1. ' AMANULLAH KHAN, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finance) Ordinance, is directed against the judgment dated 30-12-2003, passed by learned Special Judge, Banking Court, Balochistan, whereby the suit filed by the respondents 1 to 3 was decreed against the appellants.
2. ' The background of the case is that, initially respondents 1 to 3 filed a suit for recovery of Rs.20,29,269.52 in the Court of Senior Civil Judge, Quetta, with the averments that, respondents 2 and 3 purchased two Special Growth Certificates of Deposits (in short (SGCD') each valuing eight lac. Thereafter the respondents 1 to 3 purchased eight SGCD from respondent No,4, in addition to above two Certificates at the dividend rate of 20% per annum for a , period of five years and the commencing date was, from the date of issuance of said Certificates. It was further stated that the Federal Government through Finance Division---Investment Wing, passed an order of moratorium of National Development Finance Corporation. Accordingly the State Bank enforced an amalgamation scheme of respondent No,4. With the Transferee Bank i.e. Appellant under section 47 of the Banking Companies Ordinance, 1962. As a result, NDFC was merged in the Transferee Bank. It was further stated that, after taking over the management of respondent No,4, the appellant-Bank agreed to pay to all the Investors, all dividends, due to the public at the agreed rate. However, after a long correspondence, some amount was paid and as per contention of plaintiff-respondents, they were paid less amount compared to the agreed dividend rate and an amount of Rs.20,29,269.52 was found outstanding against the appellants-Bank. After refusal of the appellants to pay the same, the instant suit was filed.
3. ' Appellants-Bank filed their written statement before the learned Senior Civil Judge, and resisted the suit filed . By plaintiff-respondents and also objected to the jurisdiction of Civil Court, as according to their contentions the suit was triable by the Banking Court, which only had the jurisdiction in the matter. After hearing the parties, learned Senior Civil Judge vide order dated 7-4- 2003, transferred the suit to the Court of Special Judge, Banking. Before the Banking Judge, appellants filed their written statement, wherein besides relying upon the written statement earlier filed before the Senior Civil Judge, raised an additional objection to the effect that, suit has not been filed in accordance with the provisions of section 9 of the Financial Institutions (Recovery of Finance) Ordinance, 2001.
4. ' The learned Special Judge, Banking Court, after hearing the parties, dismissed the application for leave to defend the suit and decreed the suit vide impugned judgment dated 30-12-2003, and converted the suit into execution proceeding and fixed it for 9-2-2004. Hence instant appeal has been preferred. Alongwith the appeal, an application under section 5 of the Limitation Act for condoning the delay caused in filing of appeal has also been filed, as the appeal was not filed within time.
5. ' We have heard Syed Ayaz Zahoor, learned counsel for the appellants, Mr. Basharatullah, Advocate (respondent No,1) and Mr. Muhammad Aslam Chishti, learned counsel for respondents.
6. ' At the outset, a preliminary objection was raised regarding maintainability of the appeal, on the ground, of limitation. Thus, we have confined ourself to the point of limitation.
7. ' Syed Ayaz Zahoor, learned counsel contended; that the order passed by trial Court was without jurisdiction, as the suit was not filed in accordance with the procedure laid down in section 9 of the Ordinance of 2001, therefore, the entire proceedings before the trial Court are liable to be vitiated.
8. He further contended that, trial Court had no jurisdiction to award relief of allowing dividend at the rate of 20% as it is in violation of the policy floated by the State Bank of Pakistan and thus the Banking Court had misexercised its jurisdiction and therefore, the order being void is liable to be set aside. According to learned counsel, as the order is void, therefore, no limitation will run against a void order. He also stated that, even the order was not within the knowledge of appellants.
9. ' Mr. Muhammad Aslam Chishti, learned counsel argued that, no grounds have been given in the application for condonation of delay. Besides, it being a special statute and appeal period has been prescribed in the Statute itself, therefore, the provisions of section 5 of the Limitation Act, would not apply. Learned counsel further stated that, impugned judgment was passed in presence of parties but no efforts were made to file the appeal within time. On merit, it was contended that, since Certificates were purchased and the dividend agreed was at the rate of 20% per annum, therefore, said profit cannot be reduced. He also argued that, since the suit was transferred by the learned Senior Civil Judge on the file of Banking Judge, therefore, it would not make any difference and still the later Court had the jurisdiction to try the suit.
10. ' We have minutely gone through the record of case, with the assistance of learned counsel for parties.
