2002 PLP 423 (CLD)

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑ ‑‑‑‑S.12‑‑‑Recovery of Bank loan‑‑‑Ex parte decree, setting aside of‑‑‑Borrower contested the suit on all grounds and denied claim of Bank‑‑‑Evidence of Bank was being recorded when on one date due to absence of the borrower and his counsel, the Banking Court passed ex parte decree‑‑‑Application to set aside the said decree was dismissed by the Banking Court-‑‑Validity‑‑‑High Court set aside the order passed by the Banking Court on payment of Rs. 5,000 as costs and remanded the case to the Banking Court for decision afresh. Sultan Ahmad Jamshaid for Appellant. Aurangzeb Khan for Respondents. Date of hearing: 18th October, 2001. IJAZ‑UL‑HASSAN, J.‑‑‑Malik Muhammad Ayaz appellant has preferred instant appeal against Messrs United Bank Limited, Karachi through its Manager Pine View Road Branch, Abbottabad and 12 others, respondents, to call in question the legality and correctness of order dated 14‑1‑2000 passed by learned Judge Banking Court, Hazara at Abbottabad, whereby the application of the appellant .for setting aside the eX pane decree announced on 9‑12‑1998 was dismissed with costs.

2. Facts relevant for the purpose of the disposal of this appeal are that Messrs United Bank Limited Chundrigar Road, Karachi through its Manager, Pine View Road Branch, Abbottabad instituted suit against Messrs Awami Paint and Varnish Factory Mansehra, through its Managing Director Mst. Shamshad Begum and others, for recovery of Rs. 13,58,948 with 14% interest till realization of entire amount by way o1 attachment and sale of mortgaged property, detailed in the plaint. The suit was contested on all grounds and the Bank's claim was denied. Necessary issues were framed arising out of the pleadings of the parties. The matter was fixed for evidence of the plaintiff‑Bank. The examination‑in‑chief of one of the witnesses of the plaintiff‑bank was recorded and the case was adjourned for his cross‑examination. On the next date of hearing neither the appellant nor his counsel appeared in Court which led to the grant of an ex parte decree. An application for cancellation of ex parte decree was moved but the same was declined on the ground of limitation through order dated 14‑1‑2000 which has necessitated the filing of the appeal in hand.

3. Mr. Sultan Ahmad Jamshaid, Advocate appeared on behalf of the appellant and attempted to argue that the application for setting aside of the ex parte decree has been passed in a mechanical manner without application of mind and thus the impugned order is not sustainable. Additionally, he urged that the impugned order runs contrary to the decision of this Court dated 30‑3‑1991 where 'substantial points of importance' were found to have been raised for grant of leave to appear and defend the suit. The learned counsel also challenged the finding of the learned trial Judge regarding point of limitation. As against this, Mr. Aurangzeb, Advocate for the respondent‑bank, supported the impugned order and contended that the same having been passed in accordance with law and keeping in view the past conduct of the appellant, is flawless and a valid order and hardly calls for interference of this Court.

4. It is not denied that the object of enacting the Bank's laws is to provide speedy measures for recovery of outstanding loans of the Banking Companies as their recovery suits remained pending in the Civil Courts for years together there. The special law was enacted to meet the economic situation which had arisen in the country on account of defaults in payment of the loans and finances by the borrowers and customers of the Banking Companies.

5. In the instant case we find that the past conduct of the appellant has remained not satisfactory and every possible attempt seems to have been made to thwart the proceedings but the fact cannot be lost sight of that a huge amount is involved the availment of which has been otherwise controverted and the appellant has been visited with a harsh penalty which seems to be unwarranted in the circumstances of the case. A good reason was disclosed in the application for cancellation of ex paste decree and there being nothing in rebuttal, as a measure of punishment either the right of cross‑examination of the bank's witness should have been denied to the appellant or the application in question should have been accepted on payment of costs. It is not denied that the costs is the only panacea which heals every sore in litigation. We also find ourselves in agreement with learned counsel for the appellant that the order of this Court dated 30-3‑1991 has been totally ignored which has resulted in manifest injustice to the appellant. Judicial forum has to act in consonance with the dictates of justice and equity where a cause is decided expeditiously but after giving full an ample opportunity to all sides. Law favours disposal of lis upon hearing and not on mere technicalities. The procedure is designed to secure advancement of justice. With a view of securing expeditious disposal of cases by a Court, legal requirements cannot be sacrificed. Courts are required to apply to their mind before passing any order or judgment.

6. For the aforesaid reasons we accept the appeal on payment of Rs. 5,000 as costs, set aside the impugned order and remand the case to the learned trial Judge with direction to decide the same afresh on merits after giving an opportunity to the parties to adduce evidence. The parties shall appear there on 31‑10‑2001. As the matter is pretty old and much time has been consumed in its finalisation, the learned trial Judge shall decide the same within six months from the date of receipt of this order. The office is directed to send back the record to the Court concerned immediately. Q.M.H./M.A.K./P‑411 ?????????????????????????????????????????????????????????? ??????????? Appeal allowed.