other amount

which will be incurred for late payment.

VII) That the contents of Ground No. 7 of the appeal are

specifically denied. That no ambiguity in calculation of the

markup as per the terms of the finance agreement has been

pointed out by the appellants in leave to defend application

and in this appeal. It is submitted that I cannot comment on

whether the appellants are respectable citizens. However it is

submitted that appellants are not law abiding citizens as

 they failed to pay the outstanding amount of defendant bank

on time despite various demands made by them. It is further

submitted that the appellants have never ever approached

defendant bank to settle their outstanding dues and

appellant are requested to prove it.

VIII) That the contents of Ground No. 8 of the appeal are

specifically denied. It is submitted the appellants does not

want to settle the issue by amicable settlement and it is very

much obvious from their failure to settle their outstanding

running finance amount duly obtained after executing

various security documents. That appellants have only filed

this present appeal to linger on the outstanding payment

due to defendant bank. It is further submitted that this

appeal has been filed after passing of 64 days of the Decree

and it is time barred, hence not maintainable, as such, it

should be dismissed.