P L D 1970 Lahore 486 (PLP)

5. After the evidence led by the parties was recorded this case has been put up before me for its disposal. After hearing the learned counsel for the parties, I propose to dispose of the issues framed in this case as under:‑ Issue No 1.

‑Whether the respondent did not take a loan of Rs. 40,000 from the Punjab Commerce Bank Limited, when he executed mortgage deed dated 12‑4‑1945? In this connection, the respondent, on the 20th of January 1964, has unequivocally admitted the execution of the mortgage deed dated the 12th of April 1945 for Rs. 40,000, when he was confronted with its certified copy. The respondent, appearing as his own witness (R. W. 6), has attempted in a way to riggle out of this admission and deposed that the mortgaged amount was in fact received by Lala Hans Raj, that he had signed the mortgage deed at his instance and that, if at all, he should be held responsible for the balance amount due under the mortgage. There is no other evidence to support him in this respect, and this self‑serving statement made by the respondent cannot be accepted. This issue is accordingly found against the respondent. Issue No. 2.

‑Whether the petition is time‑barred? It is the most important issue in this case. The deed of mortgage (Exh. P. 26) was executed by the respondent in favour of the petitioner on the 12th of April 1945. This was a simple mortgage for the recovery of Rs. 40,000 with compound interest thereof at the rate of Rs. 6 % per annum with half‑yearly rests. The amount was repayable on demand. As such the limitation in the suit for the recovery under the mortgage began to run against the petitioner immediately on its execution on the 12th of April 1945.

6. Exh. P. 27 is the copy of the order dated the 13th of May 1953 passed in C. O. No. 8/1952 for the winding up of the company and appointing the State Bank of Pakistan, Lahore, as the Official Liquidator. This application was filed on the 18th of January 1952. The Banking Companies Ordinance LVII of 1962, came into force on the 7th of June 1962 for the first time. Subsection (1) of section 73 of this Ordinance lays down that:‑ "Notwithstanding anything to the contrary contained in the Limitation Act, 1908 (IX of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, on the period commencing from the date of the presentation of the petition for the winding up of the banking company shall be excluded." In another case, Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others (P L D 1965 Lah. 628), in interpreting this section I had held that:‑ "The special provisions of section 73 of the Banking Companies Ordinance, 1962 have a retrospective application in a qualified sense only. That section is applicable to a Banking Company which is being wound up or in respect of which a petition for winding up has been presented before the commencement of the Ordinance. The new provisions for the computation of the period of limitation introduced in section 73 will be applicable to the cases in which the period of limitation prescribed under the earlier law had not run out on the date of the Ordinance. The provisions of section 73 of the Ordinance cannot be invoked so as to resuscitate and revitalize a cause of action which had met its natural death by lapse of time and was barred under the law of limitation prevailing before the introduction of the Ordinance, on 7th June 1962." Under the ordinary law, under Article 132 of the Limitation Act, at best the period of limitation for a suit for the recovery of the mortgage amount is twelve years from the date the amount became payable and had fallen due. In the instant case, as mentioned above the time had started to run from the 12th of April 1945 and the limitation had expired by the 12th of April' 1957, much before this Ordinance had come into force. In this view of the matter, on the strength of the above authority, I have no other option but to hold that section 61/63 of the Banking Companies Ordinance, 1962, was inapplicable to this claim in dispute which was already barred by time. "Issue No. 3.--‑Whether the order of the Liquidation Judge winding up the Punjab Commerce Bank and the appointment of the State Bank of Pakistan as its Official Liquidator was without jurisdiction ?" After my decision on issue No. 2, no other issue properly arises in this case. Even otherwise, I find no force in this issue. Exh. P. 27 is the certified copy of the order dated the 13th of May 1952, passed by the Company Judge for the winding up of this company. This shows that the application was not opposed by the company and the respondent had agreed to this order for the winding up and the State Bank of Pakistan, Lahore, was appointed to act as the Official Liquidator for the company. At the time, the Pakistan (Administration of Evacuee Property) Ordinance of 1949 (as amended) was in force. Section 34 of Ordinance 15 of 1949 was a bar to the jurisdiction of civil or revenue Courts and other authorities in certain matters. Sub section (1) of section 34 lays down: "Save as expressly provided in this Ordinance, no Civil or Revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application, or other proceedings as to whether any person is or is not intending evacuee or whether any property is or is not evacuee property, or what right or interest, if any, an evacuee has in any such property." As I interpret this and the other relevant provisions in that Ordinance, there was no bar to the jurisdiction of this Court as Company Judge to entertain the application for the winding up of an evacuee company. Under the law the institution of a suit or an application against an evacuee was not debarred. The only bar contained in subsection (2) of section 34 was that whenever any question such as is referred to in clause (a) of subsection (1) of this section arises in any civil or revenue Court or before any other authority the Court or authority shall state the question with relevant particulars and remit it to the Custodian, and the decision of the Custodian on the question stated shall be conclusive. In this case, such a question, as is referred to in clause (a) of subsection (1) of section 34, did not arise and was not raised in the proceedings and the jurisdiction of the civil Court or the authority to entertain the dispute was not excluded. Quite apart from this, I find that it is not open to the respondent at this stage, long after the winding up order has been made, to raise any such objection against it. For the foregoing reasons I see no force in this issue which is found against the respondent. "Issue No. 4.‑--Whether the Punjab Commerce Bank was not a Banking Company?"

