2021 PLP 679 (CLD)

Concise facts of this appeal are that the respondent No. 1 filed suit for recovery of Rs.471982/- on 10.10.2009. The appellant filed an application for Leave to appear and defend the suit which was duly contested by the plaintiff/respondent. After hearing the arguments, appellant's application was dismissed by the learned Banking Judge vide order dated 19.02.2015. Feeling aggrieved of order dated 19.02.2016 of learned Banking Court, the appellant has preferred instant appeal and challenged the validity of the impugned order.

2. Learned counsel for the appellant/defendant submits that the application for leave to appear and defend the suit was filed within time because the appellant/defendant got the knowledge of the pendency of suit on 03.02.2010 while the learned Banking Court has misread and misconstrued the record while passing the impugned order. Therefore the same is not sustainable at law and liable to be set aside. Learned counsel for the respondent/plaintiff fully supports the impugned order. We have heard the arguments of the learned counsel for the parties and have minutely gone through the record as well as the impugned order.

3. Perusal of the record reveals that after the filing of suit by the respondent/plaintiff on 10.10.2009, summons in Form 4, Appendix (B) of the First Schedule to the Code of Civil Procedure 1908 in terms of section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were issued to the appellant/defendant on 25.11.2009 for 22.12.2009. The appellant/defendant was served through courier service on 05.12.2009, through registered post AD on 05.12.2009 and through Bailiff on 09.12.2009. Hence, the appellant/defendant was duly served through at least three modes prescribed under the law and Wakalatnama on behalf of the appellant/defendant was also filed on 22.12.2009. Thereafter, the appellant/defendant filed an application for leave to appear and defend the suit on 02.03.2010 which was hopelessly barred by time because the same was not filed within the statutory period of 30 days from the date of knowledge, enumerated in section 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001. As regard the submission of learned counsel for the appellant/defendant regarding the date of knowledge of the pendency of suit on 03.02.2010, it is relevant to reproduce the para 1 of application for leave to appear and defend the suit as under; "

1. That the plaintiff has not complied with the modes of service prescribed under the law. The respondent came to the notice of titled suit on

, therefore the application has been filed within time." Hence, the date of knowledge is not mentioned in the application for leave to appear and defend the suit which is written in this appeal and same can be taken as an afterthought, just to remove legal lacuna. Even otherwise, the appellant/defendant has neither mentioned the mode/ source of his knowledge about the pending suit nor has made any allegation regarding address in the application for leave to appear and defend the suit.

4. For the foregoing reasons, we are of the view that the learned Banking Court has exhaustively dealt with each and every point alleged before it and we see no ground to interfere with well-reasoned order. Consequently, finding no merit in this appeal, the same is dismissed. KMZ/M-153/L Appeal dismissed.