ANWAR ZAHEER JAMALI, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is directed against the order dated 21st May, 2002 passed by the Special Judge, Banking Court No.2 at Karachi in Suit No.103 of 1995 whereby an application under section 12 of the Banking Companies (Recovery of Loans, Advances,. Credits and Finances) Act, 1997 read with section 12(2), C.P.C. was dismissed.
2. Facts relevant for disposal of this appeal are that a suit for recovery of Rs.23,05,866.20, instituted by the respondent No.1 was decreed against the defendants in the sum of Rs.18,24,262 with future mark-up, vide judgment dated 4-10-1997. Upon filing of Execution Application the appellant appeared before the Banking Court and moved the application referred above with the prayer that the judgment earlier passed in the suit may be set aside. On such application of the appellant, which was strongly resisted by respondent No.1, the Banking Court framed two issues, afforded opportunity to the contesting parties to lead evidence thereon and ultimately dismissed the application, by recording following reasons in the impugned order:-- "Defendant/J.D. No.5 was cross-examined and he was confronted with the Court Summons for the hearing dated 19-9-1995 and he admitted that the same contains his address, his name and his father's name which he produced as Exh. D/5/1. He also produced the copy of N.I.C. as Exh.D/5/2 and has also produced attested copy of Form 29 as Exh.D/5/3. During cross-examination he was confronted with original UMS receipt dated 27-7-1995 and he admitted that it bears his name and address mentioning "Brig. Retired Khalid Lahore", and other UMS Receipt No.1205 dated 19-6-1995 bearing the name of addressee as Registrar Banking Tribunal, Lahore and UMS Receipt bearing No.1204 addressed to District and Sessions Judge, Bahawalpur, which was confronted to him from Court file and produced by him as Exh.D/5/4, Exh.D/5/5 and Exh.D/5/6 respectively. The Court notice dated 13-9-1995 published in "The News" relating to the instant suit produced by him as Exh.D/5/7 and he admitted that it contains his name and address. To the covering letter addressed to Banking Court, Lahore, dated 18-6-1995 he stated that it contains his name and address which is produced by him as Exh.D/5/8. The defendant/J.D. No.5 was also confronted with writ of attachment of Execution Application No.46 of 1999 and he stated that at Serial No.5 it bears his name, father's name and address and its date of issuance is 4-5-1999 and the date of hearing was 24-5-1999. He was further confronted with the Court notice published in News International Lahore dated 6-12-1999 and he stated that at serial No.5 it bears his name, father's name and address i.e. 36-Sarwar Road, Lahore, Cantt., as well as in daily Jasarat dated 9-12-1999. Daily Ailan. Lahore dated 17-12-1999 was also confronted to him and the same was not refuted by him. Show-cause notice of arrest published in daily Dawn dated 2-8-2000 and also published in daily Urdu Jang, Karachi, stated by him that the same are in his name for his appearance on 25-8-2000. He has admitted that the same notices were received by him through OCS Courier having the same address. He further admitted that in his application and in affidavit in evidence he has not mentioned regarding remained unserved with UMS or Courier Service. He however, has denied that since inception of the proceedings of the Court he was in knowledge of the proceedings and that he has moved the instant application under section 12 of Banking Companies Act, 1997 due to fear of his arrest.
He stated that he resigned from Directorship of defendant No.1 in 1994, however, has admitted that such information was given for Form-29 on 19-8-1996 as per Exh.D/3. He admitted that he has not produced any copy of resignation in this case.
Defendant/J. D. No.5 has further admitted that he is still share-holder in the J.D. No.1 and has stated that he got annexure-A, i.e. the letter of consent (filed together with his affidavit) from Company's record, bears his forged signature. He has produced the same as Exh.D/5/9. He denied in collusion with the other defendants, Exh.D/5/9 is fabricated to create a false defence in this case. He stated that no case against defendant No.2 has been filed by him for cancellation or declaration regarding guarantees.
The testimony shows that the defendant/J.D. No.5 nowhere in his cross-examination has controverted about the addresses on summons, notices and even on Show-Cause Notices of arrest that the addresses on Exh.D/5/1, Exh.D/5/3, Exh.D/5/4, Exh.D/5/5, Exh.D/5/6, Exh.D/5/7, Exh.D/5/8, nor on the publications. It is not stated by him while producing the summons, notices, show-cause notice of arrest and publications of newspaper that during the period of their issuance he was residing on some other place and having some other address permanent or ordinary residences and that not residing on 36-Sarwar Road, Lahore. Even Form-29 which is produced by himself bearing his address 36-Sarwar Road, Lahore, Cantt. Not a single line has been controverted while production of the above Exhibits shows that those were not sent or delivered on his addresses. It has been held in PLD 1989 Supreme Court 503 Rashid Ahmed v. Messrs Friends Match Works that burden to prove that the addressee of the notice did not receive it would be on the addressee when notice was properly addressed and was sent by registered post. It has been held in 1996 SCM R 1230 Anjum Hayat Mirza v. Rehmat Khan letters having being sent/posted at the address written thereon, would be presumed to have been delivered at the address at which it was sent unless addressee proves that same was not delivered at his address. Show-cause notice of arrest was admittedly served upon the defendant/J.D. No.5 and admittedly same notice was received through OCS Couriers on the same address itself belies his own contention taken by him in his application that he was not served nor have had any knowledge about the proceedings of the suit and execution prior to the notice dated 2-8-2000. The information given on 19-8-1996 to Registrar Form 29 was also after institution of the suit and issuance of summons."
3. Mr. M. Rasheed Khan, learned counsel for appellant, vehemently contended that the appellant was resident of Lahore, summons and notices issued against the appellant in the suit were not served on him but service on him was held good only on the basis of publication of notice in some daily newspaper of Karachi, therefore, the Banking Court was not justified in dismissing the application of the appellant, thereby depriving the appellant of his right to contest the suit on merits.
4. We are not impressed by such submission of the learned counsel for the reason that even in his application the appellant did not deny the service of summons/notices in the suit issued to him from time to time through bailiff, courier service and other modes. The summons of the suit published in various newspapers were also published in the newspapers which are published from Lahore. Moreover, we have asked the learned counsel for the appellant to show us from the record that any where the appellant has denied the service of summons/notices issued to him at the time of institution of the suit and even thereafter. He candidly stated that the appellant has not done so specifically. After going through the impugned order and other material placed on record we are satisfied that the Banking Court has elaborately discussed and properly appreciated the evidence at the time of passing the impugned order dated 21-5-2002 and for cogent reasons dismissed the application of the appellant. The ratio of judgments followed by the Banking Court, as referred in the impugned order, was also fully attracted to the instant case.
5. In view of the above, we find no substance in this appeal which is accordingly dismissed in limine.