2015 PLP 959 (CLD)

Through this appeal, the appellant has challenged the order and decree dated 30-11-2010 passed by learned Judge Banking Court No-III, Lahore. Along with this appeal the appellant has also filed an application under Section 5 of the Limitation Act, 1908 for condonation of delay.

2. Learned counsel for the appellant was asked to advance arguments as to how section 5 of the Limitation Act, 1908 is applicable in the present case as the period for filing of appeal under the said section is thirty days.

3. Learned counsel for the appellant argued that after passing of the order and decree dated 30-11-2010 the appellant filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on 24-12-2010 for setting aside the order and decree dated 30-11-2010. The application remained pending for four years and was dismissed on 16-9-2014.

4. From the contents of the application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 it transpires that the appellant had appeared before the Banking Court and filed an application for leave to defend the suit.

5. Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is reproduced as under:- "POWER TO SET ASIDE DECREE.

In any case in which a decree is passed against a defendant under subsection (1) of Section 10 he may, within twenty-one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside, and if he satisfies the Banking Court that he was prevented by sufficient cause from making an application under section 10, or that the summons was not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, deposit in cash or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order." The bare reading of section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it clear that application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was not maintainable in the present case as it had not been the case of the appellant that the summons was not duly served upon the appellant and on account of this fact the appellant could not appear and file an application for leave to defend the suit under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Meaning thereby that the application filed under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was misconceived. We are afraid that after passing of order and decree by the learned Judge Banking Court dated 30-11-2010 the only remedy available to the appellant was to file an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The appellant by filing an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 completely misdirected himself which was otherwise not maintainable before the Banking Court in view of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

6. The appeal is admittedly barred by time and, therefore, the appellant has filed an application under section 5 of the Limitation Act, 1908 (C.M. No.1-C/2014) for condoning the delay while asserting therein that the delay in filing the appeal is neither intentional nor deliberate. Admittedly, the period of limitation for filing the appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is 30 days from the date of decree. Even if the period consumed for obtaining certified copy of the impugned order and decree is excluded from the period of limitation, the present appeal has been preferred after expiry of period of limitation. The present appellant by filing an application for condonation of delay under section 5 of the Limitation Act, 1908 has admitted this fact that the appeal is time barred and, therefore, an application for condonation of delay has been filed. The only question would be as to whether section 5 of the Limitation Act, 1908 is applicable in the present case. Section 29(2) of the Limitation Act, 1908 provides that wherein a special law or local law different period of limitation has been prescribed the provisions of section 5 of the Limitation Act, 1908 will not be applicable. It is needless to mention here that under the ordinary law the period for filing a Regular First Appeal before this Court is 90 days but the present case is covered by provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 which is a special law prescribing a period of 30 days for filing an appeal before this Court against the judgment and decree passed by the learned Judge Banking Court.

7. From the above discussion it becomes clear that special law has provided a different period of limitation than the ordinary law. Therefore, section 5 of the Limitation Act, 1908 is not applicable in the present case in view of the provisions of section 29(2) of the Limitation Act, 1908. We have been guided while giving these observations by the law laid down by the Hon'ble Supreme Court of Pakistan in Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286), Bashir Ahmad and others v. Messrs Habib Bank Ltd. (1990 CLC 1105) {Lahore}, Akhtar Kaleem v. Citibank N.A. through Branch Manager (2004 CLD 1361 {Lahore} and Citi Bank N.A., A Banking Company through Attorney v. Riaz Ahmed (2000 CLC 847) {Lahore}. In sequel to the above discussion this application (C.M. No.1-C/2014) filed under section 5 of the Limitation Act, 1908 is misconceived, incompetent and not maintainable, hence dismissed.

8. In view of dismissal of the application for condonation of delay the main appeal which is admittedly barred by time cannot proceed further having been filed beyond the period of limitation prescribed under the Financial Institutions (Recovery of Finances) Ordinance, 2001, hence the same is also dismissed. KMZ/T-23/L Appeal dismissed.