1993SCMR931 (PLP)

‑‑‑‑Ss.7 & 3‑‑‑Civil Procedure Code (V of 1908), OXXXVII,. R.3‑‑‑Limitation Act (IX of 1908), Arts.159 & 181‑‑‑Application for leave to defend the suit‑‑ Article 159, Limitation Act, 1908 having direct nexus with the provisions of OXXXVII, C.P.C. and both provisions being interdependent and inter connected have to be applied in the trial of suits under the Banking Companies (Recovery of Loans) Ordinance, 1979. Section 7, subsection (1) of the Banking Companies (Recovery of Loans) Ordinance, 1979 provides that suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment. Order XXXVII, C.P.C. envisages summary procedure for suits based on negotiable instruments and under Rule 3 thereof, the Court is competent to grant leave to the defendant to appear and defend the suit unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise. Article 159 of the Limitation Act prescribes 10 days period for filing applications for leave to appear and defend a suit under summary procedure of Order XXXVII of the Code of Civil Procedure commencing from the time when the summons is served. This Article has direct nexus with the provisions of Order XXXVII and both provisions being interdependent and inter‑connected have to be applied in the trial of suits under the Banking Companies (Recovery of Loans) Ordinance, 1979. Article 181 is a residuary article and can be attracted only when no period of limitation is provided for elsewhere in the Limitation Act itself. The legislature while applying summary procedure under Order XXXVII to the suits triable under the Banking Companies (Recovery of Loans) Ordinance, 1979, must have been conscious of the fact that the defendants in such suits shall have to seek permission of the Court to appear and defend the suit and shall have to be confronted with Article 159 providing period of limitation therefore if they commit delay in seeking the requisite permission, and as such, no specific mention in the Ordinance itself, was called for. Moreover section 3 of the above Ordinance provides that the provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force. Obviously, the other relevant laws not inconsistent with the provisions thereof have been made applicable including the Law of Limitation. Article 159 of the Limitation Act, thus, was rightly applied by the lower two forums in rejecting the application as time‑barred. [p. 934) C Mansoorul Arifin, Advocate Supreme Court and Mrs. Majida Rizvi, Advocate‑on‑Record for Appellants. M. A. Qureshi, Advocate‑on‑Record (absent) for Respondent. Date of hearing: 16th January, 1993. WALI MUHAMMAD KHAN, J.‑‑‑The instant appeal, through leave of the Court, is directed against the judgment dated 26‑10‑1988 passed by a learned Division Bench of the High Court of Sindh, whereby Special High Court Appeal No.132 of 1988 filed by the appellants against the order of the learned Single Judge of the High Court of Sindh dated 10‑12‑1987 rejecting their application for leave to defend as well as their application for condonation of delay was dismissed. The leave granting order is as follows:‑‑ "Mr. Mansoor‑ul‑Aritin, learned counsel appearing in support of the petition submitted that the learned High Court erred in not appreciating that Article 159 of the Limitation Act does not apply to an application for leave to defend a suit filed under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979. This and other submission made in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition:" Admittedly, the suit for recovery of an amount of Rs. 47,00,616 was filed by Union Bank of the Middle East Limited presently known as Emirates Bank International Limited respondent herein, against the National Bank of Pakistan, appellant herein, under the Banking Companies (Recovery of Loans) Ordinance, 1979 to be tried under the summary procedure of Order 37 of the Civil Procedure Code. The defendants/appellants were duly served on 5‑5‑1987 and their counsel filed his power of attorney on 12‑5‑1987 but deferred the filing of the application for permission to defend the suit as required under Order 37, Rule 3, C.P.C. till 31‑5‑1987 when an application was filed under section 5 of the Limitation Act for condonation of delay on the ground that the dealings with the plaintiff were allegedly made by defendant No.2, a branch of defendant No. 1 having its office at Hong Kong and that on the receipt of the summons as well as the copy of the plaint, a telex was sent to defendant No. 2 on 11‑5‑1987 informing them of the suit in question, a copy of the plaint sent to them on 12‑5‑1987 followed by another telex on 13‑5‑1987 directing them to submit para‑wise comments immediately alongwith the relevant documents and that on the receipt