1998CLC743 (PLP)

(iii) Jagdish v. Saligram (1945 ILR (24) Patna 391). (iv) Government of Rajasthan and another v. Sangram Singh and others. (AIR 1962 Rajasthan 43). which were cited by the learned counsel for the plaintiff.

17. In the present case, another question which requires consideration is if the time, prescribed for making an application seeking leave to defend having already expired, would stand revived upon promulgation of section 22(1) of the 1997‑Act. As already observed, the right to plead limitation which accrues upon lapse of statutory period, is in every sense a right even though it arises under a statute which is procedural. The principle has quite emphatically been laid down in Maxwell v. Murphy (1957) 90 CLR 261 which was cited with approval by Privy Council in Yew Bon Te‑v. Kenderaan Bas Mara reported in 1983 PSC 1200 in the following words: "Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceeding may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a case of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the abridgment might again be classed as procedural But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute of whilst he still has time to do so, very different considerations could rise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provided a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights. " As to what is a vested right, the learned counsel has referred to following passage from the case of Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599): "

29. What is a vested right? According to the Oxford English Dictionary, 'vested' means 'clothed, robed, dressed especially in ecclesiastical vestments vested rights essentially differ from rights which are contingent that is, completely created vested interests may perhaps be defined as rights based not upon contract but upon custom'. A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross‑examine (not to re‑cross‑examine) a witness is a vested right, although the occasions for exercising it arises only if the witness says or has said something unfavourable and often after his examination‑in‑chief is over. The occasion to cross‑examine may not arise or may not be exercised‑‑‑but the right is not to be denied."

18. Section 22(1) of Act XV of 1997, therefore, in my view does not render the provisions of Limitation Act inapplicable to the cases where the time to apply for leave to defend had already expired.

19. The result, therefore, is that the plaintiff cannot be deprived from claiming benefit under Order XXXVII, Rule 2, C.P.C. read with section 7(2) of the 1979‑Ordinance by stretching the interpretation of section 22(1) of Act XV of 1997.

20. Mr. Sajid Zahid has further argued that the 1979‑Ordinance, the Banking Tribunals Ordinance, 1984, Ordinance, XXV of 1997 and Act XV of 1997 are all remedial legislation promulgated with an object to regulate recover of Bank dues within minimum possible time. The learned counsel has referred to sections 4 and 7 of 1979‑Ordinance, section 6(2) and section 12 of the Banking Tribunals Ordinance, 1984 and section 7(6) and (7), section 8(1), section 9(3) and section 10 of Act XV of 1997. For the sake of reference the provisions r referred by the learned counsel are reproduced hereunder: A. Sections 4 and 7 of the 1979‑Ordinance: "

4. Securing and repayment of loan due on the commencing day.‑‑‑(1) This section applies only to loans outstanding on the commencing day. (2) A loan or part thereof outstanding on the commencing day shall, unless secured or repaid earlier, be secured and repaid as provided in this section notwithstanding the fact the period of limitation within which a suit for the recovery of the loan or part thereof could have been or may be filed, expired or expires on or after the first day of January, 1974. (3) Where, in the opinion of a banking company, a loan was, or has become or is discovered to be, unsecured or insufficiently secured, the borrower shall provide sufficient security therefore, within (ninth) days from the date of the notice served by the banking company on the borrower in any of the undermentioned modes, namely, by being‑‑‑ (a) given or tendered to him, or (b) sent by registered post to his last known address on the record of the banking company, or (c) affixed on a conspicuous part of his last address known to the banking company, or (d) published in a newspaper. (4) Where a loan is not, or has not become, sufficiently secured under subsection (3), the banking company may apply to the Special Court for attachment of so much 'of the property of the borrower as is equal in value, with reasonable margin, according to banking practice to the outstanding amount of the loan. (5) Where the loan is, or has become, sufficiently secured under subsection (3), the outstanding amount shall, unless a different schedule of repayment is drawn by the bank, be repaid in accordance with the schedule of repayment agreed to at the time of sanction of the loan. (6) The decision of the bank in fixing the schedule of repayment under subsection (5) shall not be questioned in any Court. "Section

