2023 C L D 247
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
Messrs SABIR TRADERS SOLE PROPRIETORSHIP and another ---Appellants
Versus
NATIONAL BANK OF PAKISTAN through Manager ---Respondent
High Court Appeal No. (s) 02 of 2021, decided on 31st October, 2022.
Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----S. 22(1), (2) ---Limitation Act (IX of 1908), Ss. 5 & 29(2) ---Civil Procedure Code (V of
1908), O. XLIII, R. 3 ---Appeal ---Statutory limitation ---Condonation of delay---Advance
notice, non- issuance of ---Appellants/borrowers were aggrieved of judgment and decree
passed by Trial Court ---Appeal filed by appellants / borrowers was barred by 12 days and
they did not issue advance notice to r espondent/Bank--- Validity ---Appellants/borrowers did
not furnish any sufficient cause for condonation of delay of 12 days in filing of appeal, which
was barred by time and was liable to be dismissed--- Reason mentioned by
appellants/borrowers in application for condonation of delay was baseless and false,
therefore, delay could not be condoned even in absence of counter affidavit by
respondent/Bank--- Special limitation prescribed by S. 22(1) of Financial Institutions
(Recovery of Finances) Ordinance, 2001, i tself was not subject to application of S. 5 of
Limitation Act, 1908, due to bar contained in S. 29(2)(a) & (b) of Limitation Act, 1908---Reliance on S. 5 of Limitation Act, 1908 for condonation of delay in filing appeal was misplaced ---Provision of genera l law, (Limitation Act, 1908) did not apply to special law
[Financial Institutions (Recovery of Finances) Ordinance, 2001] ---Appellants/borrowers did
not comply with the provision of S. 22(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 before filing appeal, which provided for a notice of filing of appeal in
accordance with the provisions under O. XLIII, R. 3, C.P.C. to respondent/Bank, so that it could appear to contest admission of appeal on the date fixed for hearing---Provisions of S .
22(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, were mandatory and violation thereof did not cure that illegality committed at filing of appeal ---Appeal was
dismissed in circumstances.
Muhammad Khalid Naeem v. Habib Bank Limited 2018 CLD 1027 and Messrs
Ashraf Agro v. H.B.L 2008 CLD 449 rel.
Muhammad Ali Kanrani, Hazrat Ali Kakar and Yasir Nizam Mengal for Appellants.
Ayaz Khan, Litigation Officer, National Bank of Pakistan for Respondent.
Date of hearing: 26th August, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---The appellants have preferred the instant High Court
Appeal No. (s) 02/2021, under section 22, the Financial Institutions (Recovery of Finances)
Ordinance, 2001, (F.I.O), from the judgment and decree dated 24th March, 2021 ("impugned judgment"), whereby the Banking Court Balochistan, Quetta at Dera Allah Yar ("trial Court"), has decreed the suit instituted by the respondent/National Bank of Pakistan through its Manager, Usta Muhammad Branch against the appellants for recover y of Rs. 73,66,237/26
along with costs of fund.
2. Brief facts of this appeal are that on 8th February, 2021, the National Bank of
Pakistan, through its Manager, Usta Muhammad Branch ("respondent") instituted a suit
under section 9, of the F.I.O, for recovery of Rs.73,66,237/26 in the trial Court with the
averments that the appellant No. 1 approached to the respondent for the grant of cash finance (hypothecation) facility which was accordingly sanctioned. Thereafter, from time to time, the limit was availed by the appellant No. 1 and lastly the limit was renewed of finance amount
and last sanction was made for an amount of Rs. 65,00,000/ - which was accordingly
sanctioned by the respondent through a sanction advice dated 26th September, 2019, expiry whereof w as 30th June, 2020. Prior to availing of the above -mentioned financial facility, the
appellant No. 1 executed documents prescribed in para No. 3 of the suit. In order to secure the repayment of above- mentioned finance facility, the appellant No. 2 vide a r egistered
Mortgage Deed dated 27th September, 2019, mortgaged his immovable property through an equitable mortgage (mortgage by deposit of title deeds). The description of the mortgaged property was mentioned in para No. 4 of the suit. The respondent made the breakup of the
outstanding amount in para No. 5 of the plaint. The availed finance facility was not repaid by the appellants notwithstanding demand notices were issued to them for discharge of their liability, but they avoided.
3. On 8th February, 2021 the suit was instituted before the trial Court. On registration of
the suit, the trial Court issued summons to the appellants through SSP Police Jaffar Abad at Dera Allah Yar as well as through registered post AD and publication in daily Jang Quetta and F rontier Post Quetta. On 24th March, 2021 the trial Court vide impugned judgment and
decree, decreed the suit in favour of the respondent for an amount of Rs.73,66,237/26 along with costs of fund at the rate of 7.90% per annum.
4. Messrs Muhammad Ali Kanran i, Hazrat Ali Kakar and Yasir Nizam Mengal,
Advocates appearing on behalf of the appellants state that the trial Court without passing an ex-parte order against the appellants straight away decreed the suit in violation of section
9(5), of the F.I.O, as such the appellants were condemned unheard. They also referred to Article 10 -A, the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution").
They also seek condonation of delay in filing of this appeal on the ground that the appellants had no knowledge about the institution, pendency and decretal of the suit instituted by the
respondent.
5. Mr. Ayaz Khan, Litigation Officer, on behalf of respondent Bank however, supported
the impugned judgment and states that the appeal is barred by time, however, the respondent
has not filed counter affidavit of the application made by the appellants for condonation of delay.
