' For recovery of the interest based loan of Rs. 14,304,450.29, National Bank of Pakistan (respondent No,1) filed a suit in this Court under the Banking Companies (Recovery of Loans), Ordinance, 1979 against Rimini Garments (Pvt.) Limited and 8 others including the appellant. The loan was pleaded to have been advanced by respondent No,1 to respondent No,2 i.e. The company. Respondent No,2 was sued as the principal borrower while respondents Nos.3 to 9 and the appellant as guarantors.
2. The requisite summons were issued through all the prescribed modes including publication of the proclamation in Daily "The News" dated 14-10-1996, "Nawa-e-Waqt" dated 18-10-1996 and weekly "Kehkeshan". Respondents Nos.2, 5, 6 and 7 entering appearance jointly filed PLA No,34-B of 1996. Neither the appellant nor other respondents appeared before the Court wherefor through order dated 6-11-1996, they were proceeded against ex parte. Leave was allowed to the applicant respondents who also failed to pursue the suit thereafter and were thus proceeded against ex parte. Ultimately the decree dated 3-12-2001 was passed against respondents Nos.2 to 9 and the appellant jointly and severally for a sum of Rs. 14,304,450.29 along with the costs etc.
3. This decree was passed by the learned Banking Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001 which had by then been promulgated upon repeal of Ordinance XIX of 1979, Banking Tribunals Ordinance, 1984 and the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
4. During the execution proceedings, the appellant on 24-1-2003 filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 12(2) of the Civil Procedure Code (V of 1908) for recalling of the decree dated 3-12-2001 on the ground that the appellant was unaware of the suit and decree. And that the appellant being the permanent A resident of Toronto Canada was deliberately and fraudulently kept out of the proceedings by the respondent-Bank with whom the appellant's address at Canada was available. It was specifically pleaded by the appellant in ground 'G' and in para.5 of his application that he came to know of the decree on 18-12-2002 from his general attorney namely Mr. Waqar Awais i.e. a Director of Rimini Garments (Pvt.) Limited; the borrower company.
5. The learned Judge Banking Court IV, Lahore through order dated 1-11-2003 dismissed the appellant's application on merits as well as for being barred by limitation, hence the present appeal.
6. Confronted with the question of limitation, the learned counsel for the appellant repeated the submissions that the appellant came to know of the decree on 18-12-2002 and filed the petition on 24-1-2003 which, if considered under section 12(2) of the Civil Procedure Code, was within time although the same was beyond 21 days prescribed in section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In support of the proposition that section 12(2), C.P.C. Was applicable, the learned counsel for the appellant relied upon the cases of "M/ s. Dadabhoy Cement Industries Limited and 6 others v. National Development Finance Corporation, Karachi" (PLD 2002 SC 500) and "M/s. Dadabhoy Cement Industries Limited and others v. National Development Finance Corporation" (2002 CLC 166) to contend that the application under section 12(2) of the Civil Procedure Code was entertained by the Hon'ble Sindh High Court at Karachi though the same was dismissed on merits.
7. We have attended to the submissions of the learned counsel for the appellant and have also examined the record. The order of ex parte proceedings was passed against the appellant on 6-11- 1996. Ex parte decree was made jointly and severally against respondents Nos.2 to 9 and the appellant on 3-12-2001. The appellant filed the application for recalling the ex parte decree on 24- 1-2003 with a delay of about 13 months. As stated above, in ground 'G' and in para.5 of his application, the appellant admitted to have gained knowledge on 18-12-2002 of the ex parte decree from his the then general attorney i.e. Mr. Wagar Awais who the appellant admitted to be a Director in the company (respondent No,2).
8. Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides for a period of 21 days from the date of decree or from the date of the knowledge of the decree, for the application seeking an order to set aside the decree. As such, by appellant's own admission, his application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was beyond the period of limitation provided therein. _ ' The important fact bearing upon the bona fides as well as the knowledge of the appellant is his own admission that Mr. Wagar Awais, a Director of respondent No,2 was his general attorney from whom he came to know of the suit and the decree on 18-12-2002 when he allegedly came in contact with Mr. Wagar Awais. As per the document of general power of attorney dated 10-1-2003 granted by the appellant to his real brother Mr Zafar-ulHaque (placed at page 10), general power of attorney given to Mr. Wagar Awais on 15-5-2000 was revoked. As such Mr. Wagar Awais was admittedly the appellant's general attorney from 15-5-2000 to 10-1-2003. Mr. Wagar Awais also held the position of a Director in the respondent-Company. He thus cannot be presumed to be unaware of the suit and the ex parte decree dated 3-12-2001 passed against the company and others including his principal i.e. The appellant. Furthermore, it has not been so pleaded by the appellant or deposed through an affidavit by Mr. Wagar Awais that as the general attorney of the appellant and as Director of the company, he had no knowledge of the suit proceedings and the ex parte decree.
9. Under the principles of Agency, knowledge of a duly appointed agent is the knowledge of his principal arid vice versa. Intriguingly, general power of attorney in favour of Mr. Waqar Awais has been withheld and not placed on record by the appellant, thus leading to the adverse presumption against the appellant. Furthermore it is not the case of the appellant that such power of attorney was for a purpose other than to pursue on behalf of the appellant the affairs of the company and the litigation arising therefrom. The appellant thus cannot be believed to be unaware of the suit and the decree.
10. The passport placed upon the record also shows that the appellant had been visiting Pakistan during the pendency of the suit. The appellant's lack of knowledge about the pending litigation against him therefore cannot be presumed.
11. Under the above explained circumstances, we cannot subscribe to the plea of fraud or misrepresentation attributed by the appellant to the respondent-Bank.
12. The provisions of section 12(2) of the Code of Civil Procedure have no applicability to the proceedings arising under the Financial Institutions (Recovery of Finances) Ordinance, 2001 as has been conclusively and consistently held by this Court in the cases of "M/s. Gold Star International and another v. Muslim Commercial Bank Limited" (2000 M LD 421), "M/s. Pakistan Kuwait Investment Company (Pvt.) Limited v. Bank Al-Falah Limited and 11 others" (2003 CLD 676), "M/s. Mushtaq & Co.
Through Managing Partner and 3 others v. M/ s. National Bank of Pakistan" (2004 CLD 1573), "United Bank Ltd. v. M/ s. Zafar Textile Mills Ltd." (2000 CLC 1330) and "Life Paper Store through Managing Partner Sh. Ghulam Hussain and 3 others v. Bank of Punjab and 3 others" (2001 YLR 77).
' In the case of "M/s. Dadabhoy Cement Industries Limited v. National Development Finance Corporation, Karachi" (PLD 2002 SC 500), the Hon'ble Supreme Court of Pakistan only held that the consent decree did not suffer from fraud, misrepresentation or want of jurisdiction therefore the same was not amenable to challenge under section 12(2), C.P.C. Applicability of section 12(2), C.P.C.
To the proceedings under the Banking Laws was neither the litigated question before the Hon'ble Supreme Court of Pakistan nor was the same ruled upon in the cited case. In the present case also the appellant has not been able to show or prove the plea of fraud or misrepresentation.
' Under these circumstances, the impugned order dated 1-11-2003 passed by the learned Judge Banking Court IV, Lahore is upheld. This appeal is dismissed with no order as to costs.