2024 C L D 751
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Sardar Ahmed Haleemi, JJ
MUHAMMAD MUSA and 2 others ---Appellants
Versus
NATIONAL BANK OF PAKISTAN through Branch Manager ---Respondent
High Court Appeal No.(S)18 of 2021, decided on 7th March, 2024.
Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----Ss. 9 & 22---Suit for recovery of finance ---Process, non- service of ---Effect ---Appellant /
borrower assailed judgment and decree passed by Banking Court on the plea that no process
was ever served upon him ---Validity ---Report of bailiff and courier service regarding service
upon appellant / borrower was silent ---It was the prime duty of Banking Court to ascertain as
to whether service of summons was duly served upon appellant / borrower or not ---Report of
bailiff and courier service acknowledgement were not available on record ---Provision of S.
9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001 was not complied with in letter and spirit and appellant / borrower was condemned unheard--- High Court set aside
judgment and decree passed against appellant / borrower and matter was remanded to
Banking Court for trial afresh ---High Court directed Banking Court to provide opportunity to
appellant/borrower to file leave to defend application ---Appeal was allowed accordingly.
Mubarak Ali v. First Prudential Modaraba 2011 SCMR 1496 and Province of the
Punjab through Member Board of Revenue (Residual Properties) Lahore and others v.
Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 rel.
Ali Hassan Bugti for Appellants.
Jahanzaib Majeed for Respondent.
Date of hearing: 29th February, 2024.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ----This High Court Appeal under Section 22 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter "the Ordinance,
2001) is directed against the judgment and decree dated 18.10.2021 (hereinafter "the impugned judgment and decree") passed by learned Banking Court Balochistan, Quetta (hereinafter "the trial Court") whereby, the suit under Section 9 of the Ordinance, 2001 for the recovery of amount Rs.1,465,261/ - filed by respondent/bank was decreed.
2. Succinct facts leading to the instant case are that National Bank of Pakistan (NBP)
through its Branch Manager, Dera Murad Jamali (respondent bank) filed suit No.47 of 2021 against the appellants for recovery of Rs.1,465,261/ - with the averments that appellant No.1
approached the respondent bank for grant of agriculture production Finance facility of Rs.900,000/ -, which was accordingly sanctioned by means of Sanction Advice No.
QTTA/ABD/DMJIAGRI/PRO/2016/880 dated 03.02.2016 for three years on revolving credit basis subject to adjustment of entire principal and markup once in every year; the appellant in order to secure the finance, mortgaged his property and charge over the same is still lying in the record of rights vide Pass Book No.225866 while appellants Nos.2 and 3 furnished personal guarantees. Appellant No.1 availed the finance, but thereafter failed to repay the loan amount as per terms of sanction advice, and an amount of Rs.1,465,261/ - remained
outstanding against appellant No.1.
3. After registration of the suit, notices were issued to appellant No.1 for his appearance
and clearing his liability but he failed to appear before the trial Court. Thereafter, publication
was made in daily newspaper "Jhang" Quetta and newspaper Frontier Post dated 17.08.2021,
but appellant No.1 failed to appear, as such, he was proceeded against ex- parte.
4. The trial Court after hearing learned counsel for respondent/bank, decreed the suit
vide impugned judgment and decree dated 18.10.2021, hence the instant appeal.
5. Learned counsel for the appellants contended that the trial Court had not followed the
provisions of section 9(5) of Ordinance, 2001 and also had not appreciated the documentary evidence, thus the impugned judgment and decree had been passed without hearing the appellant on merits; the impugned judgment and decree is passed without providing opportunity of hearing to the appellants, which is sheer violation of Article 10- A of the
Constitution of Islamic Republic of Pakistan, 1973; there exist several illegalities and irregularities in the impugned judgment warranting interference of this Court in appellate jurisdiction.