6. We have heard arguments and gone through the record of the case which reveals that
the impugned judgment was passed on 24th March, 2021 by the trial Court. The appellants have annexed a certified copy of the impugned judgment with the instant appeal. The stamp of the copying agency endorsed on the typed pages Nos. 4 and 5 of the certified copy of the impugned judgment reflects that application for grant of certified copy of the impugned
judgment was made on 29th March, 2021 by the appellants. The certified copy of the impugned judgment was received on 05th April, 2021. The instant appeal has been filed on 17th May, 2021. If limitatio n for filing this appeal is counted from the date of receiving copy
of the impugned judgment even, then the appeal is barred by twelve days. The appeal is also accompanied by an application under section 5 of the Limitation Act, 1908 ("Act") for condonation of delay. The appellants state in the application that they had no knowledge about the impugned judgment, as such delay so caused was requested to be condoned. The reason mentioned in the application for condonation of delay is false because the appellan ts
received certified copy of the impugned judgment on 05th April, 2021. Section 22(1), of the F.I.O provides thirty days' time limitation for filing an appeal, to any person aggrieved by the judgment and decree, sentence or a final order passed by a Banki ng Court. The subsection (5)
of section 22 also provides an appeal under this section from a decree passed ex -parte but the
limitation as per subsection (1) is thirty days. Since the appellants have not furnished any sufficient cause for condonation of del ay of twelve days in filing of this appeal, therefore, the
appeal being barred by time is liable to dismissal. Since reason mentioned by the appellants in the application for condonation of delay is baseless and false, therefore, the delay cannot
be condoned, even, in the absence of counter affidavit by the respondent thereto. Special limitation prescribed by the section 22(1) of the F.I.O, itself is not subject to the application of section 5, of the Act due to bar contained in section 29(2)(a) and (b) of the Act. Hence,
reliance on section 5 of the Act for condonation of delay in filing appeal is misplaced. The provisions of general law (Limitation Act) do not apply to the special law (F.I.O). Since Provisions of the Act has not been made applicable by vir tue of section 29(2) of the Act,
therefore, benefits of section 5 of the Act are not available to the appellants. Reliance is placed on the case of Muhammad Khalid Naeem v. Habib Bank Limited, (2018 CLD 1027), wherein, it has been held:
"8. Furthermore, admittedly, the instant Appeal has been filed with certain delay and
the Appellant has also filed application under section 5 of the Limitation Act, 1908 for condonation of delay. The ground agitated in the said application is that the Appella nt had chosen the wrong forum i.e. E.F.A. which was disposed of on
26.03.2015 by this Court, therefore, the delay may be condoned. Section 22 of the Ordinance is very much relevant which provide 30 days time to file an Appeal against the order impugned. Se ction 5 of the Act or section 29(2) of the Act provides that
where in a special law or in a local law, different period of limitation has been described, then section 5 of the Act is not applicable. Since the Ordinance is a special law and the Act is a gen eral law, therefore, section 5 of the Act is not applicable for
filing of the appeal beyond the limitation period.
9. To fortify the above said provision, reliance is placed on the case titled NIB Bank
Ltd. v. Muhammad Zia Ali Qureshi (2016 CLD 2160) wher ein it has been observed as
under:
"In order to appreciate, if the provisions of section 5 of the Act, is applicable to this case, it would be advantageous to reproduce section 29 of the Act, which is the relevant provision of law regarding applicability or otherwise of provisions of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal of application:
"29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any sp ecial or local law prescribes for any suit, appeal or application a
period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedu le, 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 plain reading of the above provisions of law, reveals that for the purpose of determining period of Li mitation prescribed for any Suit, Appeal or Application by
any special or local law, the provisions 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 se ction 5 of the Act, are not applicable to the appeals filed
under section 22 of the Ordinance as the Ordinance, which needless to say is a special law, itself specifically provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order, passed by the Banking Court."
The Hon'ble Division Bench in the case supra has also relied upon the judgment of the Hon'ble Supreme Court of Pakistan titled Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286) wherein the Hon'ble Supreme Court of Pakistan
held 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 unles s it has been made applicable as per section 29(2) of the Limitation Act."
Reliance is also placed on the case titled Messrs Pangrio Sugar Mills Ltd. v. Bankers Equity Ltd. and 5 others (2015 CLD 637) and Tariq Mehmood v. Atlas Bank (2015 CLD 959).
10. Ba sed on the Sections of the Ordinance, the Act and the principles elaborated
above, this Appeal is admittedly barred by time."
Besides limitation, the appellants have not complied with the provisions of subsection
(2) of section 22 of the F.I.O before fili ng of the instant appeal which provides for a notice of
the filing of the appeal in accordance with the provisions of Order XLIII, rule 3 of the Code
of Civil Procedure, to a respondent so that he may appear to contest the admission of appeal on the date f ixed for hearing. The provisions of subsection (1) of section 22 of the F.I.O are
mandatory, the violation thereof does not cure the illegality committed at the filing of the appeal. We may place reliance on the case of Messrs Ashraf Agro v. H.B.L, 2008 CL D 449,
wherein, it has been held:
"11. Another aspect of the case cannot be ignored as well. The appellant has filed the instant appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. A notice to the decree -holder -Bank is an essential requirement. The
appellant has filed this appeal, without complying with the mandatory requirement, which renders the appeal incompetent."
For the reasons hereinabove discussed and referred, the appeal being devoid of merit
is dismissed .
MH/193/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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