thereof application for permission to defend the suit was filed and thus the delay occurred was not deliberate or intentional. The learned Single Judge of the High Court trying the suit could not be persuaded to condone the delay and accordingly rejected both the applications, resulting in the decreeing of the suit. The appeal filed against it having failed, the instant appeal through leave of the Court has been filed. We have heard Mr. Mansoorul Arifin, Advocate, for the appellants, and have perused the record of the case. The learned counsel for the appellants emphatically argued that the delay in the submission of application under Order 37, Rule 3 for lave to appear and defend the suit occurred on account of circumstances beyond the control of the defendants/appellants and that the learned lower forums legally erred in refusing the permission sought for depriving the appellant of their valuable right to defend the suit. He forcefully reiterated his submissions incorporated in the leave granting order that Article 159 of the Limitation Act did not apply to the application for leave to defend the suit under the Banking Companies (Recovery of Loans) Ordinance, 1979. Both the learned lower forums have devoted due attention to the grounds agitated in the application filed by the appellants for condoning the delay in filing the application for leave to defend and have for substantial reasons declined the permission prayed for. They have properly exercised their discretion which cannot be interfered with at this stage in the absence of any legal error, misreading or non‑reading of evidence. As regards the application of Article 159 of the Limitation Act, the learned counsel for the appellants submitted that the language of section 7, subsection (2) of the Banking Companies (Recovery of Loans) Ordinance, 1979 ordains that in the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure; but it does not refer specifically to the application of Article 159 of the Limitation Act while considering and disposing of applications under Order 37 for permission to appear and defend the suit, and that in consequence only the residuary Article 181 would be applicable. We are afraid, the arguments, if accepted, would defeat the very purpose of the Ordinance itself and the command made in section 7, subsection (1) which provides that suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded, a Special Court shall not allow adjournment Order

37. C.P.C. envisages summary procedure for suits based on negotiable instruments and under Rule 3 thereof, the Court is competent to grant leave to the defendant to appear and defend the suit unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise. Article 159 of the Limitation Act prescribes 10 days period for filing applications for leave to appear and defend a suit under summary procedure of Order 37 of the Code of Civil Procedure commencing from the time when the summons is served. This Article has direct nexus with the provisions of Order 37 and both provisions being inter‑dependent and inter‑connected have to be applied in the trial of suits under the Banking Companies (Recovery of Loans) Ordinance, 1979. Article 181 is a residuary article and can be attracted only when no period of limitation is provided for elsewhere in the Limitation Act itself. The legislature while applying summary procedure under Order 37 to the suits triable under the Banking Companies (Recovery of Loans) Ordinance, 1979, must have been conscious of the fact that the defendants in such suits shall have to seek permission of the Court to appear and defend the suit and shall have to be confronted with Article 159 providing period of limitation therefore if commit delay in seeking the requisite permission, and as such, no specific mention in the Ordinance itself, in our view, was called for. Moreover, section 3 of the above Ordinance provides that the provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force. Obviously, the other relevant laws not inconsistent with the provisions thereof have been made applicable including the law of limitation. We accordingly hold that Article 159 of the Limitation Act was rightly applied by the lower two forums in rejecting the application as time‑barred. Resultantly there is no merit in the instant appeal and the same is dismissed with no order as to costs. The learned counsel for the appellants informed us that the appellants have already moved the trial Court for setting aside of the impugned decree in the exercise of its power under Order 37 Rule 4, C.P.C. which is still pending adjudication. It is, therefore, observed that this judgment shall not stand as a bar in the disposal thereof on merits. M.B.H./N‑329/S Appeal dismissed.