2021 PLP 1212 (CLD)

ABID HUSSAIN CHATTHA, J.

Through this Appeal, filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellants have challenged the validity of the Judgment and Decree dated 29.03.2018 passed by the Judge Banking Court-II, Lahore (the "Banking Court"), whereby, the suit filed by the Respondent was decreed.

2. Precise facts of the case are that the Respondent filed a suit against the Appellants for the recovery of Rs.44,477,282/-. The Appellants appeared and filed application under section 10 of the Ordinance for grant of unconditional leave to appear and defend the suit (the "PLA"), which was rejected and the said suit was decreed vide Judgment and Decree dated 29.03.2018 against the Appellants to the tune of Rs.38,910,793/- severally and jointly with cost of the suit and cost of funds from 01.09.2015 to be determined under section 3 of the Ordinance. The claim of the Respondent relating to lease rentals beyond the date of expiry of the lease agreement to the tune of Rs.1,045,445/-, late payment of charges of Rs.2,618,976/2 and other charges of Rs.24,733/- were declined by the Banking Court. Learned counsel for the Appellants, inter alia, contended that the impugned Judgment and Decree is against the law and facts; that the Banking Court has passed the impugned Judgment and Decree in a hasty manner without applying its judicial mind; that the documents on record have not been duly taken into consideration; there is misreading and non-reading of material available on record; that the impugned Judgment and Decree is sketchy in nature; that the Banking Court has failed to take into consideration the fact that the matter required evidence by both the parties, as such, the PLA should have been allowed. Learned counsel was required to satisfy us under section 22(3) of the Ordinance read with Order XLI, Rule 11 of the Civil Procedure Code, 1908 (the "C.P.C.") regarding admission of the Appeal.

3. We have heard the arguments of the learned counsel for the Appellants and perused the record appended with the Appeal in general and the impugned Judgment and Decree, in particular. We have also noticed that the memorandum of Appeal consists of twenty five pages containing presumptive, superficial, hypothetical and imaginary grounds that could be conceivable under the law. Almost anything and everything has been stated except any substantive ground that may require determination, ignoring that the determination of the amount due, is in essence, the true purpose, intent and reason for the enactment of the Ordinance as capsulated in sections 9(3) and 10(4) of the Ordinance. It is on account of this deliberate and persistent misuse of right conferred under the Ordinance and blatant abuse of the process of the law and Court that section 10(5) of the Ordinance was inserted in the Ordinance through the Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016) which reads as under:- "Where Application for leave to defend submitted under the preceding subsection is found to be materially incorrect at any stage of the proceedings, the defendant shall lose the right to defence and shall also be liable to pay penalty of not less than five percent of the amount of the claim, unless the defendant can establish that incorrect information was submitted as a result of a bona fide mistake."

4. We have cited the above provision only to highlight that generally in defence of a banking recovery suit, it has become common and customary to present a volumous PLA, raising all kinds of settled and conceivable grounds alien to record of the suit to burden the Courts with the only objective to gain time and choke the system of administration of justice based on fair play and equity. This trend ought to be discouraged because in the presence of such perception, the customers with bona fide disputes also suffer and generally the system of administration of justice fails to deliver its true and real objective.

5. In view of the above perspective, the impugned Judgment was read in the presence of the learned counsel for the Appellant and he was asked to focus on the key issue to satisfy us as to why this Appeal ought to be admitted at all, or in part or whole as required by law. The learned counsel stated that before passing the impugned Judgment and Decree, the Banking Court should have decided the three applications filed by the Appellants that are (i) Application under Order XI, Rules 12, 14 and 16 read with section 151, C.P.C. praying for directing the Respondent, inter alia, to produce original finance and charge creating documents including but not limited to the Agreement of Hypothecation of Machinery, Forms 10 and Certificate of registration of mortgage etc.; (ii) application under Articles 59 and 84 of Qanunn- e-Shahadat Order, 1984 for referring the documents attached with the Plaint to some handwriting expert to ascertain the genuineness of signatures of Appellants etc. on the documents attached with the Plaint; and (iii) Application for seeking appointment of Chartered Accountant as Amicus-Curiae under section 5(8) of the Ordinance read with section 151 of the C.P.C.

