2013 PLP 177 (CLD)

The appellants by way of present appeal preferred under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have called in question the legality of orders dated 21-3-2012 and 3-4-2012 whereby the learned Banking Court No.1, Multan, directed to put the property of appellants into auction.

2. Since the appeal is barred by time, therefore, the appellants have filed application under section 5 of the Limitation Act, 1908, (C.M. No.3-C of 2012) seeking condonation of delay in preferring E.F.A. No.20 of 2012 titled "Messrs KHAN TRACTORS ETC. v. HABIB BANK LIMITED" contending that valuable rights of the applicants are involved and as such while granting premium appeal be decided on merits.

3. Heard. Specific question was posed to the learned counsel for the applicants-appellants regarding the applicability of the provisions of Section 5 of the Limitation Act, 1908 (Act No. IX of 1908) to the proceedings arising out of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001). Though it was maintained that provision of section 5 of the Limitation Act, 1908, is applicable to the proceedings arising out of matters under the Ordinance (XLVI of 2001) but half-hearted attempt has least impressed us in view of well-settled proposition of law.

4. According to section 29 of the Limitation Act, 1908 (hereinafter called the Act), where time is prescribed by any special or local law for any suit, appeal or application, different from the period prescribed by the First Schedule of the 'Act', then the provisions of said Act contained in sections 4, 9, 10, 18 and 22 shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Clause (b) of subsection (2) of section 29, excludes the application of remaining provisions of the Act. A In view of the matter, provisions of section 5 of the Limitation Act by virtue of ouster clause are not applicable to the proceedings of the appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, as the later mentioned provisions prescribe a period of 30 days for preferring an appeal. A

5. It is worth mentioning that there is no enabling and permissive provisions of law in the said Ordinance in order to apply section 5 of the Act.

6. The honourable apex Court, while examining the provisions of section 29(2) and section 5 of the Act has held in "ALLAH DINO and another v. MUHAMMAD SHAH and others"(2001 SCMR 286) that where the law under which proceedings had been initiated itself prescribed a period of limitation, then the benefit of section 5 of the Limitation Act, 1908, could not be availed unless the same had been made applicable as per section 29(2) of the Act. 6-A. Question of applicability of section 5 of the Limitation Act, 1908, to the proceedings initiated under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, (XLVI) of 2001, was dealt with by this Court in "ABDUL RASHEED and another v. BANK OF PUNJAB through Branch Manager" (2004 CLD 800), "PROTEIN AND FATS INTERNATIONAL (PVT.) LIMITED through Chief Executive and 2 others v. CAPITAL ASSETS LEASING CORPORATION LIMITED through Manger" (2005 CLD 857), "SIKANDAR HAYAT v. AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Manager" (2005 CLD 870) and "INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN v. REHMANIA TEXTILE MILLS (PVT.) LIMITED through Chief Executive and 3 others" (2006 CLD 81) and it was held that since special law has provided different period of limitation for filing appeal in the court than the ordinary law, therefore, section 5 of the Limitation Act is not attracted to the appeal preferred beyond period of limitation provided in section 22 of the Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001).

7. Learned Division Bench of the Karachi High Court dealing with the same proposition in "Messrs S. MALIK TRADERS and another v. SAUDI PAK LEASING COMPANY LTD." (2009 CLD 171) also held that provisions of section 5 of the Limitation Act, 1908, cannot be made applicable in an appeal, having been preferred under a special Statute i.e. the Financial Institutions (Recovery of Finances) Ordinance, 2001. B

8. Pursuant to above discussion and in view of settled proposition of law, provisions of section 5 of the Limitation Act are not attracted to the appeal preferred under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001) and as such the application being not maintainable is dismissed. B

9. Admittedly, appeal preferred by appellants is barred by time, therefore, same is dismissed in limine leaving the appellants to bear their own costs. KMZ/K-22/L Appeal dismissed.