7. Procedure of Special Court.‑‑‑(1) Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment. (2) In the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908). Sections 6(2) and section 12 of the Banking Tribunals Ordinance, 1984: "Section 6(2).‑‑‑On a plaint being filed with the Banking Tribunal in accordance with the provisions of subsection (1), the Banking Tribunal shall issue notice requiring the defendant to show cause, within ten days of the service of such notice, as to why decree as prayed for in the plaint should not be passed against him. Section 12: Limitation Act 1908 (Act IX of 1908) not to annh .‑‑‑The provisions of the Limitation Act. 1908 (Act IX of 1908), shall not apply to any suit, application or other proceedings filed by a banking company under this Ordinance. " Section 7 (6) and (7), section 8(1), section 9(3) and section 10 of Act XV of 1997: "Section 7(6).‑‑‑All proceedings, including proceedings following the filing of an Arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance. 1979 (XIX of 1979), Banking Companies (Recovery of Loans, Advances, Credits or Finances) Ordinance, 1997 (XXV of t 1997), or any Banking Tribunal under the Banking Tribunals Ordinance, 1984 (LVIII of 1984) or any other Court including a High Court shall stand transferred to or deemed to be transferred to the Banking Court having jurisdiction. On transfer of proceedings under this subsection, a Banking Court shall require the attendance of the parties through notice issued in accordance with the procedure for service of summons or notice laid down in subsection (3) of section 9 Section 7(7).‑‑‑In respect of proceedings transferred to a Banking Court under subsection (6) the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and rehear any witness and may act on the evidence already recorded or produced before the Court or Tribunal from which the proceedings were transferred. Section 8(1).‑‑‑Subject to subsection (2), notwithstanding anything contained in the Limitation Act, 1908 (Act No.IX of 1908) or any other law, a banking company may, within three years from the date of coming into force of this Act, file a suit for the recovery of any amount written off, released or adjusted under any agreement, contract, or consent, including compromises or withdrawal of any suit or legal proceedings or adjustment of decree between a banking company and a borrower or customer on any day on or after the first day of January, 1990 and before coming into force of this Act, if it can establish that the amount was written off, released or adjusted for political reasons or considerations other than bona fide business considerations. Section 9(3).‑‑‑On a plaint being presented to the Banking Court a summons in Form No.4 in Appendix ' B' to the Code of Civil Procedure (Act V of 1908), or in such other form as may, from time to time be prescribed by rules, shall be served on the defendant through the bailiff or process‑server of the Banking Court by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspaper and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for, purposes of this Act. In case of service of the summons through the bailiff or process‑server a copy of the plaint shall be attached therewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the Office of the Banking Court without making a written application. The Court shall ensure that the publication of summons shall take place in newspapers with a wide circulation within its territorial limits. Section

10. Leave to defend. ‑‑‑Subject to section 11, the Banking Court shall, upon an application made by a defendant within twenty‑one days, give leave to defend the suit, if a serious and bona fide dispute is raised thereby Provided that where services has been validly effected only through publication in the newspaper the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof. " By reference to the above‑quoted provisions, the learned counsel for the plaintiff has urged that the object sought to be achieved by section 22(1) is that section 5 alone of the Limitation Act, has been made inapplicable to proceedings transferred under Act XV of 1997. Elaborating his submission, the learned counsel submits that the provisions of section 5 of the Limitation Act were made applicable to applications for leave to appear and defend through Ordinance X of 1980. Consequently, the present application under section 5 of the Limitation Act had been filed by the defendants, The law‑makers have now chosen to omit reference to Order XXXVII, C.P.C., as was contained in section 7(2) of the 1979‑Ordinance and prescribed complete procedure for proceeding with cases filed or transferred for trial under Act XV of 1997. I am afraid that the contention of Mr. Sajid Zahid is too far‑fetched and will require reading the provisions contained in section 22(1) of Act XV of 1997 contrary to its plain meaning. Besides, such interpretation shall also lead to absurdity and non‑suiting the defendants through unreasonable interpretation. The application preferred under section 5 of the Limitation Act, therefore, is maintainable and has to be considered on its own merits.

