2005 PLP 650 (CLD)

This appeal is directed against the order dated 6-7-2004 passed by the Banking Court-I, Faisalabad whereby an application under section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 filed by the appellant was dismissed.

2. That respondent No.8 (Muslim Commercial Bank Ltd.) filed a suit for recovery of Rs.33,38,332.77 against the appellant and respondents Nos.1 to 7 before the Banking Court-I, Faisalabad. In the said suit the present appellant had been impleaded as a mortgagor. Summonses were issued to all the defendants including the appellant whereafter an application for leave to defend was filed by the defendants including the appellant. The said application did not find favour and the suit was decreed against the appellant and the respondents Nos.1 to 7, vide judgment and decree dated 30-11-2001. Thereafter, execution proceedings were initiated and the mortgaged property which is jointly owned by the appellant and respondents Nos.2 to 6 was directed to be auctioned. The present appellant filed an application under section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which was dismissed, vide the impugned order. It is contended by the appellant that he was minor at the time of the execution of the mortgage deed in favour of M.C.B., which was, therefore, void hence his property could not be put to auction. It is further contended that the judgment and decree has been obtained by fraud committed by the respondents.

3. Learned counsel for the respondent-Bank has controverted the contentions raised on behalf of the appellant.

4. The appellant had invoked the jurisdiction of the Banking Court under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, whereunder on an application by a defendant the Banking Court may set aside a decree passed upon the failure of such defendant to move an application for leave to defend within the prescribed period, in the eventuality that the summons were not served or there were other sufficient grounds for the failure to file an application for leave to defend.

5. In the instant case, the leave application was in fact filed by the defendants including the appellant which failed to find favour. A perusal of the application filed under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 by the appellant before the Banking Court would show that there is no allegation raised that the summonses were not served or there was any other reason or cause for non-filing of an application for leave to defend which in fact had been filed. The plea of minority and conspiracy hatched by respondents Nos.1 to 7 with the bank to deprive the appellant of his landed property has been raised which undoubtedly are beyond the ambit of section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and it alone is a sufficient ground for dismissal of the said application and this appeal.

6. Be that as it may, it is evident from the record that the mortgage deed, which is a registered document, was signed by the appellant, which signatures have not been denied. There is an identity card available with the bank showing the year of birth of the appellant as 1977, whereby, he was an adult on 4-3-1996 when the loan was obtained and the property was mortgaged. The Registry Moharrar of the Sub-Registrar was also summoned by the Banking Court, who produced copy of the identity card of the appellant, which was the same as one available with the bank. The appellant has not produced any identity card showing a different date of birth during the course or proceedings before the Banking Court. Thus the contentions of the appellant that he was a minor at the time of the execution of the registered mortgaged deed cannot be accepted.

7. Even otherwise, the case was contested on merits including the appellant by filing an application for leave to defend, signatures thereupon have not been disputed by the appellant. The matter was adjudicated upon and has attained finality. No sustainable ground has been canvassed before us so as to persuade us to reopen the matter. The application filed by the appellant before the Banking Court appears to be dilatory tactics employed to frustrate the execution of the decree passed in favour of the respondent- Bank. In view of the above, this appeal has no force and is dismissed. No order as to cost. M.B.A./B-66/L Appeal dismissed.