2020 C L D 362
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
YAR MUHAMMAD ---Appellant
Versus
NATIONAL BANK OF PAKISTAN through Manager ---Respondent
High Court Appeal No. 8 of 2017, decided on 22nd November, 2019.
(a) Interpretation of statute ---
----Words used by Legislature ---Connotation--- Words used by Legislature are to be read and
understood in plain and ordinary meanings.
(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----Ss. 9 & 10--- Suit for recovery of finance ---Leave to defend application, non- filing of ---
Effect ---Defendant was aggrieved of judgment passed by Banking Court decreeing suit for
recovery of money filed by Bank---Validity ---Defendant according to S. 10 of Financial
Institutions (Recovery of Finances) Ordinance, 2001 was required to make application for
leave to defend suit within thirty days after publication ---Defendant, despite lapse of a month
and sixteen days after publication had not filed any application for leav e to defend which was
otherwise beyond prescribed period of thirty days ---Bank had fulfilled all requirements of Ss.
9(2) & 9(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 as statement of
account and all charged documents were annexed with plaint ---Neither defendant had filed
leave application as required by Financial Institutions (Recovery of Finances) Ordinance, 2001 nor showed sufficient cause regarding his absence as well as non- appearance of his
counsel when suit was fixed before Banking Court ---High Court declined to interfere in
judgment and decree passed by Banking Court as there was no illegality or material irregularity ---Appeal was dismissed, in circumstances.
Ubaidullah Quresh for Appellant.
Talal Rind for Respondent.
Date of hearing: 29th October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---This appeal has been filed under section 22 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance, 2001")
against the judgment and decree dated 04.04.2017 passed in Suit No. 19/2017 by the Banking
Court of Balochistan Quetta ("trial court") whereby the trial court decreed the said suit in favour of respondent Bank.
2. Brief facts of the case are that appellant availed the financial facility of
Rs.13,60,000/ - from respondent Bank after executing the collateral documents as per
Banking Rules but later on, on appellant's failure to repay the same, the respondent Bank filed the said suit for recovery against the appellant. Appellant appeared before the trial court and did not file application for leave to defend, as a consequence w hereof the respondent
Bank was awarded a money decree as prayed with cost of fund as per the rate provided by the State Bank of Pakistan from the period of date of default till realization of the money vide impugned judgment and decree dated 04.04.2017.
3. Learned counsel for appellant contended that the impugned judgment is not in
conformity with the law as the statement of accounts, which are required to be annexed along with the plaint under section 9(ii) of the Ordinance, 2001 were not filed, therefore the
mandatory requirement of law was frustrated. It was next urged by learned counsel that service of summons were not effected upon the appellant. He next argued that the on 14th February the trial court registered the suit, whereby the appellant was summ oned and suit
was fixed for 17th of March 2017 for appellant's appearance. On the said date the appellant's counsel appeared and undertook to file Vakalatnama on the next date of hearing i.e. 4th April 2017, however on the said date the appellant's counsel was unable to appear before the court
as he was busy in different courts, but the trial court decreed the suit filed by respondent Bank ex -parte against the appellant and no opportunity was given to appellant to justify
absence of his counsel.
4. Learned counsel for respondent No.1 contended that appellant on account of his own
act and deeds is estopped from challenging the vires of the impugned judgment, as he did not file application for leave to defend in time. It is next urged summons were published in daily
"JANG" and daily "Frontier Post" on 18.02.2017 after the suit was filed in the Banking Court, therefore the appellant was required to file written statement/application for leave to defend on/or before 18th March, 2017 as he has proceeded to file ap plication for leave to
defend under section 12 of the Ordinance, 2001.
5. We have considered the arguments advanced at bar. At this stage, it would be
convenient to reproduce a text of sections 9(5) and 10(2) of the Ordinance 2001, herein below in extenso: --
"9. Procedure of Banking Court."
(1) ..........
(2) ..........
(3) ..........
(4) ..........
(5) On a plaint being presented to the Banking Court, summons in Form No.4 in
Appendix 'B' to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other
form as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspaper, and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. In the case of service of the summons through the bailiff or process server, a copy of the plaint shall be attached therewith and in all the cases the defendant shall be entitled to
obtain a copy of the plaint from the office of the Banking Court without making a written application but against due acknowledgment. The banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation
within its territorial limits."
10. Leave to defend. (1) ..........
(2) The defendant shall file the application of leave to defend through publication in the newspapers; the B anking Court may extend the time for filing an application for
leave to defend if satisfied that the defendant did not have knowledge thereof."
6. It is a golden rule of interpretation of law that the words used by the legislature are to
be read and unders tood in plain and ordinary meanings. Bear reading of section 9(5)
visualizes that after the plaint has been presented in the Banking Court summons shall be served upon the defendant through bailiff or process server, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu
language daily newspapers and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for the purpose of this Ordinance. Section 10(2) of the
Ordinance provides that the defendant shall file the application for leave to defend within
thirty days of the date of first service by any one of the modes laid down in section 9(5). The object of the Ordinance was to provide machinery for expeditious recovery of t he money.
7. Admittedly the suit was registered on 14.02.2017 and publication was made in Daily
Jang and Frontier Post Quetta on 18.02.2017 and the case was fixed for 17.03.2017 meaning thereby, the appellant was served through the said publication in news papers. But on
17.03.2017 learned counsel for appellant appeared before the trial court and undertook to file vakalatnama on behalf of appellant on the next date, whereafter the case was fixed for 04.04.2017 but on the said date neither appellant or his counsel appeared before the trial court nor any application for leave to defend the suit was filed, hence on the same date the suit filed by respondent Bank was decreed ex -parte against appellant. In terms of section 10
of the Ordinance 2001 the appellant wa s required to make an application for leave to defend
the suit within thirty days after publication but admittedly on 04.04.2017 the appellant despite lapse of a month and sixteen days after publication did not file any application for leave to defend, whi ch was otherwise beyond prescribed period of thirty days.
8. On the other hand all the requirement of subsections (2) and (3) of section 9 of the
Ordinance, 2001 were fulfilled by the respondent Bank as statement of account and all the charged documents were annexed with the plaint.
9. Considering the facts and circumstances of the case, we are clear in our mind that
neither appellant has filed leave application as required by the Ordinance, 2001 nor shown
any sufficient cause regarding his abse nce as well as non -appearance of his counsel on
04.04.2017 when the subject suit was fixed before the trial court. Consequently, we do not observe any illegality or material irregularity in the impugned verdict of the learned Banking
Court, which does not call for any interference by this court, hence maintained. Resultantly,
the instant appeal stands dismissed.
MH/183/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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