MIAN HAMID FAROOQ, J.---The appellants, through the filing of the present appeal, have called in question judgment and decree dated 9-3-2005, whereby the learned Judge Banking Court, after finding that there is no sufficient ground for condonation of delay, dismissed appellant's application for leave to defend the suit and consequently decreed appellant's suit for recovery of sum of Rs.7,34,285 with cost of suit and cost of funds against the appellants.
2. Precisely stated the facts of the case are that the respondent-Bank instituted a suit for the recovery of Rs.7,34,285 against the appellants, inter alia, pleading that defendant No.1 was allowed a lease finance facility of Rs.3,60,000 for the purchase of vehicle Suzuki Mehran, Model 2000; the defendants executed the relevant documents; said facility was availed by the defendants and their failure to liquidate the suit amount necessitated the filing of the suit. Pursuant to the issuance of summons, as required under the law, the appellants, on 17-1-2005, filed the application, seeking leave to appear and defend the suit, together with the application under section 5 of the Limitation Act for condonation of delay. It was stated by the appellants that no notice was served upon the defendant No.1 and that they came to know about the filing of the suit on 16-1-2005. The learned Banking Court, after hearing the parties, finding that there is no sufficient ground for condonation of delay and the defendants have not been able to make out a case for the grant of leave to defend the suit, dismissed their leave application and resultantly passed the decree for the recovery of a sum of Rs.7,34,285 with costs and cost of funds, vide composite judgment and decree dated 9-3-2005, hence the present appeal.
3. Learned counsel for the appellants has contended that the appellants were not served through any of the modes of service as prescribed under the law and that on attaining knowledge, on 16-1- 2005, they immediately filed the application, seeking leave to defend the suit on the next day i.e. on 17-1-2005 together with an application for the condonation of delay, therefore, appellant's application was within time. He has further submitted that even if the leave application was time barred, it was the duty of the Banking Court to dismiss the suit as the same was barred by time. He has referred to copy of compromise agreement dated 22-3-2001 to contend that the suit filed on 23-10-2004 is barred by time. He has relied upon sections 48-A and 50 of the Limitation Act.
Conversely the learned counsel for the respondent has submitted that the appellants were duly served, when the publication was made in two newspapers, as ordered by the learned Banking Court. He has further submitted that as no specific Article of the Limitation Act provides for filing suit for recovery of leased amount, therefore, the suit filed by the Bank would be governed by Article 120 of the Limitation Act. He has relied upon West Pakistan Water and Power and Development Authority v. Sohrabji & Sons and another 1986 CLC 2593 and Faiz Muhammad and 2 others v. Ramzan Ali and 3 others 1989 M LD 2525.
4. We have heard the learned counsel and examined the summoned record with the assistance of the learned counsel.
5. Admittedly, upon the presentation of plaint by the respondent-Bank, the learned Banking Court issued summons to the defendants through all the modes of service, prescribed under section 9(5) of the Ordinance, 2001 and the proclamation was made in two newspapers i.e. "Nation" and "Khabrain" of their prints dated 24-11-2004 and 25-11-2004. According to the appellants, they came to know about the suit, on 16-1-2005, however, it is not discernible from the available record, as also held by the learned Banking Court, that how and from where they came to know about the pendency of the suit. The appellants were served firstly, through publication in the newspapers on 24-11-2004 and 25-11-2004. The principal argument raised by the learned counsel that the service effected through publication should not be taken into consideration for the purpose of computing period of limitation for filing the leave application, is on the face of it is misconceived, as section 9(5) of the Ordinance, itself provides that "service duly effected in any one of the aforesaid modes shall be deemed to be valid service for the purpose of this Ordinance". In view whereof, it can neither be urged nor held, as unsuccessfully canvassed by the learned counsel that the leave application, filed by the appellants, on 17-1-2005, is within time. Honourable Supreme Court of Pakistan in the case reported as Messrs Simnwa Polypropylene (Pvt.) Ltd. and others v. Messrs National Bank of Pakistan 2002 CLD 1510 while precisely dealing with the said proposition, has held that the petitioner could not argue that the latest service mode of three modes should be taken into consideration for computing the period of limitation and not the other. It would be appropriate to reproduce para.5 of the judgment in the case of Messrs Simnwa Polypropylene, which reads as follows and is complete answer to the principal contention raised by the learned counsel:-- "Learned counsel for the petitioners submitted that since in this case, the petitioners were served through three modes in the following manner (1) through publication in the newspaper on 2-6- 2000, (2) allegedly through registered post acknowledgement due on 1-6-2000 and (3) through bailiff of the Court on 15-6-2000, therefore, for the purpose of computing the period of limitation, the service effected through Bailiff of the Court should be taken into consideration and not the other as the same is comparatively more valid having been made in the prescribed mode by delivery of copy of the plaint in such suit whereas through other modes, the copies of the plaints were not delivered. The argument has no force. It has been declared under section 9(3) of the Ordinance that service in any of the modes shall be deemed to be valid service for the purpose of the Ordinance, therefore, the petitioners could not argue that the latest service mode of the three modes should be taken into consideration for computing the period of limitation and not the other.
The view finds support from the judgment reported as Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCM R 2353 and Messrs Ahmad Autos and another v. Allied Bank of Pak tan Limited PLD 1990 SC 497."
Reference can be made to another judgment reported as Khawaja Muhammad Bilal v. Union Bank Limited through Branch Manager 2004 CLD 1555.
6. As regards next contention of the learned counsel that the suit was barred by time. We find from the impugned judgment that the said plea was urged by the appellants and it was duly dealt with and decided by the learned Banking Court. The learned Banking Court has properly adverted to the said plea and has rightly held that the suit filed from the date of accrual of cause of action is not out of time. We are not persuaded to take a contrary view. It would be appropriate to reproduce para.7 of the impugned judgment, which in fact clinches the matter:-- "The learned counsel for the defendants next contended that the suit is barred by time. In this connection, he referred to the copy of the compromise/agreement dated 22-3-2001, copy of which is annexed with the plaint. According to him, under clause (4) of the said agreement. The Lessee agreed to pay the liquidated damages of Rs.1,00,000 in case he failed to clear his outstanding liability on or before 20-5-2001. The default if any, according to the learned counsel for the defendants occurred on 20-5-2001 and the suit was to be filed within three years from the said date but the same has been filed on 23-10-2004. The learned counsel for the plaintiff pointed out that the cause of action accrued to the plaintiff firstly when the lease facility was provided, secondly when the default in repayment was made and lastly on refusal by the defendants to make payment. According to him, the defendants finally refused to make the payment about one week before filing of the suit, as such the suit is within time. The learned counsel for the defendants could not give any satisfactory reply to the contention of the plaintiff."
7. In the above perspective, we have examined the impugned judgment and find that the learned Banking Court did not commit any illegality in passing the same. We see no cogent reasons to unsettle the impugned judgment and decree, which are hereby maintained.
8. Upshot of the above discussion is that the present appeal is devoid of merits, hence dismissed leaving the parties to bear their own costs.