2021 PLP 1418 (CLD)

QAISER RASHID KHAN, ACJ.

Through the appeal in hand, the appellant has called in question the judgment and order dated 17.09.2011 of the learned Judge Banking Court-I, Peshawar, whereby his application for setting aside the ex parte decree dated 16.04.2011 was dismissed.

2. As per facts gathered from the record, the respondent-Bank filed a recovery suit for a sum of Rs.14,99,211/- against the defendants before the learned Banking Court-I, Peshawar and on account of their non appearance, the suit was decreed ex parte on 16.4.2011. The appellant being one of the defendants submitted an application for setting aside the ex parte decree which was dismissed through the impugned judgment and order dated 17.09.2011 and that is how the appellant-defendant has preferred the instant appeal.

3. The learned counsel for the appellant-defendant contends that he was not served in accordance with law and more so, the two dailies whereby he was alleged to have been served do not enjoy wide circulation and not only the suit was decreed ex parte but thereafter the follow up execution proceedings before the learned Judge Banking Court culminated into the auction of his valuable property for a paltry sum of Rs.17,03,500/-. He argues that on one hand, the appellant was not afforded with any opportunity to defend his stance before the learned Judge Banking Court by filing a formal leave to defend application while on the other, he was burdened with the decretal amount and also deprived during the course of execution proceedings of his property, whose market value is much higher. Next contends that the property mortgaged with the respondent-bank by the defendants against the finance facility was in fact their inherited property from which they were forcibly dispossessed by the land grabbers and thus they settled at Karachi due to the life threats from them; that their absence before the learned Banking Court was not intentional but due to unawareness of the filing the suit by the respondent-bank. He lastly contends that the ex parte decree may be set aside and the appellant may be afforded an opportunity to file a formal leave to defend application.

4. The learned counsel for the respondent-Bank on their turn defends the impugned judgment and order of the learned Judge Banking Court and contends that the appellant-defendant was duly served in accordance with law and procedure but he wilfully absented himself and resultantly, the learned Judge Banking Court was left with no choice but to pass an ex parte decree in favour of the respondent-Bank.

5. Arguments heard and the available record perused.

6. As the record unfolds, it was the respondent-bank who filed a recovery suit for a sum of Rs.14,99,211/- against Messrs New Pabbi, Pre-stressed Concrete Industries, G.T. Road, Pabbi, Near Khyber Electric Lamps, Peshawar and its partners namely Mohammad Amir Safdar and Mohammad Ashfaq before the learned Banking Court-I, Peshawar on 28.2.2011. The record suggests that they had applied to the respondent- bank in the name of the defendant-firm for the grant of 'Current Finance Facility' in the year 2004, which was accordingly, sanctioned vide letter dated 16.07.2004 whereafter the same was renewed vide sanction letter dated 1.2.2010 and the defendants stood as guarantors of the defendant-firm. On the failure of the defendants to pay off their liabilities, the respondent-bank filed a recovery suit against them. On 28.2.2011, the learned Judge Banking Court issued directions for the procurement of the attendance of the defendants through issuance of summons through bailiff, registered post AD, Courier and publication in dailies Khabrain and Pakistan Observer. Pursuant to such directions, the service upon the defendants was effected through publication in two newspapers on 8.3.2011 and 13.3.2011, respectively, besides the issuance of notice to the defendants under Section 10 (2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as through registered post under AD cover and courier service as well but still they did not turn up before the court and finally, they were placed ex-parte vide order dated 16.4.2011 followed by the ex parte judgment and decree on the even date in favour of the respondent-bank.

7. Subsection (5) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 deals with the procurement of the service of the defendant. At this stage, it would be more apt to reproduce the same, which reads as under:- "On a plaint being presented to the Banking Court, summons in Form No. 4 in Appendix 'B' to the Code of Civil Procedure, 1908 (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 Ordinance. In the 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 but against due acknowledgement. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits."

8. In view of the above cited section of the Ordinance, it is crystal clear that even if the service is duly effected in anyone of the aforesaid modes viz. through bailiff or process server of the Banking Court, by registered post acknowledgment due, by courier or by publication, the same shall be deemed to be a valid service for the purpose of this ordinance. Therefore, the plea taken by the appellant-defendant in his application for setting aside the ex parte decree that the service was not properly effected upon him holds no water.

9. So far as the plea of the appellant-defendant that he was dispossessed by the land grabbers from their inherited property and thus settled with his family at Karachi, suffice it to say that it is the bounden duty of a borrower to furnish information regarding his change of abode to the concerned bank. However, in this case, the appellant-defendant did not perform his such legal obligation.

10. Such being the case, we understand that the learned Banking Court, Peshawar has duly attended to the controversy, so involved in the matter and has rightly dismissed the appellant's application for setting aside the ex parte judgment and decree dated 16.4.2011 through the impugned judgment and order. Such findings do not suffer from any illegality, misreading or non-reading of record, so as to in turn call for the indulgence of this court through the present appeal.

11. Resultantly, this appeal along with CM being without any substance stand dismissed. KMZ/169.P Appeal dismissed.