2020 C L D 574
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
Messrs GHAZI RICE MILLS, SOLE PROPRIETORSHIP GHAZI KHAN LASHARI ---
Appellant
Versus
NATIONAL BANK OF PAKISTAN through Manager ---Respondent
High Court Appeal No. 10 of 2015, decided on 3rd January, 2020.
(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----Ss. 10, 7 & 9--- Suit for recovery ---Procedure of Banking Court ---Application for leave to
defend ---Mandatory requirements of S. 10 of t he Financial Institutions (Recovery of
Finances) Ordinance, 2001--- Scope ----Section 10 of Financial Institutions (Recovery of
Finances) Ordinance, 2001 provided that a defendant/customer was required to specifically
mention amount of finance availed, amounts paid to Financial Institution, dates of payments, and other information, up to date of institution of a suit for recovery---Such requirements had to be fulfilled by a defendant in stricto sensu ---Where application for leave to defend
contained mere vagu e averments and simply denied claim of Financial Institution, then such
application had to be rejected by Banking Court.
(b) Limitation Act (IX of 1908)---
----S. 5 --- Condoning of delay--- Principles --- Discretion of court, exercise of ---Scope ---
Powers v ested in a court to condone delay under S. 5 of Limitation Act, 1908 were
discretionary in nature and for exercise of such discretion in favour of any party, Court must
be satisfied that delay was beyond control of a party and was not contumacious ---Once t ime
began to run, it did not stop and delay of each and every day had to be explained in an application under S. 5 of Limitation Act, 1908.
Muhammad Saleem Lashari and Waleed Baloch for Appellant.
Talat Rind along with Abdul Majeed Umrani, Manager NBP, Dera Allah Yar Branch
for Respondent.
Date of hearing: 16th December, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this appeal, filed under section 22 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the
appellant has challenged the validity of impugned judgment and decree dated 02.04.2015
passed by the Banking Court Balochistan, Quetta; (the "Banking Court") whereby it decreed the suit of the respondent/plaintiff.
2. Brief facts of the case are that the appellant obta ined finance facility from the
respondent in the year 2008 and mortgaged his property as a security which facility, later on, was also renewed by the respondent Bank on the request of the appellant, who executed various finance documents in favour of the r espondent. But on his default in repayment of
said loan facility the respondent Bank filed a suit for recovery of Rs.12,465,951.59 along with costs of suit and cost of funds @ 7.28% per annum under sections 3 and 17 of the Ordinance. Hence this appeal.
3. We have heard the arguments of both the sides and perused the record.
4. When any case in which the summons has been served on the defendant as provided
for in subsection (5) of section 9 of the Ordinance, section 10 of the Ordinance provides full opportunity to the defendant his case by filing application for obtaining leave f rom the
Banking Court. It is however, pertinent to mention here that the said section contained certain requirements which have to be fulfilled by the defendant in stricto sensu. According to section 10 of the Ordinance, the appellant was required to speci fically mention the amount
of finance availed by him from the respondent, the amounts paid by him to the respondent and the dates of payments as well as the amount of finance and other amounts relating to the finance payable by him to the respondent up to the date of institution of the suit. But the said
application reveals that the appellant has neither mentioned anything in this regard nor
extended any sufficient cause for his inability to comply with such requirement rather made vague averments, simply denying the claim of the respondent and only mentioned that the material i.e. rice and paddy were lying in the rice mill was caught fire and the appellant duly reported the matter with concerned police station and the insurance company gave an amount of Rs. 9200,000/ - to the Bank authorities and requested the bank authorities to claim the
entire amount of Rs.2,40,000,00/ - but the insurance company did not fulfill the entire claim
of the respondent. Hence the replying defendant was unable to give the mark- up amount after
sanctioning of loan amount. We feel no hesitation to hold that the appellant has not fulfilled the requirement of section 10 of the Ordinance, as such, the same has rightly been rejected.
5. Even otherwise, the application for leave to defend f iled was also barred by time and
thereafter the case was fixed for argument of the parties on 12.02.2015, 19.02.2015, 13.03.2015, 24.03.2015 and finally on 02.04.2015, the counsel for the appellant failed to argue his application for leave to defend, conse quently the learned trial Court decreed the
suit of the respondent.
6. Whereas on the other hand the record reflects that the respondent in paragraph 5 of
the plaint has mentioned the detail of relevant amounts and has also appended with its suit all the r elevant documents that its suit all the relevant documents which too have been
mentioned and relied upon by the Banking Court in paragraph 14 of the impugned judgment. The application filed by the appellant under section 10 of the Ordinance also reveals that the
appellant has admitted execution of certain documents. Mere alleging that the suit of the
plaintiff/appellant is based on mala fide is not enough to negate the claim of respondent which otherwise has been proved through valid documents.
7. The insta nt appeal arises out of the impugned judgment dated 02.04.2015 passed by
the Banking Court and limitation for filing of an appeal under section 22 of the Ordinance is thirty (30) days. From the date of order and in the instant matter the date of the impugned judgment 02.04.2015 and the period of thirty (30) days will be expired on 02.05.2015, whereas the instant appeal has been filed on 17.06.2015 which hopelessly barred by time and for which no plausible reason has been put forth except that the impugned j udgment was not
in the knowledge of appellant soon as the notice was issued in respect of pendency of execution proceeding from where it was transpired to the appellant the judgment dated 02.04.2015 has been passed against the appellant. Though the question that whether the provision of section 5 of Limitation Act, 1908 is applicable in respect of cases under the Ordinance are not in view of the provisions of section 29(2) of the Limitation Act, 1908 has not been raised or argued by the learned counsel for the respondent, however, as a matter of
indulgence and to meet the ends of substantial justice even otherwise, it must be kept in mind that the power vested in the Court to condone the period of limitation in terms of section 5 of
the Limitation Act, 1908 are discretionary in nature and for exercise of such discretion in
favour of any party, the Court must be satisfied that the delay in filing of appeal was beyond the control of such party and was not contumacious, whereas in the instant case, we are not convinced that the appellant has made out any prima facie case to exercise any such
discretion in its favour to condone the delay in filing of instant appeal. Needless to state here that once the time begins to run, it does not stop and delay of each and eve ry day has to be
explained, which the appellant in the instant matter has failed to explain, as such the appeal,
is to abate as a whole. It is not the case that whether or not the appellant had shown due diligence and good faith through its conduct so as t o seek any condonation of such delay in
filing the instant appeal, rather it is a case wherein the appellant was required to show "sufficient cause" whereby discretion could be exercised by this Court in condoning such delay. In the instant matter the appellant has not been able to show any sufficient cause, whereby this appeal could be convinced to condone the delay in filing of the instant appeal.
In view of hereinabove facts and circumstances of the case the application filed under
section 5 of the Limi tation Act, 1908 bearing C.M.A. No.384 of 2015 is hereby dismissed,
consequently the instant appeal along with all pending application is also dismissed as barred by time.
Appeal dismissed.
KMZ/15/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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