MIAN HAMID FAROOQ, J.---Azra Manzoor Qureshi, appellant, through the filing of the present first appeal, has called in question judgment and decree dated 22-6-1998, whereby the learned Judge Banking Court, after dismissing appellant's application, seeking leave to defend the suit, proceeded to pass the decree for the recovery of Rs.41,83,150.50 with costs against the appellant and respondents Nos.2 and 3, jointly and severally.
2. Precisely stated the facts relevant for the decision of the present appeal are that the respondent-Bank filed the suit for the recovery of Rs.41,8S,150.50, against Messrs Ali Associates and 2 others, wherein the appellant was arrayed as defendant No.3, as she, statedly, mortgaged her property, consisting of shops in Galaxy Shopping Centre, and also stood as a guarantor. It was the case of the respondent-Bank that Messrs Ali Associates, sole proprietary concern of Shahana Qureshi, obtained finance and executed Morabaha Agreement dated 15-12-1995 and as a security, the appellant mortgaged her property and also executed personal guarantee. The appellant filed the application for leave to defend the suit together with an application for extension in time and for condonation of delay in filing the application. for leave to defend the suit. It [nay be noted that the respondents Nos.2 and 3 did not file any application for leave to defend the suit. The learned Judge Banking Court, after hearing the parties, proceeded to dismiss appellant's application for leave to defend the suit and consequently decreed respondent-Bank's suit for the recovery of Rs.41,83,150.50, with costs against the appellant and respondents Nos.2 and 3, jointly and severally, vide impugned judgment and decree dated 22-6-1998, hence the present appeal.
3. Learned counsel for the appellant has contended that the entire claim of the bank was false and fabricated, inasmuch as the documents, executed by the appellant, in favour of Faysal Al-Islami of Bahrain E.C. in order to secure the financial facility, obtained by Mazcon Engineering, have been misused by the respondent-Bank. He has further submitted that the appellant neither executed any document in favour of the respondent-Bank nor submitted any guarantee nor furnished any property documents to the respondent-Bank in order to create an equitable mortgage. Conversely, the learned counsel for_ the respondent-Bank, while refuting the said contentions, has submitted that appellant's application for leave to defend the suit, which under the law, was required to be filed within 21 days from the date of service, was in fact belatedly filed and her application was grossly barred by time. He has added that the appellant received the summons through registered post on 5-12-1997, the acknowledgement due, signed by the appellant, is available on record and additionally, she was served through the summons published in the two newspapers on 4-12-1997 and 3-12-1997, but she filed the application for leave to defend the suit on 10-1-1998, therefore, the same was barred by time. He has further submitted that the appellant filed the application for condonation of delay, which was not decided by the learned Banking Court. On merits, he has submitted that in fact all the documents were executed by the appellant, as the bank was using the old stationery, which was in the name of Al-Islam' of Bahrain E.C., therefore, the appellant cannot take a advantage.
4. Admittedly, appellant's application, seeking leave to appear and defend the suit, was filed beyond the period of limitation, as under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997, leave application is to be filed within 21 days from the date of service of the notice. Further admittedly, the appellant, along with his parent application, filed an application for extension of time and seeking condonation of delay in filing the leave application. However, we find from the record that the said application was not decided through a reasoned order, although the same was casually allowed by the learned Banking Court, vide order dated 12-1-1998. To our mind, said application, which was crucial in nature, should have been decided by the learning Banking Court through a reasoned order and in accordance with law.
It is settled law by now that if any miscellaneous application is filed by the party, it is incumbent upon the learned Court to decide t he said application either way, through a specific order and then to decide the main case and failure to decide such an application would vitiate the main judgment. If any case-law is needed, judgments reported as Pak Carpet Industries Limited v.
Government of Sindh and 2 others 1993 CLC 334; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another 1998 M LD 150 can be referred.
5. In the above perspective, we are of the view that the learned Banking Court, by not deciding the said application through a reasoned order and allowing the same through a slipshod and cursory manner, has definitely committed legal error, inasmuch as there are no findings on the said application in the final judgment, therefore, the said application is deemed to be pending. Thus we are inclined to set aside the impugned judgment.
6. As regards the contentions raised by the learned counsel for the parties, we have deliberately refrained from rendering any findings on the said controversies, as we are inclined to remand the case to the learned Banking Court for fresh decision of the applications and the suit and in case any findings are given, those may prejudice the cause of either of the parties before the learned Banking Court.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 22-6-1998, qua the appellant, are set aside with no order as to costs.
Resultantly two applications filed by the appellant, one seeking leave to defend the suit and other for condonation of delay, in filing the leave application, and the respondent-Bank's suit shall deem to be pending before the learned Banking Court, who shall decide both the applications and the suit through reasoned order, after hearing the parties and of course in accordance with law.