21. As to the questions raised in the application and the affidavits filed in support thereof, the learned counsel has rightly given up the same since all such contentions were raised by the learned counsel for the defendant in Suit No.621 of 1986 and have elaborately been discussed and decided in the order reported in 1993 MLD 54 Emirates Bank Limited v. Dost Muhammad Cotton Mills. It may be noted that Mr. Sajid Zahid and Mr. Mansoorul Arfin had both appeared in the cited matter as adversaries.

22. Coming to the contention of Mr. Arfin that by virtue of section 9(8) of Ordinance XXV of 1997, the applications for grant of leave filed in the present matter have to be treated as replies, and therefore, the limitation of 10 days prescribed for filing application for grant of leave has become redundant, it may be observed that upon expiry of the period prescribed by Article 159 of the Limitation Act, the plaintiff had become entitled to grant of decree and such entitlement cannot be denied by extending interpretation of section 9(8) of Ordinance XXV of 1997. The treatment of leave application as reply even otherwise, does not have the effect of extending time for submission of leave application. It is pertinent to note that the reply submitted under subsections (2) and (3) of section 9 of Ordinance XXV of 1997 has also to be examined at the touchstone of a serious and bona fide dispute having been raised. The treatment of leave application as reply, in my view, was merely for the purpose of bringing the matter in conformity with the phraseology used in Ordinance XXV of 1997 and did not have any further effect. It may further be noted that even under Act XV of 1997 (the latest legislation) the defendant upon service of summons is required to apply for leave to defend the proceedings.

23. Coming to merits‑of application, it may be observed that the summons of the present proceedings were published in daily Morning News, dated 3rd October, 1987. Such publication was effected simultaneously on the issuance of summons through bailiff and through the registered post in accordance with Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980. Service by publication is valid and effective. Such service is not circumscribed by the limitation applicable to substituted service under Order V, Rule 20, C.P.C. It is not open to a defendant to contend that they do not read the newspaper in which the summons was published. Acceptance of such plea shall enable the defendant(s) to defeat the purpose of 1979‑Ordinance and/or Act XV of 1997. I may refer here with advantage to a passage from judgment in United Bank Limited v. M/s. Kashmir Corner (1988 CLC 1068): .it is not provided by law that the summons should be published in a newspaper a language which is known to the defendant. If this would have been the object and intent of law then for those persons who are illiterate, publication can never be treated as a proper service. The object of publication is to see that the filing of the suit is properly and duly notified and widely circulated. It is not with the intention that the defendant should per chance or with certainty may read the newspaper, and, thus, come to know about the suit. " The defendants, in the circumstances, were duly served with summons through publication on 30‑10‑1987 and were required to file application for leave to defend within 10 days therefrom. The defendants except defendant No.3 had filed application for grant of leave on 12‑11‑1987 which was beyond the time permitted to them in law. It is an established position of law that each and every day's delay has to be explained. The defendants have failed to offer any explanation whatsoever for the delay. Moreover, the defendants have failed to even assert that they were not aware of the proceedings before 2‑11‑1987 when summons were received by their common agent Muhammad Yaqoob. The said common agent, in his affidavit, has not even stated as to which cases had to be attended by him on that day in Court or as to how and from whom he came to know about institution of the present proceedings. As regards defendant No.3, who has filed application for grant of leave on 25‑11‑1997, it appears that he had gained knowledge about the proceedings much earlier and according to his own admission on 2‑11‑1987, when he had engaged the learned counsel to represent defendants Nos. 10 and 11 in his capacity as Director thereof. The summons did contain the name of defendant No.3 having been sued in his personal name and it is inconceivable that the defendant No.3 remained unaware of the proceedings against him.

24. In the circumstances the application under section 5 of the Limitation Act is without substance and is dismissed. This also disposes of the Office Reference, dated 3‑4‑1993 and item listed at Serial No.3.

25. As regards deceased defendant No.5 since no application has been filed seeking permission to defend the proceedings, the suit is decreed against him as prayed subject to the condition that the decree shall be executable to the extent of the estate inherited by his legal representatives.

26. Before parting, I must place on record my appreciation for the valuable assistance rendered by both the learned counsel who have appeared in this matter. A.A./E‑6/K Suit decreed