2005 PLP 1799 (CLD)

SYED HAMID ALI SHAH, J.

Brief facts giving rise to this appeal are that appellant No.1 was sanctioned vide sanction letter dated 8-1-1987, the finance assistance under SBP scheme for locally manufactured machinery, valuing Rs.2.475 million, besides running finance facility to the tune of Rs.3.500 million. The finance facility was subsequently enhanced to Rs.5.000 million, on 16-8-1992. The appellants executed various documents at the time of the availing of the loan, including the personal guarantees of appellants Nos.2 to 4 being by the Directors of the Company. The appellants Nos.2 to 4 were sued as such, in their personal capacity. The appellant's failure to liquidate their liabilities, resulted into institution of suit for recovery against them. The suit was filed before the Banking Tribunal, Lahore for recovery of Rs. 10,678,706.71 as on 29-5-1996. The appellants filed reply to show-cause notice under section 6(2) of the Banking Tribunals Ordinance, 1984 (now repealed). The reply was considered by the Banking Court as application for leave to defend the suit, which was accepted and the leave to defend the suit was granted on 19-2-1999. The appellants filed the written statement and out of divergent pleadings of the parties, eight (8) issues were framed. The parties led their evidence and Banking Court-V, Lahore vide judgment and decree dated 25-5-2001 decreed the suit in favour of the plaintiffs for a sum of Rs. 10,678,706.71 with cost and mark-up till the realization. The decree dated 25-5-2001 is being assailed through the instant appeal.

2. Learned counsel for the appellants has submitted that the suit had not been instituted by a competent person. He added that the suit has been filed through Zafar Hameed, who is admittedly Senior Vice-President. The suit under the provisions of Banking Tribunals Ordinance, 1984 (now repealed) could only be instituted by Banking Company, through Branch Manager, Assistant Vice-President, or such other Officer, who is authorized by the Board of Directors of the Banking Company through a valid resolution. There was no resolution in favour of Zafar Hameed, nor any evidence was led to prove the signatures of Zafar Hameed, SVP. He then argued that the suit is barred by limitation as the time began to run against the appellants from the date when they entered into the agreement of finance. The suit was filed in the Banking Tribunal on 29-5-1996. Further stated that the agreement of finance was executed and signed by the parties on 20-7-1988, the facility was renewed on 17-6-1991. The plaintiff/respondent admitted in para.6 of the plaint that no amount towards liquidation of the dues was paid since 28-12-1992. The suit has not been filed within the period of limitation, therefore, the same is barred. As the limitation for the filing of the suit according to him is three years. Learned counsel for the appellants has referred to the case of "Muhammad Ramzan and 4 others v. Agricultural Development Bank of Pakistan" 2004 CLD 1376 in support of his contention.

3. Learned counsel for the respondent, on the other hand, has fully supported the impugned judgment and decree. He has argued that the Court below has passed the decree after proper appraisal of the whole of the evidence. The learned Court passed the decree on the score that availing of the finance facility and execution of agreements was admitted and no instance of charging of excess mark-up, was pointed out nor there was any evidence in rebuttal to prove that the suit amount was not outstanding. He has referred to Notification dated 13-9-1974 bearing EST/110/1292/72 i.e. Exh.P.12 wherein the Board of Directors in its meeting of the respondent-Company, authorized the Officers of the rank of Senior Vice-President to institute the suit. He further contended that the loan was secured by mortgage, memorandum of deposit of title deed dated 20-7-1988 Exh.P.14 has been produced in this respect in evidence. He referred to another memorandum of deposit of title deed i.e. Exh. P.15 and certificate of registration of mortgage i.e. Exh.P.8, to contend that the suit is based on mortgage and the period for limitation in case in hand is twelve years. He has emphasized after referring to the said documents that the suit is filed within the period of limitation.

4. Heard learned counsel for the parties and perused the record.

5. Bashir Ahmad, Assistant Vice-President appeared as P.W.1 and stated in his examination-in-chief that;-- In view of the resolution and the statement of P.W.1 the learned trial Court has rightly decided Issues Nos.1 and 3 in favour of the respondent and against the appellants.

6. We do not find any force in the arguments of the learned counsel for the appellants, with regard to the question of limitation. The instant suit has been filed under the provisions of the Banking Tribunals Ordinance, 1984. The law of limitation does not apply to the suits filed under Banking Tribunals Ordinance section 12 is reproduced as under:-- "Limitation Act, 1908 (Act IX of 1908), not to apply

the provisions of the Limitation Act, 1908 (Act IX of 1908), shall not apply to any suit, application or proceedings filed by a Banking Company under this Ordinance." In view of the above quoted provisions of law, law of limitation does not apply to suits, filed under Banking Tribunals Ordinance, 1984.

7. There is another aspect of the case that none of the appellants have appeared as a witness. The solitary witness from the appellant's side is Muhammad Yasin, who is stranger to the transaction and his statement has no evidentiary value. He had shown his inability to tell the area of the Mills, the number of the Directors or the source from where the funds for the establishment of the Mills were arranged. He in his statement admitted that he has once visited Bahawalpur and that too a year earlier. The respondent, on the other hand, has produced three witnesses who had produced all the relevant documents in original in support of the assertions made in the plaint. Learned Banking Court has passed the decree after considering all these facts and we do not see any infirmity in the impugned judgment and decree.

8. For the foregoing reasons, we find no force in this appeal and the same is hereby dismissed. M.B.A./T-106/L Appeal dismissed.