2002 PLP 476 (SCMR)

MUNIR A. SHEIKH, J.

In the suit filed by the respondent-Bank for the recovery of loan advanced to the petitioners, the petitioners filed an application under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 on 26-6-1999 for permission to appear and defend the suit. It was resisted by the respondent-bank on the ground that the same had been made beyond period of 21 days prescribed by law, therefore, was liable to be dismissed.

2. Admittedly, no application was made by the petitioner for condonation of delay under section 5 of the Limitation Act, for their case was that the application was not barred by time as the' same had been filed within the prescribed period of limitation of 21 days from the date of service through process-server of the Court on 15-6-2000. The Banking Court held that the petitioners were served through publication of notice in the newspaper on 2-6-2000 which was one of the prescribed modes of service which was valid for the purpose of the proceedings under the said Ordinance, therefore, the period of limitation was to start from the said date as such, the application filed by them was barred by time. It was rejected and the suit of the respondent-bank decreed through judgment dated 6-3-2000. The petitioners filed appeal before the High Court which has been dismissed by a Division Bench of the said Court through the impugned judgment dated 19-9-2000 against which leave to appeal has been sought.

3. Learned counsel for the respondent-bank was issued notice who has appeared today. He has brought to our notice that on 7-6-1999, power-of- attorney/Wakalatnamas were executed by petitioners Nos.2, 4, 5 and 7 in favour of their counsel who submitted application for grant of permission to appear and defend that suit on 26-6-1999. There is no explanation as to why the delay was made in making the application beyond the period of limitation. Copies of the said Power-of-Attorney/Wakalatnamas have been placed on the record, the correctness of which has not been denied by the learned counsel for the petitioners.

4. Learned counsel for the petitioners submitted that no Wakalatnama was given by petitioners Nos. l, 3 and

6. It may be observed that petitioner No. l is the Company of which petitioner No.2 is the Managing Director who was served, therefore, petitioner No. l shall be deemed to have been served through petitioner No.2. Petitioners Nos.3 and 6 are the Directors of the Company whereas petitioner No.3 was also a guarantor for the payment of the loan amount in dispute. Even if no Wakalatnama had been given by petitioners Nos. l, 3 and 6, the same would not in any manner advance the case of the petitioners, for their service having been effected on 2-6-2000 through publication, therefore, the period of limitation of 21 days started running against them also as such, they should have made application within time.

5. Learned counsel for the petitioners submitted that since in this case, the petitioners were served through three modes in the following manner (1) through publication in the newspaper on 2-6-2000, (2) allegedly through registered post acknowledgement due on 1-6-2000 and (3) through bailiff of the Court on 15-6-2000, therefore, for the purpose of computing the period of limitation, the service effected through Bailiff of the Court should be taken into consideration and not the other as-the same is comparatively more valid having been made in the prescribed mode by delivery of copy of the plaint in such suit whereas through other modes, the copies of the plaints were not delivered. The argument has no force. It has been declared under section 9(3) of the Ordinance that service in any of the modes shall be deemed to be valid service for the purpose of the Ordinance, therefore, the petitioners could not argue that the latest service mode of the three modes should be taken into consideration for computing -the period of limitation and not the other. The view finds support from the judgments reported as Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others (1999 SCMR 2353) and Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497).

6. In this view of the matter, the impugned judgments passed by the Courts below did not suffer from any illegality, therefore, this petition has no substance which is accordingly dismissed and leave to appeal refused. Q.M.H./M.A.K./S-128/S Petition dismissed.