2003 PLP 359 (CLD)

Shahid Ikram Siddiqui for Respondent. Date of hearing: 29th July, 2002. MIAN HAMID FAROOQ. J.‑‑‑This first appeal filed by the appellant/judgment‑debtor, under section 9 of the Banking Tribunals Ordinance, 1984, proceeds against a portion of the decree dated 30‑11‑1995, whereby the then Banking Tribunal, while decreeing the respondent's suit, also awarded the costs to the respondent‑bank.

2. The appeal is, admittedly, barred by time, as such the appellant has instituted an application under section 5 of the Limitation Act (C.M. No.1‑C of 1996) seeking condonation of delay. The ground for condonation of delay, as mentioned in the aforenoted application, is that the certified copy of the judgment and decree was delivered to the appellant with the delay of three days and as such the appeal could not be filed within the prescribed period of limitation.

3. Facts leading to the filing of the present appeal are that pursuant to the filing of a suit for the recovery of Rs.7,15,541, by the respondent‑ Bank, before the then learned Banking Tribunal, summons, as required under the law, were issued and consequent thereto the appellant filed reply to the show‑cause notice, wherein he admitted the liability to the extent of Rs.5,45,165 stating therein that he had already paid a sum of Rs.45,165 and that only Rs.5 lac are outstanding against the appellant. As the liability was admitted, therefore, the learned Banking Tribunal passed a decree for the recovery of Rs.5 lac in favour of the respondent‑Bank with costs vide judgment and decree dated 30‑11‑1995, which has been called in question by the appellant through the filing of the instant appeal only challenging a portion of the decree, which relates to the awarding of the amount of costs to the respondent‑Bank.

4. Learned counsel for the appellant has contended that the impugned judgment, .to the extent of imposition of costs upon the appellant, is not sustainable in law, thus, the same deserves to be set aside. While arguing the application under section 5 of the Limitation Act, the learned counsel for the appellant has contended that there are "sufficient grounds" for not preferring the appeal within the stipulated period, thus, there are "sufficient causes", for the condonation of delay for filing the appeal beyond the period of limitation. Conversely, the learned counsel representing the respondent‑Bank has supported the impugned judgment and opposed the contentions raised by the learned counsel for the appellant.

5. Admittedly, according to the own showings of the appellant, the present appeal is barred by three days. The period of limitation for filing an appeal under section 9 of the Banking Tribunals Ordinance, 1984, is 30 days from the date of decree. Even if the period consumed for obtaining the certified copy of the impugned judgment and decree is executed even then the appeal has been preferred after the expiry of period of limitation and is barred by at least 3 days.

6. The prime question, which has arisen for determination by this Court, is as to whether section 5 of the Limitation Act is applicable to the facts and circumstances of the present case. Section 29 of the Limitation Act provides that where in a special law or local law different periods of limitation have been prescribed, the provisions of section 5 of the Limitation Act would not be applicable. Needless to mention that under the ordinary law for filing regular first appeal before this Court, a period of 90 days has been prescribed, while the present case is covered by the provisions of the Banking Tribunals Ordinance, 1984, which is a special law, as noted above, and prescribes a period of 30 days for filing first appeal before this Court against the decree passed by the Banking Tribunal. From the above narrative it is, thus, clear that the special law has provided a different period of limitation than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances.

7. In the above perspective, without adverting to the merits of the application in hand, the same on the legal plain is not maintainable. Provisions of section 5 of the Limitation Act are not applicable in the present case in view of the provisions of section 29(2) of the Limitation Act, as per law laid down by this Court in Bashir Ahmad and others v. Messrs Habib Bank Ltd. (1990 CLC 1105) and by the Honourable Supreme Court in a case reported as Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). Being guided by the aforesaid law declared, this application (C.M.No.1‑C/1996), which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable, hence dismissed.

8. Even otherwise, the awarding of costs is within the discretion of the Court and we find that while decreeing the suit the learned Banking Tribunal, in exercise of its discretionary powers, has awarded the costs. We are of the view that the learned Banking Tribunal did not exercise the discretion in an arbitrary or in a fanciful manner, thus, we are not inclined to interfere with the discretionary powers exercised by the learned Banking Tribunal.

9. The impugned judgment and decree was passed as far back as on 30‑11‑1995 and we have been informed that uptil now no execution application has been filed even after the lapse of more than six years. It is evident from the record that this Court did not at all stay the execution of the said decree. Be that as it may, now the impugned decree has become inexecutable and on this count too, we are not inclined to interfere in the same.

10. Seeing from any angle, the appellant has failed to make out any case warranting the interference by this Court in the impugned judgment and decree, thus the same is maintained. Upshot of the above discussion is that the present appeal is barred by time and also devoid of merits, thus, we are constrained to dismiss the same on both the counts, with no order as to costs. H.B.T./S‑575/L Appeal dismissed.