2021 PLP 791 (CLD)

ROZI KHAN BARRECH, J.

This appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance,. 2001") has been filed against the judgment and decree dated 04.04.2017 ("impugned judgment") passed by the Banking Court of Balochistan Quetta ("trial court") whereby the trial court decreed the suit for recovery in favour of the respondent bank.

2. Brief facts of the case are that the appellant availed the finance facility of Rs.15,00,000/- from the respondent bank after executing collateral documents as per banking rules and later on failed to repay, hence the suit. Neither the appellant appeared before the trial court nor filed any application for leave to defend in consequence whereof, the respondent bank was awarded money decree as prayed for with costs as well as costs of funds as per rate approved by the State Bank of Pakistan from the period and date of default till realization vide impugned judgment dated 04.04.2017. Whereafter the instant appeal has been filed.

3. On the last date of hearing i.e. 28.10.2020 there was no appearance on behalf of the appellant, under such circumstances having left with no other option we decided to proceed with the matter and decide the same on the basis of available record.

4. We have perused the entire record. It reveals that the appellant has filed the instant appeal on 03.02.2018 i.e. one year, two months and one day after passing of the impugned judgment dated 04.04.2017. However the appellant has also filed an application under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing the appeal on the ground that the appellant was not in knowledge about the impugned judgment and decree passed by the trial court and due to this reason he could not file the instant appeal in time. He, therefore, prays that the delay in filing appeal may be condoned.

5. The remedy of appeal against the judgment and decree, passed by the Banking Court, in a suit, is provided under section 22 of the Ordinance, which reads as under:- "

22. Appeal. (1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court. 2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing. (3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant:" A plain reading of the above provisions of law reveals that subsection (1) of section 22 of the Ordinance provides period of thirty days for filing the appeal by any person aggrieved by any judgment, decree, sentence, or final order, passed by a Banking Court, to the High Court.

6. Section 29 of Limitation Act, 1908 (hereinafter "the Act"), which is the relevant provision of law regarding applicability of certain provisions of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal or application, is reproduced herein below, so as to appreciate, if the provisions of section 5 of the Act, would be applicable to the case in hand:- "

29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872 (IX of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law

(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply." A bare reading of the above provisions of law, reveals that for the purpose of determining period of Limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 of the Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; section 29(2)(b), provides that the remaining provisions of the Act, shall not apply.

7. In view of the above, we are of the considered opinion that the provisions of section 5 of the Act, are not applicable to the appeal filed under section 22 of the Ordinance as the Ordinance, which is a special law, itself provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order, passed by the Banking Court. Reference can be made to case of Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286), wherein the Hon'ble Supreme Court observed as under:- "5....where the law under which proceedings have been launched prescribes itself a period of limitation...... then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act....."

8. Moreover, from a perusal of the certified copies of the impugned judgment and decree annexed with the appeal, it would be seen that the impugned judgment were delivered to the appellant on 29.01.2018, but the instant appeal was filed on 03.02.2018, which is barred by two days. Furthermore, the ground take by the appellant in the application filed for condonation of delay that the appellant was not in knowledge of passing the impugned judgment and decree, passed by the trial court, and hence, he could not be able to file the instant appeal in time is patently absurd and misconceived, as the appellant had filed the instant appeal after thirty two days of receiving the certified copies of the impugned judgment and decree. Moreover, such an assertion of the appellant could hardly be a ground for the appellant to seek condonation of delay of one year, two months and one day in filing the appeal even in a case attracting provisions of section 5 of the Act as the delay of each and every day with justification was to be explained in such a case in view of well settled law, what to say about the case one in hand in which the provisions of section 5 of the Act, are inapplicable as discussed by us in para supra. In view of what has been discussed above, we are of the considered view that the instant application under section 5 of the Act, being not maintainable is liable to be dismissed and resultantly the instant appeal being tme barred also deserves to be dismissed. KMZ/269/Bal. Appeal dismissed.