2021 C L D 468
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
DANISH ALI and 2 others ---Appellants
Versus
NATIONAL BANK OF PAKISTAN through Manager and another ---Respondents
High Court Appeal No. (s) 14 of 2018, decided on 10th February, 2021.
Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----S. 22 ---Limitation Act (IX of 1908) S. 5--- Appeal ---Limitation ---Application of S. 5 of
the Limitation Act, 1908 for condonation of delay in filing of appeal under S. 22 of the
Financial Institutions (Recovery of Finances) Ordinance, 2001--- Scope ---Provisions of S. 5
of Limitation Act, 1908 were not applicable to appeal filed under S. 22 of Financial Institutions (Recovery of Financ es) Ordinance, 2001, which was a special law and itself
prescribed period of limitation for filing of appeal.
Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.
Rizwan Ali Soomro for Appellants.
Nemo for Respondent No. 1.
Ahsan Rafi que Rana for Respondent No. 2.
Date of hearing: 6th January, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---This High Court Appeal, under section 22 of
Financial Institution (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), filed against the judgment and decree dated 15.12.2017 ("the impugned Judgment") passed by the learned
Judge Banking Court, Balochistan, Quetta, ("the trial court") whereby the learned trial court decreed the suit in favour of the respondent/bank.
2. Brief facts for the disposal of thi s appeal are that the respondent/bank, filed suit
against the appellants for recovery of the sum of Rs.8,76,698/ -. The appellants appeared and
filed an application under section 10 of the Ordinance for grant of leave to defend the suit. The said petition f or leave to appear and defend the suit was dismissed, and resultantly the
suit was decreed by the learned trial court vide impugned judgment and decree dated
15.12.2017 to the tune of Rs.8,76,698/ - in favour of the respondent/bank against the
appellants jo intly and severally with costs along with costs of funds to be determined under
sections 3 and 17 of the Ordinance. Hence this appeal.
3. We have heard the learned counsel for the appellants and also perused the entire
record with his able assistance.
4. The appellants in their petition for leave to defend partly admitted the availing of the
financial facility from the bank but the petition for leave to defend of the appellants is not as
per section 10 of the Ordinance. According to section 10 of the Ordina nce, the appellants
was required to specifically mention the amount of finance availed by them from the respondent/bank, the amounts paid by them to the respondent and the dates of payments as well as the amount of finance and other amounts relating to the finance payable by them to
the respondent up to the date of institution of the suit. But the said application reveals that the appellants have neither mentioned anything in this regard nor extended any sufficient cause for their inability to comply with s uch requirement rather made vague averments,
simply denying the claim of the respondent.
5. Under the above circumstances we feel no hesitation to hold that the appellants have
not fulfilled the requirement of section 10 of the Ordinance, as such, the same has rightly
been rejected.
6. Even otherwise, the appellants filed leave to defend application on 20.11.2017 after
lapse of nine (09) months which was also barred by time.
7. The respondent/bank apprehended the agreement of financing demand, promissory
note, statement of accounts, pass book with the suit and these documents could not be rebutted by the appellant through any evidence, rather they admitted the availing of the finance facility. There is no document produced by the appellants that may show any re -
payment of the amount due against the availed facility from the bank. When confronted as to whether the appellants/defendants have fulfilled the mandatory requirements of s ection 10(4)
and (5) of the Ordinance, the learned counsel for the appellants remained unable to satisfy this court. In view of the above backdrop, the learned Judge Banking Court has rightly passed the impugned judgment and decree while invoking the juris diction as envisaged in the
penal clause of subsection (6) of section 10 of the Ordinance ibid and dismissed the petition for leave to defend.
8. The appeal filed by the appellants before this court is also barred by time. It reveals
that the appellants fi led the instant appeal on 20.02.2018 i.e. two months and five days after
passing of the impugned judgment dated 15.12.2017. However, the appellant has also filed an application under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing of the appeal on the ground that "father of the appellant died during this period hence
the appellant could not contact his counsel to file the instant appeal". He, therefore, prays that the delay in filing appeal may be condoned.
9. The remedy of appe al against the judgment and decree, passed by the Banking Court,
in a suit, is provided under section 22 of the Ordinance provided a period of thirty days for
filing of the appeal by any person aggrieved by any judgment and, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence
or final order prefer an appeal to the High Court.
10. Section 29 of the Act, which is the relevant provision of law regarding applicability of
certain provisions of the Act, when a special law or statute itself provides period of
Limitation for filing any suit, appeal or application, so as to appreciate, if the provisions of section 5 of the Act, would be applicable to the case in hand: -
"29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872
(IX of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisi ons of section 3 shall apply, as if such period were prescribed
therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law ---
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply".
A bare reading of the above provisions of law, reveals that for the purpose of
determining period of Limitation prescribed for any Suit, Appeal or Application by any
special or local law, the provisions contained in section 4, sections 9 to 18 and 22 of the Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by
such special or local law; section 29(2)(b), provides that the remaining provisions of the Act, shall not apply.
11. In view of the above, we are of the considered opinion that t he provisions of section 5
of the Act, are not applicable to the appeal filed under section 22 of the Ordinance as the Ordinance, which is a special law, itself provides period of limitation for filing the appeal to the High Court against the judgment, dec ree, sentence or final order, passed by the Banking
court. Reference can be made to the case of Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286), wherein the Hon'ble Supreme Court observed as under: -
"5..... where the law under which proceedings have been launched prescribes itself a period of limitation then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act......"
12. Moreover, from a perusa l of the certified copies of the impugned judgment and decree
annexed with the appeal, it would be seen that the impugned judgment were delivered to the appellants on 29.12.2017 but the instant appeal was filed on 20.02.2018 which is barred by time. Furthe rmore, the ground taken by the appellants in the application filed for condonation
of delay that father of the appellants died during this period, hence the appellants could not
contacted his counsel for filing the appeal is patently absurd and misconceive d, as the
appellants had filed the instant appeal after one month and twenty two days of receiving the
certified copies of the impugned judgment and decree. Moreover, such an assertion of the appellants could hardly be a ground for the appellant to seek condonation of delay in filing of appeal even in a case attracting provisions of section 5 of the Act as the delay of each and
every day with justification was to be explained in such a case in view of well settled law,
what to say about the case one in hand in which the provisions of section 5 of the Act, are
inapplicable as discussed by us in para supra.
In view of what has been discussed above, we are of the considered view that the
instant application bearing C.M.A. No.(S) 144 of 2017 under section 5 of the Act, being not
maintainable is liable to be dismissed and resultantly the instant appeal being time barred also deserves to be dismissed.
KMZ/57 -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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