7. Clause (b) of section 5 of the Banking Companies Ordinance, 1962, defines `banking' to mean the acceptance for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise. In clause (c) of this section `banking company' has been defined to mean any company which transacts the business of banking in Pakistan. Relying on this definition the learned counsel has argued that a company which has long ceased to do any banking business cannot be deemed to be a `banking company' within the meaning of this Ordinance. Section 61 of this Ordinance lays down:‑ "The High Court shall, save as otherwise expressly provided in section 62, have exclusive jurisdiction to entertain and decide any claim made by or against a banking company which is being wound up (including claims by or against any of its branches in Pakistan) or any application made under section 153 of the Companies Act, 1913 (VII of 1913), by or in respect of a banking company or any question of properties or any other question whatsoever, whether of law or fact, which may relate to or arise in the Bourse of the winding up of a banking company, whether such claim is made before or after the date of the order for the winding up of the banking company or before or after the commencement of this Ordinance." These provisions under the Ordinance leave no room for doubt that even in the case a company, which has ceased to do any banking business and is being wound up, this Court has got exclusive jurisdiction to entertain and decide any claim made by or against it. This issue has, therefore, no force and is found against the respondent. "Issue No. 5.‑--Relief." There is no doubt that on the 12th of April 1945, the respondent had incurred a loan of Rs. 40,000 from the Punjab Commerce Bank Limited, Lahore, on the security of his immovable property. This loan was repayable with compound interest at the rate of 6 Y0 per annum with half‑yearly rests. There is no direct evidence to prove repayment of this loan by the respondent to the Bank. Nevertheless, there is sufficient material on this record to conclude that in the meantime, the Bank had already received some payments made by or on behalf of the respondent in this account. Exh. P. 12 is a copy of the order dated the 17th of March 1947, sent by the Manager of the Bank to the respondent (produced by the petitioner) saying that a sum of Rs. 36,428‑b‑6 was due to the Bank as on the 31st of December 1946. Exh. P. 19 is another copy of the letter dated the 12th of July 1947, sent by the Manager of the Bank to the petitioner (produced by the petitioner) saying that the balance in this account was Rs. 26,500‑5‑6 only. Exh. P. 21 is a copy of the letter dated the 4th of May 1953, sent by the Official Liquidator to the respondent demanding this sum of Rs. 26,500‑5‑6 plus the interest. In this Court as well in this application, as ordinarily filed, the demand was for the recovery of Rs. 26,500‑5‑6 along with interest as the balance due on the basis of this mortgage. From all this material I am inclined to hold that the sum due from the respondent, on the basis of the mortgage, is Rs. 26,500‑5‑6 plus future interest at the rate of 6 % per annum with half‑yearly rests from the 12th of July 1946 till repayment in full.

8. But in view of my findings on issue No. 2 above, I hold that this application is not maintainable, and I am, therefore, constrained to dismiss the same. However, there shall be no order as to costs in the circumstances of the case. S. A. H. Order accordingly.