1986 PLP 1965 (MLD)

P L D 1984 Kar. 252 ref. (c) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑ ‑‑Ss. 6 & 7‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr. 2 & 3‑‑Limitation Act (IX of 1908), S.5‑‑Application for leave to appear and defend suit‑‑Filing of‑‑Limitation for‑‑Starting point‑‑Limitation period of ten days for filing application for leave to appear and defend suit by defendant, held, would be computed from date of publication of summons in newspaper and not from date of knowledge of such publication‑‑Defendant is required to explain delay of each and every day in accordance with law. Mamnoonul Hassan for Plaintiff. Mohsin Tayabally for Defendants Nos. 1, 2, 4 and

5. Defendant No.3 (absent). Mumtaz for Defendants Nos.6 to

11. The plaintiffs have filed this suit for recovery of Rs. 75,26,372.09 under the Banking Companies (Recovery of Loans) Ordinance, 1979 against the defendants Nos.l to 5 and ordinary suit against defendants Nos.6 to

11. The claim against the defendants Nos.6 to 11 is only to the extent of Rs. 24 lacs alleged to be the value of the goods pledged with the Bank and stored with defendant No.6 of which defendants Nos.7 to 11 are the partners. According to the plaintiffs the defendants Nos.6 to 11 in collusion with the defendants Nos. 2 to 5 removed the pledged goods from the godown for which a separate criminal proceeding is pending. The suit was filed on 17‑10‑1984 and summonses to the defendants Nos. l to 5 were issued as provided by the Banking Companies (Recovery of Loans) Ordinance, 1979 namely, through the Bailiff, by registered post A/D and by publication in the newspaper viz Morning News dated 30‑11‑1984. The Advocate for defendants Nos.l to 5 filed vakalatnama on their behalf on 17‑12‑1984 and filed application under section 5 of the Limitation Act and application under Order XXXVII, Rule 2 (2), C.P.C. on 7‑1‑1985. The application under Order XXXVII, Rule 2(2) for leave to appear and defend the suit can be entertained if it has been filed within time viz. within ten days from the date of service of summons. If it has been filed beyond the period of 10 days then it can be entertained on condonation of delay under section 5 of the limitation Act. In application under section 5 of the Limitation Act these defendants have alleged that on or about 15‑12‑1984 one Mr. Munir of Central Cotton Mills Ltd. who is a relative of the defendant No.2 inquired from him about the suit filed by the plaintiffs. He also revealed that he had seen a publication of some notice in the Morning News. On this information the defendant No.2 started tracing out the matter. He engaged counsel immediately who applied for obtaining the copy of the plaint and documents on 17‑12‑1984 which were delivered to him on 5‑1‑1985 and finally on 7‑1‑1985 these applications for leave to appeal and defend the suit were filed. This application under section 5 of the Limitation Act is supported by the affidavits of the defendants No.3, 4 and

5. Strangely enough the defendant No.2 has not filed affidavit in support of this application. He has filed affidavit in support of application under Order XXXVII, Rule 2(2) in which he has made an averment that he has read the application under section 5 of the Limitation Act and application under Order XXXVII, Rule 2, C.P.C. and states that all averments made therein are true to his knowledge. He has avoided to affirm the facts stated in the application under section 5 of the Limitation Act in clear and unequivocal terms. This affidavit certainly suffers from technical defects. Inasmuch as the, information received from Mr. Munir has not been verified to have been received through him which according to him is correct. Besides this technical objection that can be raised, and is sufficient to discard his affidavit, the affidavit of Munir has not been filed to support the averment that had informed the defendant No.2 about the publication of summons in the Morning News. These defendants have failed to establish that they acquired knowledge of the publication of the summons on 30‑11‑1984. After the alleged knowledge was acquired by the defendant No.2 on 15‑12‑1984 he engaged the counsel who filed his power on 17‑12‑1984. There is a letter of their Advocate dated 16‑12‑1984 addressed to the Additional Registrar requesting that the copy of the plaint be delivered to him. Thereafter, it seems that no steps were taken by these defendants to obtain the copy of the plaint and its annexures, and the same were received by their Advocate on 7‑1‑1985. Usually it is the practice o the Court that if any Advocate representing the defendant files power and requests for copy of the plaint, the same is delivered immediately. There has been a delay of about 38 days which remains unexplained even after the knowledge that the suit has been filed and summons has been published. Mr. Mohsin Tayebally, the learned counsel for the defendants has referred to P L D 1984 Kar. 252 where it was held that as the summons served on the defendant did not carry a copy of the plaint, therefore, the service was not held to be proper. Relying on this observation the learned counsel contended that as the summons was published and did not carry the contents of the plaint, it cannot be treated as a proper service. The contention is misconceived. The referred ruling relates to a suit which was between private parties filed under Order XXXVII, C.P.C. The summonses were sent by registered post, and copy of the plaint was not annexed with it, but an endorsement was made that copy of the plaint has been supplied to the defendant earlier. The summons was served by registered post and by publication. On these facts, the afore-stated observation was made in view of the provision of Order XXXVII, Rule 2 which requires the summons in a prescribed form to be served on the defendant. In the present case, the suit has been filed by a bank under the provision of Banking Companies (Recovery of Loans) Ordinance, 1979 which provides a completely different procedure for service of summons on the defendant. It is not alleged that these provisions have not been followed, in serving the summons on the defendants. Therefore, the judgment cited by the learned counsel for these defendants is completely distinguishable and not applicable at all. It is pertinent to make' clear that when summons is served by publication in a newspaper it is not possible to annex a copy of the plaint with it nor it is practicable to publish the entire plaint. In these circumstances in a suit under Order XXXVII, C.P.C. if the summons published in the newspaper describes the claim in suit and is in the prescribed form requiring the defendant to seek leave to appear and defend the suit within ten days of service of summons and consequences of failure to do so, are also mentioned, then such publication, particularly in a suit under the Banking Companies (Recovery of Loans) Ordinance 1979 shall be deemed to be a proper and valid service on the defendant. In view of the facts and circumstances stated above, it was the duty of the defendants to have explained the delay of each and every day, which they have completely failed to do. The application for leave to appear and defend the suit should be filed within 10 days from the date of service of summons. In case of delay the defendant can apply for condonation of delay as provided by section 5 of the Limitation Act. The period of limitation for filing application cannot be computed from the date of knowledge of the publication of summons in a newspaper. As the defendants 1 to 5 have faded to make out sufficient cause for not making the application within the period of limitation, their application under section 5 of the Limitation Act is dismissed. Consequently all other applications under Order XXXVII, Rule 2, C.P.C. are dismissed as barred by time. As the defendants Nos.1 to 5 have not been able to obtain leave to appear and defend the suit, in terms of Order XXXVII Rule 2(2), C.P.C. the allegations in the plaint shall be deemed to be admitted and the plaintiff is entitled to a decree for the principal amount, interest and cost. The suit is, therefore, decreed against defendants Nos. 1, 2. 3, 4 and 5 jointly and severally for the sum of Rs.75,26,379.09 with interest at 14% per annum with quarterly rent from 1‑10‑1984 till realization and costs of the suit. The suit against defendants Nos. 5 to 11 shall be determined in due course in accordance with law. The suit is fixed on 16‑2‑1986 for settlement of issues in respect of the defendants 6 to

11. H.B.T. Suit decreed.