2002 PLP 636 (CLD)

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑ ‑‑‑‑Ss. 10, 12 & 21‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑ Limitation‑‑‑Applications for leave to defend‑‑‑Banking Court after dismissing such applications for non‑prosecution decreed the suit on 19‑3‑2001‑‑‑Defendants filed application under S.12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 for setting aside of judgment and decree, but the same was dismissed as being not maintainable vide order, dated 18‑5‑2001‑‑‑Defendants filed regular first appeal against judgment and decree, dated 19‑3‑2001 as well as order, dated 18‑5‑2001‑‑‑Defendants also filed first appeal against Order, dated 18‑5‑2001‑‑‑Validity‑‑‑Defendants applied for certified copies of impugned judgment and decree after 65 days of its passing i.e. on 24‑5‑2001, when period of 30 days prescribed under S.21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 for filing of appeal had already expired‑‑‑Defendants had neither filed application under S.5 of Limitation Act, 1908, for‑condonation of delay nor had given explanation in memorandum of appeal for preferring appeal beyond prescribed period of limitation‑‑‑Regular First Appeal thus was grossly time‑barred‑‑‑Regular First Appeal would not lie against the impugned order‑‑‑High Court declined to entertain regular first appeal against order, dated 18‑5‑2001, which had already been challenged in first appeal against order and had been admitted for regular hearing‑‑ Defendants could not file two appeals against the same order‑‑ High Court dismissed the regular first appeal in circumstances. Farooq Amjad Mir and Muhammad Afzal for Appellants. Shams Mahmood Mirza for Respondent. Date of hearing: 10th January, 2002. MIAN HAMID FAROOQ, J.‑‑‑The present appeal, filed under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, calls in question the judgment and decree, dated 19‑3‑2001, whereby suit for recovery, filed by the respondent‑bank, was decreed against the appellants, and order, dated 18‑5‑2001, through which an application, filed under section 12 of the said Act of 1997, was dismissed.

2. Facts, in brief, leading to the filing of the present appeal are that the respondent‑bank instituted a suit for recovery of Rs.50,275,434.48 (C.O.S. No. 175 of 1998) before this Court, in its original banking jurisdiction, against the appellants, wherein they filed two different applications (P.L.A. No.28 of 1999 and P.L.A. No.29 of 1999), seeking leave to defend the suit, which were, statedly, replied by the respondent‑bank. On 19‑3‑2001, as none appeared on behalf of the appellants to prosecute their aforenoted applications, therefore, the learned Banking Judge of this Court proceeded to dismiss those applications and consequent thereto afore‑mentioned suit was decreed in favour of the respondent‑bank vide judgment and decree, dated 19‑3‑2001. Seemingly aggrieved by the aforesaid judgment and decree, instead of filing the appeal before the higher forum at that point of time, the appellants, in their own wisdom, thought it fit to file an application, purportedly, under section 12 of the said Act, 1977 (C.M. No.189/B/2001), for recalling/ setting aside of judgment and decree, dated 19‑3‑2001, but the learned Single Judge, acting as Banking Court, while holding that the "application before the Banking Court for recalling/setting aside of the order is misconceived and it does not lie", dismissed the said application, as being not maintainable, vide order, dated 18‑5‑2001. Thereafter, the appellants on 20‑6‑2001, filed the present appeal, thereby challenging the judgment and decree, dated 19‑3‑2001 and also order, dated 18‑5‑2001. Simultaneously, the appellants, on the same day preferred another appeal (F.A.O. No. 180 of 2001) thereby challenging the order, dated 18‑5‑2001.

3. At the very outset, the learned counsel for the respondent‑Bank has raised a preliminary objection that as the appeal against the judgment and decree, dated 19‑3‑2001 is barred by time, therefore, the same cannot proceed and deserves dismissal. In view of the said objection we have examined the record and find that the impugned judgment and decree was passed on 19‑3‑2001, certified copies of the judgment and decree, annexed with this appeal, show that an application for obtaining certified copies was presented on 24‑5‑2001, the copies were supplied to the appellants on 9‑6‑2001, and the instant appeal was instituted on 20‑6‑2001. There is no dispute between the parties about these dates.

4. It flows from the above narrative that the appellants applied for the certified copies of the judgment and decree after two months and five days (65 days) of the passing of the decree and subsequently, the appeal in hand was filed after 93 days of the passing of the decree. Limitation for filing such an appeal is provided in section 21 of Act XV of 1997, which prescribed a period of 30 days for filing an appeal commencing from the date of passing of the judgment and decree. In this case, as the appeal was filed after 93 days of the passing of the decree and even the certified copies of the judgment and decree were applied on 24‑5‑2001, when period of 30 days prescribed for filing the appeal had already expired, thus, the appeal in hand is grossly barred by time. Amazingly, the appellants did not deem it proper to file an application under section 5 of the Limitation Act seeking condonation of delay. We have perused the contents of the memorandum of appeal, wherein also no explanation for preferring the appeal beyond the prescribed period of limitation is forthcoming. Thus, we are constrained to hold that under the present set of circumstances the instant appeal is grossly barred by time, thus, deserves dismissal.

5. In this appeal, apart from challenging the judgment and decree, dated 19‑3‑2001, the appellants have also called in question order, dated 18‑5‑2001. Admittedly, the appellants have also filed another appeal (F.A.O. No. 180 of 2001) thereby challenging the order, dated 18‑5‑2001, which has been admitted to regular hearing by this Court on 21‑6‑2001 and is still pending adjudication in this Court. As the order, dated 18‑5‑2001, has also been called in question in another appeal and the appellants cannot file two appeals against the same order, thus, we are not inclined to entertain this appeal against the said order, moreso, when Regular First Appeal (R.F.A.) does not lie against an order and first appeal against an order (F.A.O. No. 180 of 2001) is pending adjudication.

6. In the above perspective and on account of afore‑noted reasons and findings, we are constrained to dismiss the appeal with no order as to costs. S.A.K./Z‑86/L Appeal dismissed.