2006 PLP 984 (CLD)

This appeal is directed against the order, dated 8-3-2006 whereby the application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance 2001 filed by appellants was dismissed by a learned Judge of the Banking Court.

2. Facts of the case are that respondent filed a suit for recovery on 3-3-2000 against Messrs Ch. Muhammad Ishaq, Muhammad Zahid Iqbal and Muhammad Ilyas before the Banking Court at Lahore. Said suit was decreed on 29-5-2001. It appears that at the time of the filing of the suit, said Muhammad Ilyas father of the present petitioner had died. And at that point of time, present petitioners were minors. Application under section 12 of the Financial Institutions (Recovery of Loans) Ordinance, 2001 was filed, inter alia, on behalf of the petitioner through their mother which was accepted, and ex parte judgment and decree was set aside vide order, dated 24-6-2002. It appear that subsequently amended plaint was filed by respondent-Bank impleading the present petitioners and their mother. The factum that present petitioners were minors at that point of time was mentioned in the plaint. Said amended plaint appears to have been filed in July, 2004. Banking Court directed issuance of summons to the present petitioners and their mother in terms of section 9 of the Ordinance. The present petitioner did not enter appearance nor any application for leave to defend the suit was filed. Consequently, vide judgment, dated 6-7-2005, the Banking Court decreed the suit, whereafter execution proceedings commenced and notice under Order XXI, rule 66, C.P.C. were issued, and apparently, served upon mother of the present petitioners. Whereafter, present petitioners filed an application under section 12 of the Ordinance claiming that they had no knowledge of the judgment and decree and prayed that the same be set aside. Said application was resisted by respondent-Bank and was eventually dismissed by the Banking Court vide the impugned order.

3. Counsel for the parties have been heard and the record appended with this petition perused.

4. Learned counsel for the petitioner submits that petitioners were never served prior to the passing of the judgment and decree, dated 6-7-2005 and had no knowledge thereof. And it is only upon service of the notice under Order XXI, rule 66, C.P.C. that the factum of the decree came to the knowledge of the petitioners who thereafter filed application under section 12 of the Ordinance within the time prescribed therefor in the said provisions i.e. 21 days from the date of the knowledge of the decree, hence, the Banking Court had erred in assuming that application was barred by limitation. It is further contended that even otherwise decree is a nullity in the eye of law and liable to be set aside.

5. Whereas, learned counsel for the respondent controverts the assertions raised on behalf of the petitioner by saying that petitioners had themselves earlier filed an application under section 12 of the Ordinance which was accepted, hence had the full knowledge of the pendency of the suit. Adds that in fact petitioners had been served in accordance with law, therefore, application was justifiably dismissed.

6. There is no escape from the fact that petitioners were first impleaded as defendants by means of amended plaint filed in July, 2004. It is equally apparent from the record and not disputed by either party that defendants were directed to be served in accordance with provision of section 9 of the Financial Ordinance, 2001. Perusal of the judgment, dated 6-7-2005 reveals that summons were issued to the petitioners and their mother in the requisite form vide registered A.D., bailiff and courier service in addition to the publication in the press. Judgment does not state that service in any of the modes mentioned was affected on the petitioner. It is merely recorded that such summons had been issued at their given address and this is considered sufficient service under the law". There is no mention that service had been effected in any of the modes prescribed under section 9 of the Ordinance upon the petitioners. It can only be presumed that Banking Court had considered service through citation in the press as sufficient to proceed against them.

7. The impugned order has been passed entirely on the assumption that mother of the petitioners had been allegedly served through affixation on 28-4-2005. It is the case of petitioners that two of them were in fact major and had to be served personally or through a male relative, hence, the alleged service of their mother was insufficient. Dates of birth of the petitioners have been disclosed in the earlier application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, in terms whereof it is specifically contended that petitioner No.1 became major on 3-11-2000, petitioner No.2 on 21-1-2003 while petitioner No.3 alone was minor at the time.

8. It is further contended by the learned counsel for the petitioner that in terms of provision 12 of the Ordinance time for application is to be computed from the date of knowledge of decree and the alleged knowledge of the pendency of suit is irrelevant, especially, in a suit where the petitioners have not been impleaded as a party.

9. Perusal of impugned order reveals that aforesaid matters which are germane to the adjudication of the lis at hand have escaped the notice of the learned Judge of the Banking Court, and the adjudication thereof is necessary along with other issues raised by the learned counsel for the petitioner. In these circumstances impugned order is not sustainable and is hereby set aside with the consequence that case is remanded to the Banking Court to decide the matter afresh in the light of the observations made above. S.A.K./A-86/L???????????????????????????????????????????????????????????????????????????????????? Case remanded.