2007 PLP 1552 (CLD)

ORIDER Appellant's request for a finance facility under the Prime Minister's Public Transport Scheme, was accepted by the respondent and resultantly a sanction letter was issued. Appellant on deposit of 10% of amount of equity, was disbursed on 2-2-1993 a financial assistance, for purchase of 10 (ten) units of Toyota Coasters (Deluxe)/26 seater vehicle.

2. On failure of the appellant to perform his legal and contractual obligation, the respondent-Bank filed a suit for recovery of Rs. 1,14,48,225 with mark-upon the Banking Court No.IV, Lahore on 1-10-1998. The suit of the respondent was decreed by the learned. Banking Court vide judgment and decree dated 12-11-1998. Appellant moved an application before the Banking Court, under section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 on 27-1-2003 for setting aside the decree dated 12-1 1-1998. The application was .contested by the respondent, filed written reply and raised a number of preliminary objections, including the objection of limitation. Learned Banking Court vide ardor dated 6-6-2003, dismissed the application on the question of limitation, hence this appeal.

3. Learned counsel for the appellant has contended that service upon the appellant way effected at the address of 18-A/E-1, Gulberg-III, Lahore, while at the time of filing of the suit, the appellant was residing at village Tibbi Ludden, Tehsil Jampur; District Rajanpur appellant came to know about the decree on 25-1-2003. when certain proceedings were taken regarding his agricultural land. It was then submitted that the appellant remained unaware of the filing of the suit and the subsequent proceedings. It was also contended by the appellant's learned counsel. That decree-holder was well aware of the present address of the appellant and suing the appellant at former address was a deliberate attempt to procure ex parts decree. Learned counsel submitted that absence of the appellant was neither deliberate for willful. Appellant has been condemned unheard and impugned order lead been passed, ignoring the settled principles of law and without proper application of judicial mind. It was submitted on merit that respondent promised that 10 Coasters (new- models) world be delivered and replaced with vehicles earlier delivered to appellant, which were in fact booked by some other customers. After taking delivery of vehicles, the respondent backed out from his promise. After taking delivery of vehicles, the respondent has no right to claim recovery of amount of finance.

4. We have heard .learned counsel for the appellant and record perused.

5. The service upon the appellant was ordered through all modes, prescribed by law i.e. section 9(3) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (now repealed). Notices through 'citation wee e published in daily "Khabrain" in its print dated 11-10-1998 and daily "Frontier Post" in its print dated 18-10-1998. The service upon the appellant was effected on file address, which the appellant had himself provided to the decree-holder Bank and finds mention in the loan documents. There is not a single document, which reflects any other address of appellant except the one, on which the appellant was served. Appellant has not placed on record any document to prove that creditor Bank was informed about the change of address. Application under section 12 of Ordinance, 2001, for setting aside the decree dated 12-11-1998, was also not supported with any material to show that the appellant had informed about the charge in his address to the respondent. Appellant was served on his last known address. The omission on the part of the appellant to keep the creditors abreast of change in his address is fatal for appellant according to Rule "Debtor must seek the Creditor" was bound to intimate the creditor about change in his address, if any. The appellant is to suffer for this omission.

6. The appellant filed the application for setting aside the decree, after the lapse of a period of 4 years. Another application under section 5 of the Limitation Act, was also moved for the condonation of delay in filing the application under section 12 of the Ordinance, 2001. The application was lacking necessary information about the date of the knowledge of decree. Each day's delay needs its explanation, which is lacking in the instant case. The agricultural property of the appellant was attached and the appellant has not approached the Court within one month of the attachment of the property. It is not possible that a land owner; who is cultivating land and resides in the village, remains unaware of the order of attachment of his land.

7. The impugned order passed by the learned Banking Court is devoid of any illegality or legal infirmity. It does not call for any interference.

8. For the foregoing this appeal has no force and is accordingly dismissed in limine. Office is directed to remit back, the record of Banking Court No.IV, Lahore. F.B./N-63/L Appeal dismissed.