2006 PLP 220 (CLD)

Appellant/judgment-debtor, through the present appeal, has assailed the judgment and decree dated 31-5-2005, whereby the learned Judge Banking Court, after finding that appellant's application for leave to defend the suit is barred by time, dismissed the same and consequently passed a decree for a sum of Rs.3,25,066.67, with costs of funds and costs, favouring the respondent-Bank.

2. Facts of the case, in brief, are that the appellant, on 19-9-2000, filed the suit for rendition of accounts, against the respondent-Bank (Muhammad Anwar v. Citibank etc.), before the learned Judge Banking Court. Subsequently, the respondent-Bank also filed the suit for recovery of Rs.3,25,066.67, against the appellant (Citibank v. Muhammad Anwar), before the said Court, inter alia, pleading that the appellant availed a financial facility of Rs.3,55,000; he executed charge documents favouring the bank and also mortgaged his property, as mentioned in para.4 of the plaint, however, later on he failed to liquidate his liabilities, which necessitated the filing of the suit. In Bank's suit the learned Judge Banking Court issued notices to the appellant, as required under section 9(3) of Act XV of 1997. The appellant, on 20-9-2001; filed the application seeking leave to defend the suit. The learned Judge Banking Court, after finding that appellant's leave application is barred by time, proceeded to dismiss the same and consequently passed a decree for the recovery of Rs.3,25,066.67, with costs of funds and costs of the suit favouring the respondent-Bank, vide impugned judgment and decree dated 31-5-2005, hence the present appeal.

3. Learned counsel for the appellant, while admitting that the publications in two newspapers were made on 8-6-2001 and 18-6-2001, has stated that as soon as the appellant came into knowledge of the pendency of the suit, he immediately filed the application for leave to defend the suit, which is within time. He has relied upon Tahir v. Union Bank Limited through Branch Manager and another 2005 CLD

930. Conversely, the learned counsel for the respondent-Bank has submitted that the application for leave to defend the suit was required to be filed within 21 days as per section 10 of Act XV of 1997 and as the application was filed beyond the period of 21 days from the date of the publication in the newspapers, the same was grossly barred by time. He has added that the proclamation in the newspaper is valid service. He has referred to the judgments reported as M. Afzal v. Allied Bank of Pakistan Ltd. and another 2003 CLD 765 and Khawaja Muhammad Bilal v. Union Bank Limited through Branch Manager 2004 CLD 1555. He has further submitted that leave application filed by the appellant lacks requirement of section 10(3)(4) and (5) of the Ordinance, 2001, therefore, the same deserves to be dismissed on this ground also. He has relied upon Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Limited, Islamabad v. Mohib Textile Mills Limited Lahore and 3 others 2002 CLD 1170.

4. We have heard the learned counsel for the parties and examined the summoned record. We find from the record that when respondent's bank presented the plaint before the learned Banking Court, it issued summons to the appellant through all the modes of service, as prescribed under section 9(3) of Act XV of 1997. Admittedly, the summonses were published in one English language newspaper (News) on 18-6-2001 and one Urdu language (Awam) on 8-6-2001.. Further admittedly, the appellant filed the application for leave to defend the suit on 20-9-2001. Section 10 of Act XV of 1997, inter alia, provides that application for leave to defend the suit is to be filed within 21 days if a serious and bona fide dispute is raised thereby, whereas in the instant case, the appellant filed the leave application after the expiry of more than three months from the date of the publication of the summons in the newspapers. Learned counsel for the respondent has rightly relied upon the cases of M. Afzal and Kh. Muhammad Bilal (ibid), wherein it has been held by this Court, while relying upon the case of Messrs Ahmad Autos and another v. Allied Bank of Pakistan PLD 1990 SC 497, that service upon the defendant through proclamation in the newspaper is valid service. The appellant was served, as required under the law, on 8-6-2001 or at the maximum on 18-6-2001, when the summonses were published in the newspapers and, thus, he was required to file the application for leave to defend the suit within 21 days from 8-6-2001, while in the instant case, leave application was filed on 20-9-2001, therefore, the same was barred by time. The learned Judge Banking Court committed no illegality, while holding that application for leave to defend the suit is barred by time and no application for condonation of delay has been filed, therefore, the same deserves dismissal. As regards the judgment relied A upon by the learned counsel for the appellant, the principles of law laid therein have no application to the facts of the present case, thus, the same is of no avail to the appellant.

5. In the above perspective, we have examined the impugned judgment and find that the same does not suffer from any illegality and, thus, no interference is called for by this Court in the impugned judgment, which is hereby maintained.

6. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs. M.H./M-3/L???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.