2012 PLP 1326 (CLC)

SYED IFTIKHAR HUSSAIN SHAH, J.-- The present appeal has been preferred against the judgment and decree dated 24-4-2008 passed by the learned Judge Banking Court-II, Lahore whereby the suit instituted by the plaintiff-Bank against respondents Nos.1, 3 and 4 was decreed but defendant No.5 was deleted from the array of the defendants.

2. Messrs Shahabad Textiles (Pvt.) Limited Company acting through its directors Syed Shahid Hussain, defendant No.4 and Adnan Ali Khan Sherwani, defendant No.5 applied for grant of finance facilities to the appellant, which were allowed vide sanction advice dated 18-12-2004. They availed the facilities which were subsequently, renewed and enhanced vide sanction advice dated 26-10-2005. The facilities of finance were guaranteed by the respondents-defendants through the mortgage of property owned by Messrs Tallat Shahid, respondent No.3, wife of respondent No.4 situated at Green Acres Housing Scheme, Raiwind Road, Lahore. The respondents executed all the relevant documents equitable mortgage, demand promissory notes, finance agreements and other security documents in favour of the bank but respondents failed to discharge their financial obligations and the appellant was constrained to file civil suit against them.

3. Learned trial Court after going through the record, hearing the parties decreed the suit for the recovery of Rs.3,21,76,961.60 in favour of the appellant against respondents. Nos.3 and 4 jointly and severely but vide impugned judgment and decree deleted respondent No.5 from the array of respondents-defendants. Hence the present appeal. Along with the appeal an application under section 5 of the Limitation Act, 1908 was filed for the condonation of delay in filing the appeal.

4. The learned counsel for the appellant has contended that the delay in filing of the appeal was not intentional. It was delayed due to the reason beyond the control of the appellant so it is liable to be condoned under section 5 of the Limitation Act, 1908.

5. On the other hand, learned counsel for the respondents has contended that the application under section 5 of the Limitation Act was not competent as the limitation is to be governed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Learned counsel has relied upon in Industrial Development Bank of Pakistan v. Rehmania Textile Mills (Pvt.), Ltd. (2006 CLD 81), Protein and Fats International (Pvt.) Limited v. Capital Assets Leasing Corporation Limited (2005 CLD 857), Sikandar Hayat v. Agricultural Development Bank of Pakistan (2005 CLD 870), Abdul Rasheed and another, v. Bank of Punjab (2004 CLD 800) and Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286).

6. We have heard the learned counsel for the parties and have also gone through the record minutely.

7. The appellant has submitted the certified copy of the judgment dated 24-4-2008 whereon the endorsement by copying agency reveals that the appellant made an application for getting the certified copy of the judgment on 13-5-2008, the copy was furnished on 23-5-2008 and the present appeal has been preferred on 5-6-2008 under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the appeal against the judgment and decree was required to be filed within 30 days of the judgment but in the instant case the appeal has been preferred after 32 days of the judgment and decree. Even the appellant itself is not certain that whether the appeal is well in time or not as is apparent from the contents of the application made under section 5 of the limitation wherein it is mentioned in paragraph 2 that delay in filing of titled appeal before this Hon'ble Court is not intentional deliberate and wilful but beyond the control of the petitioner due to unavoidable circumstances. In paragraph 3 of application it has been mentioned that if the delay, if any, is not condoned the petitioner will suffer an irreparable loss and injury.

8. It is not the case of the appellant that the appellant had no knowledge of the passing of the impugned judgment and decree. In fact the appellant had the knowledge of the impugned judgment and decree the day it was passed. The appellant could prefer an appeal against the aforesaid judgment and decree within 30 days. The Limitation for the cases under Financial Institutions (Recovery of Finances) Ordinance, 2001 is prescribed in the said Act and by virtue of section 29(2) of the Limitation Act, 1908 the provisions of section 5 ibid are not attracted in this case. Appeal is hopelessly barred by limitation.

9. Resultantly, the delay in the filing of appeal cannot be condoned. Therefore, the appeal is hereby dismissed being barred by limitation. S.A.K./A-223/L Appeal dismissed.