6. Conversely, learned counsel for the respondent bank controverted the contentions of
learned counsel for the appellants and maintained that the appellants deliberately did not appear before the trial Court, otherwise, they were well aware of the pendency of the suit; the
trial Court has rightly passed the impugned judgment and decree after appreciating all the
aspect of the case and evidence available on record, as such, the impugned judgment and
decree is immune from any illegality and irregularity warranting interference of this Court in appellate jurisdiction.
7. We have heard the contentions of learned counsel for the parties and scanned the
available record with their able assistance.
8. It is translucent from the record that notices in an ordinary mode issued to the
appellant have not been effected. The procedure and mode of ordinary service have been provided under Section 9(5) of the Ordinance, 2001, which reads as follows:
9. Procedure of Banking Court:
(5) On a plaint being presented to the Banking Court, a 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 other 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 acknowledgement. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits.
9. Perusal of order sheets of the trial Court depicts that the report of the bailiff and
courier service regarding service upon the appellant is silent. It is a prime duty of the trial Court to ascertain as to whether the service of summons was duly served upon the party or not. The report of bailiff and courier service acknowledgment are not available on record, thus, it is manifested on record that the provisions of Section 9(5) ibid have not been complied with in letter and spirit, as such, the appellant has condemned unheard. Reliance in this regard is placed in the case of Mubarak Ali v. First Prudential Modaraba (2011 SCMR 1496), wherein it has been held as under:
"There is nothing on the record that any acknowledgment due to the registered post was received by the trial Court or that any person on behalf of newspapers was examined to state that the said newspapers do reach or are being delivered the said village of Haji Dilbar Khan Mehar, Taluka and District Mirpurkhas. It is only when the summons are duly served and service is held to be satisfactory by the Court,
further proceedings in the suit could be taken, but in the instant case in our view the
service upon the appellant was not at all duly effected, therefore all the proceedings initiated or taken thereafter cannot have sanction of law hence are liable to be struck
down/set aside. We are convinced from the record that the appellant was not duly
served with the summons so as to proceed ex- parte against him and pass decree for
such a huge amount against him. This be noted that this Court has time and again held that parties should be given due opportunity to defend the lis and put up their case before the Court and decree be passed on merits. In case the respondent's claim is
genuine and is based on valid documents they would be ultimately leave to defend the
suit and to take further steps in the light of decision so made by the trial Court for the
final disposal of the suit at the level of the trial Court".
10. Moreover, after insertion of Article 10- A in the Constitution of Islamic Republic of
Pakistan, 1973 ("the Constitution") provides that for the determination of civil rights and
obligations or in any criminal charge against a person, shall be entitled to a fair trial and due
process. A perusal of the impugned judgment transpired that the trial Court had not made any efforts to get effected the service upon the appellant through an ordinary mode and hastily passed the impugned judgment.
11. In addition to this, the respondent/bank extended the loan facility of Rs. 900,000/ -
(Rupees Nine Lac) to the appellant for one year in the year 2017, and as per the content of the plaint, the date of default was 30.04.2018, but the suit was filed on 16.08.2021 after the lapse of stipulated period provided under the Article 57 of the Limitation Act, 1908. Reliance in this regard is placed in the case of Province of the Punjab through Member Board of Revenue (Residual Properties) Lahore and others v. Muhammad Hussain through Legal Heirs and others (PLD 1993 SC 147). The relevant para is reproduced as under:
21. "The duties of the Court under section 3 of the Limitation Act remain unaffected by this amendment. It is a duty equally to be exercised by the trial Court, by the
appellate Court, by the revisional Court, by all the Courts, for the time being seized of the matter. Applying the same to the facts of the case, we find the suit to be hopelessly time barred".
For the above reasons, the High Court Appeal (S) No.18 of 2021 is allowed,
consequently, the judgment and decree dated 18.10.2021 passed by the Banking Court
Balochistan, Quetta is set aside subject to deposit of amount Rs. 200,000/ - (Rupees Two Lac)
in lieu of principal amount. The Civil Suit No.47 of 2021 is deemed pending and the trial Court is directed to provide opportunity to the appellant to file leave to defend application and thereafter decide the case on merits by following the law.
MH/27/Bal. Case remanded.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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