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not restrict either of the parties to take up the matter to the court or
ordinary tribunals having jurisdiction under the relevant provisions of
the Code of Civil Procedure. It was held that the jurisdiction could be
stretched to either place at "K" or "L", however, the sanctity of
agreement had restricted both the parties to avail remedy at place "L"
by virtue of its clause. Accordingly, the court returned the plaint to
the plaintiff to file it before the competent court at L.
Enforcement expenses:
We have found clause 4 (b) of the finance agreement to be relevant in
this regard that entitled the bank to recover from the customer all
costs and expenses including legal and court costs incurred by the
bank in effecting recovery from the customer.
In this regard, in accordance with section 3 of the Ordinance of 2001
if a customer defaults in fulfillment of his obligations he shall, in
addition to the payment of cost of funds to the financial institution,
incur all civil and criminal liabilities under the contract or any other
law for the time being in force.
Section 35 of the CPC is the law for the time being in force relating to
the determination and payment of costs. It provides that the costs of
and incident to all suits shall be in the discretion of the court, and the
court shall have full power to determine by whom or out of what
property and to what extent such costs are to be paid. Costs of the
suit would include costs incurred on payment of court fees, notices
and any other cost as is allowed by the court to be recovered.
Fees paid to a legal counsel may be an incidental cost as stipulated in
section 35. The Lahore High Court Rules and Orders (the Rules)
have elaborated on the limit, manner and formal requirements vis-vis costs paid to the legal counsel. Part B of Chapter 16 (Volume 1) of
the Rules prescribe a maximum limit of Rs.15,000/- that can be
granted by a court inferior to the High Court as costs for fees of the
counsel provided the counsel submits a certificate in prescribed form
signed by him in the court certifying the amount of fees actually paid
by his client.
As regards the expenses incurred in the sale of the mortgaged
property, reference is made to section 19 (5) of the Ordinance of 2001
dealing with the execution of the decrees and sale of assets of the
judgment debtor in execution of the decrees. Section 19 (5) by
reference makes section 15 (9) of the Ordinance of 2001 mutatis
mutandis applicable to the sale of assets of the judgment debtor in
execution of the decree under section 19 of the Ordinance of 2001.