2004 PLP 1157 (CLD)

SYED ZAHID HUSSAIN, J.

A suit for declaration instituted by the respondents impleading therein Industrial Development Bank of Pakistan as defendant No. 1 and two of its officials have been decreed by the learned Banking Court No.II, Lahore vide judgment and decree dated, 9-8-1997 whereagainst this appeal has been preferred under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1997.

2. Since the suit filed by the respondents has been decreed treating the reply to the show-cause notice/application to defend as out of time, the learned counsel for the appellants has demonstrated from the record to show that the view taken by the learned Banking Court is not supported by the circumstances. It is contended that the notice was received by the Bank on 15-5-1997 and reply to show cause filed on 5-6-1997 was well within limitation, which could not be termed as barred by time. The learned counsel for the respondents, however, has endeavoured to show that some officials of the Bank had been served before 15-5-1997, the period of limitation should be reckoned from that date.

3. We have perused the record of original Court and observe that the suit was filed on 26-2-1997 in which notices were ordered to be issued by the Court for 5-4-1997. The notices, however, could not be issued for non-deposit of process and the same was adjourned to 20-5-1997. On that date the counsel for the appellants appeared and submitted Wakalatnama. It was noted by the Court on that date that there was still time to file reply to the show-cause notice. On 5-6-1997 reply to the show-cause notice was submitted in Court. There is a copy of notice issued on 5-5-1997 for 20-5-1997, which bears an endorsement of S.V.P. (litigation) dated 15-5-1997. Some other noting on the same also bear the same date. Reckoning the time available for filing reply to show-cause notice/application, its filing on 5-6-1997 was within limitation. The learned Banking Court however, taking the date of service of notice upon defendants Nos.2 and 3 as 8-5-1997 has held the application filed on 5-6-1997 beyond limitation. It may be observed that the necessary and effective party to the suit was defendant No. 1, the Bank itself and not the other two defendants who were merely officials of the Bank. The Court thus acted erroneously in rejecting the application of the Bank. It may also be observed that the prayer made in the suit could not have been granted without affording proper opportunity and considering the defence of the appellants/defendants nor such a declaration be granted, the manner it was done. Reference in this context may be made to Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited. Abbottabad PLD 1995 SC 362 wherein it was observed that "Every Court is required to apply its mind before Passing any order or Judgment notwithstanding the factum that no person has appeared before it to oppose such an order or that the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirements of A law" (underlined by us due to the importance and relevance of the observation to the instant case). The rule so laid down above was reiterated in Messrs Qureshi Salt & Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353. We, therefore, are unable to affirm the view of the learned Banking Court and decree passed by it. Thus by setting aside order and decree dated 9-8-1997 we accept the appeal and remit the matter to the Banking Court, Lahore for consideration of the application for leave to appear and defend filed by the appellants for decision afresh in accordance with law. No order as to costs. M.A.W./I-209/L Appeal accepted.