2005 PLP 396 (CLD)

‑‑‑‑S. 12‑‑‑Ex parte decree, setting aside of‑‑‑Imposition of condition‑‑‑Deposit of costs‑‑‑Extension of time‑‑‑Grievance of defendant was that Banking Court had set aside ex parte decree passed in favour of bank, subject to deposit of Rs.50,000‑‑‑Validity‑‑‑Court at the time of setting aside ex parte decree, had ample power under S.12 of Financial Institutions (Recovery of Finances) Ordinance, 2001, to impose condition‑‑‑Banking Court was justified in exercising its discretion according to law and there was no defect in the order calling for interference‑‑‑Time fixed by Banking Court for deposit of costs had already elapsed, therefore, High Court in exercise of appellate jurisdiction granted 10 days time for deposit of costs fixed by Banking Court‑‑‑Appeal was dismissed accordingly. Muhammad Asghar Khan for Appellants. Ch. Farrukh Mehmood Sulehria for Respondents. The respondent‑Bank, brought a suit for the recovery of Rs.16,58,828.52 against the appellants, which was ex parte decreed on 16‑9‑2003. The appellants in order to seek the setting aside of the ex parte decree, moved an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was contested by the respondent, but has been allowed by the learned Banking Court through the impugned order, subject to the condition of the deposit of Rs.5,00,000 with the Court. It is the condition, which has been challenged through this appeal.

2. Learned counsel for the appellants contends that, there is no provision in the law, under which a condition could have been imposed; besides that the condition is harsh and in case, the appellants are unable to fulfil the same, the decree for the whole amount, which is illegally claimed by the respondent, shall remain sustained and this shall be against the basic principle of law, that no one shall be condemned unheard.

3. We have heard the learned counsel for the parties and find that, according to the provisions of section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the Court at the time of setting aside the ex parte decree, had ample power to impose the condition. The question, whether the condition is reasonable or otherwise, is very much spelt out from the application of the appellants themselves, in which, they have admitted the liability of Rs.5,80,

744. Obviously in such circumstances, the learned Court below was justified in exercising its discretion according to the law and there is no amiss or defect in the impugned order calling for interference. However, the amount had to be deposited within 10 days and now the time has elapsed; the appellants have moved an application for the extension of time, which is still pending. Anyhow, to avoid any technical hitch, we, in exercise of our appellate jurisdiction, grant the appellants further 10 days time from today, to make the deposit, as directed by the Banking Court, failing which, this appeal shall be deemed to have been dismissed. Disposed of accordingly. M. H./C‑19/L Appeal dismissed.