11. ' Learned counsel for appellants, attempted to argue that, since an objection was raised before the learned Senior Civil Judge that the Banking Court had jurisdiction in the matter, in view of the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 (in short Ordinance), therefore, the suit was liable to be returned to the plaintiffs-respondents, but instead the suit was transferred, thus it would vitiate the entire proceedings. It may be observed here that, as far as transferring of suit or returning the same to plaintiffs; respondents is concerned, it would not in any way effect the jurisdiction of the Banking Judge. In fact the suit was transferred by the Senior Civil Judge vide order dated 7-4-2003 on the file of learned Banking Judge, instead of returning the same. It may be an irregularity but not an illegality, going to the root of case affecting jurisdiction.
12. Nonetheless, the Banking Court had jurisdiction to adjudicate upon the matter and thus, it would be immaterial; whether the suit was filed directly or was transferred on the file of Banking Court. The contention of learned counsel as such, is without substance. Besides the said objection was raised before the Banking Court in the Additional written statement, whereas the appellants relied upon their earlier written statement filed in the Court of Senior Civil Judge. The said matter was not contested by the appellants, as it is clear from the order, besides the transfer order passed by learned Senior Civil Judge was also not challenged before any higher forum, thus, the argument of Syed Ayaz Zahoor, Advocate, has no weight.
13. ' Syed Ayaz Zahoor, learned counsel, emphatically argued that, entire order was void and passed without jurisdiction, as the Banking Judge had no jurisdiction to allow dividend at the rate of 20% per annum. It may be pointed out that while the Certificates were purchased, against each Certificate, letter was issued by the then Manager of the NDFC, that the Certificates were issued for a period of five years at the profit rate of 20%, besides the Banking Court has dealt in detail with the said aspect.
14. ' Learned counsel contended that, Banking Judge, has not considered the policy regarding return of such amount, floated by the State Bank. It may be pointed out that, no such policy was placed before the Banking Court and in the application, whereby leave to defend the suit was sought, no such ground was taken. Learned counsel is now trying to set up a new case before this Court, which cannot be allowed. The reasons given in this behalf by the trial Court are sound and convincing. For reference, operative portion of the impugned judgment is reproduced hereinbelow:- "The defendants have sought leave on the ground that the rate of 20% was fixed against the instruction of State Bank of Pakistan, the plaintiffs signed the letter of authority/account opening form on 13-5-1998 and that the plaintiffs have been paid dividend as per formula approved by the competent authority. The documents placed on record by the plaintiffs would show that N.D.F.C.
15. Agreed to pay dividend at 20% but the defendants have not placed on record any document showing that State Bank of Pakistan has placed any limitation on the rate of return. Further instruction of State Bank of Pakistan cannot effect the terms of agreement between parties regarding agreed rate of dividend. The second ground, that the dividend was paid as per formula announced by the competent authority is also not available as rate of dividend was already agreed between the parties. Third ground of account opening form is also not available as it is not concerned with the purchase of certificates. No other ground has been argued by the defendants in support of their case."
16. ' A perusal of the above paras would reveal that, learned Banking Court has dilated upon the rate of dividend in detail. The policy has not been placed on record. Thus no exception can be taken to the findings arrived at by the learned Banking Court. .
17. '. Coming to the contentions of Syed Ayaz Zahoor, learned counsel that, order is void and without jurisdiction therefore, no limitation runs against such an order, it may be pointed out that, since the learned Banking Court had jurisdiction to adjudicate upon the matter, even a wrong judgment passed on a question of law or facts would not render it without jurisdiction. Thus the contention of Syed Ayaz Zahoor, learned counsel for the appellants is repelled. It has been time and again held by the Superior Courts that, even the limitation would run against a void order from the date of knowledge and it has been emphasized that, aggrieved party should approach the competent forum for setting aside void orders from the date of knowledge. In this regard, reliance is placed on the case of M. Raz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397, wherein on the question of limitation against a void order, following observations have been made:--
(4) "Secondly, there is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR
865. Nevertheless every case is distinguishable on its facts and circumstances. It is undoubtedly imperative for aggrieved party to peruse legal remedies with utmost diligence and satisfy conscious of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation, even if objections to that effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmed and others) and PLD 1993 SC 47 (Province of Punjab and others v. Muhammad Hussain and others). Thus, aggrieved person seeking redress has legal obligation to justify each day's delay for launching proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts.
(5) Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him; or same should be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create complications leading to dangerous results. Principle of justice and fairplay does not help those. Who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreason period at the whim's, choices or sweetwill of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of .Alleged void order; which too must be independently established on sound basis.
18. ' The contention of Mr. Muhammad Aslam Chishti, Advocate, has weight that under the Ordinance appeal period is provided, thus in view of section 29 of the Limitation *Act, provisions of section 5 of the Limitation Act would not apply. The application filed under section 5 of the Limitation Act is not maintainable. Reliance is placed on Bashir Ahmad and others v. Habib Bank Limited 1990 CLC 1105.
19. ' In view of the above discussion, we see no merits in the appeal, which is accordingly -dismissed in limine, leaving the parties to bear their own costs. Decree sheet be prepared.