Instant first appeal is directed against the order dated 26-2-2004 passed by the learned Judge Banking Court-I, Gujranwala, whereby appellant's application for setting side the ex parte decree dated 26-1-2002, was dismissed.
2. Succinctly, relevant facts are that respondent No.1 filed a suit for recovery of Rs. 13,38,986.72 regarding finance facility availed by respondent No.2 at Habib Bank Ltd. Sharjah Branch. Appellant was impleaded as defendant No.2 as he had given undertaking to the Bank for discharging financial obligations of respondent No.2. The Banking Court concerned issued notices to the appellant as well as his co-defendant/respondent. No.2 through different modes including citation in daily newspapers, but both of the defendants did not appear and were proceeded against ex parte resulting in ex parte judgment/decree dated 26-1-2002 in favour of respondent No. 1.
3. Appellant on 1-6-2002 filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, for setting aside the ex parte decree on the ground that the same came to his knowledge on 8-5-2002 when notice under Order XXI, rule 66, C.P.C. was served on him.
Appellant further pleaded that he was not served through any notice issued in the suit by the Banking Court and report of the Bailiff in this behalf was defective. It was also claimed that address of the appellant was incorrectly mentioned by respondent No.1, hence the publication in newspaper also did not come to his knowledge as the same was not dispatched at his correct address and that he was wrongly impleaded in the suit because he was not a loanee, guarantor or surety of the original loanee i.e. respondent No.2. The learned Judge Banking Court through the impugned order dismissed the application of the appellant and he has now filed this appeal for setting aside the order dated 26-2-2002.
4. Learned counsel for the appellant submitted that in the first hand the petitioner was not liable to be sued on the basis of any undertaking allegedly executed by the appellant subsequent to the availing of facility by respondent No.2 and that, his address was incorrectly mentioned in the suit, hence he was not served. It was further submitted that no personal service of the appellant was effected and the reports of the process server were manoeuvred by the bank officials.
5. Learned counsel for the respondents refuted the arguments of the appellant and supporting the impugned order, argued that service of the appellant was effected not only through affixation of notice on his outer door but the notices issued through courier service were received by him. It was further emphasized that service of the appellant was lawfully effected through publication in newspaper which was dispatched at his address, which was correctly mentioned in the plaint.
6. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, with their assistance. In the plaint filed by respondent No.1 address of the appellant is given as "3-Wasu Road. Mandi Bahauddin". Appellant in his own Memo. of appeal has given the same address which was mentioned as "B-III-52 Wasoo Road, Mandi Bahauddin".
In view of this there was no misdescription of address of the appellant, given by the Bank. No doubt, the appellant had not availed the finance facility but being real uncle of respondent No.2 undertook the responsibility of paying the finance availed by respondent No.2 through a writing dated 193-2001. The relevant portion of letter of appellant addressed to Ghazi Nasir Parvaiz, Senior Vice-President, ARM-International Habib Bank Limited, Head Office, 10 HB Plaza, Karachi, reads as under:-- "In order to clearing the outstanding liabilities and disposing of the subject case in a better way, I being the head/guardian of the family of Mr. Zubair Ahmed son of Muhammad Siddiq (late), considering my moral obligation, render my humble monetary services to settle the issue and pledge for laying off the complete mark-up along with positive decision for manageable monthly instalments for remaining liabilities."
The above reproduced undertaking of the appellant, left no doubt that he was not correctly arrayed as a party to the suit.
7. Appellant's application, itself narrated that ex parte decree came to his knowledge on 8-5-2002, whereas the application was filed on 1-6-2002. Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provided a period of 21 days for filing such application, hence the same being barred by limitation, the appellant was required to explain each days delay, which was not done by him by giving reasons, thereof. Appellant did not move any application seeking condonation of delay along with any affidavit swearing correctness of reasons for the condonation.
Besides it, notice to the appellant and respondent No.2 were directed to be issued by the Banking Court through four different modes. The bailiff deputed to execute summons, effected the service through fixation. The summons remitted under postal cover acknowledgement due were refused to be accepted but these dispatched through TCS were delivered. Record revealed that publication in newspaper daily "The Nation" dated 14-10-2001 and daily "Sahafat" dated 15-11-2001 were not only published but were also dispatched at the address of the appellant. File is absolutely thirsty of the proof to the effect that appellant or any other his family member did not read the notice so published, in spite of receipt of those newspapers at his residence. We have no doubt that appellant was not only personally served but he was also aware of the pendency of the suit against him and he intentionally avoided appearance before the trial Court where he was supposed to file a petition seeking leave to defend the suit within ten days of service of summons.
8. For the reasons noted above, appellant's application for setting aside ex parte decree was correctly dismissed as the same did not furnish sufficient cause in support of the relief prayed. The Banking Court correctly concluded the lis and did not commit any illegality, hence this appeal having no merit in it is dismissed with no order as to costs.