6. Regarding the aforesaid contentions, suffice is to hold that it is trite law that aforesaid applications were not maintainable before the Banking Court before the grant of the PLA. In fact, such pleas could have been taken in the PLA itself. Henceforth, the Banking Court rightly did not consider the same. Notwithstanding our observations contained above, we have read the grounds of Appeal in totality and are of the view that they are unsubstantiated, general, vague and bald accusations not supported with any cogent prima facie evidence or material, which may require issuance of notice to the Respondent or summon entire record or admit this Appeal in whole or in part. Retaining this Appeal on the docket of the Court shall only burden the Court, postpone a writing on the wall and bring misery for the contesting parties, at least, for the Decree Holder. Speedy and efficacious justice is a fundamental pillar of the rule of law. This is the command of the law and this Court is armed with necessary procedural laws in this regard.

7. Section 22(3) of the Ordinance reads as under:- "The High Court shall at the stage of admission of the Appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the Appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the Appellant: Provided that the admission of the Appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the Appellant deposits in cash with the High Court an amount equivalent to the decreetal amount inclusive of costs, or in the case of an Appeal other than an Appeal against an interim Decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decreetal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly." Order XLI, Rule 11 of the C.P.C. is reproduced as follows:- "Power to dismiss Appeal without sending notice to lower Court.

(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the Appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the Appeal without sending notice to the Court from whose Decree the Appeal is preferred and without serving notice on the Respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the Appellant does not appear when the Appeal is called on for hearing, the Court may make an order that the Appeal be dismissed. (3) The dismissal of an Appeal under this rule shall be notified to the Court from whose Decree the Appeal is preferred."

8. This appeal is at limine stage and in view of the afore discussion, it is a fit case to apply doctrine of 'Limine Control' expressively expounded in the reported case titled, Asif Saleem v. Chairman Bog University of Lahore and others, PLD 2019 Lahore 407, relevant portion of which is reproduced as under:- "In appellate domain the honorable Superior Courts have also applied doctrine of `Limine control' and have dismissed appeals in limine. Following are certain instances:- i. Regular First Appeal could be dismissed in limine without summoning the record. (2008 SCMR 635); ii. Order XLI, rule 11 of the Civil Procedure Code, 1908 empowers the Appellate Court to dismiss the appeal without sending notice to the lower Court for transmission of record and without notice to the Respondent. (2006 SCMR 895); iii. Where facts narrated in impugned Judgment were not disputed and appeal could be decided on basis of available record, then summoning of record from Trial Court would not be necessary. (PLD 2004 SC 10); iv. Court may dismiss appeal in limine where the same on the face of it is barred by time, barred by any law and disputed questions of law and facts are not involved. (2009 SCMR 1790); v. It is not an inflexible rule of practice that the first appeal from an order should be invariably admitted which in no case can be dismissed in limine. Depending upon the facts and circumstances of each case and the statute under which an appeal is filed it is difficult to lay down an absolute rule of practice for all cases. (PLD 2002 SC 720); vi. Time barred appeal was dismissed in limine on ground of limitation. The order was upheld by Honorable Supreme Court. (2001 SCMR 2016); vii/ Court can dismiss appeal in limine where case is of a simple nature and no question of law or fact is involved for determination. (1998 SCMR 1970)."

9. Accordingly, no ground of Appeal is specific in nature and character which requires to be adjudicated, hence we fully agree with the findings of the Banking Court and do not find any illegality or perversity in the impugned Judgment and Decree which has been passed in consonance with the spirit of law, hence, does not call for interference by us.

10. Keeping in view the facts and circumstances of the case, this appeal is dismissed in limine under section 22(3) of the Ordinance read with Order XLI, Rule 11, C.P.C. being. devoid of any merit with no order as to cost. MWA/C-8/Lah. Appeal dismissed.