Through the instant appeal under section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, the appellant/judgment-debtor have called in question order dated 20-7-2006 passed by the learned Judge Banking Court No.II, Lahore, whereby the application of the appellant under sections 12 and 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside the ex parte judgment and decree dated 28-2-1995, was dismissed.
2. The brief facts succinctly required are that the Bank/ respondent filed a,suit for of Rs.7,538,000 on 2-1-1995 under the then Banking Tribunal Ordinance, 1984 pleading therein that the appellant had availed certain financial facilities and a sum of Rs.7,538,000 is still outstanding against the appellant. On filing of the suit, the learned Judge Banking Tribunal issued show-cause notices to the appellant under section 60 of the Banking Tribunal Ordinance, 1984 through different modes such as notices were issued by the registered post as well as notices were served through the Bailiff of the Court and through proclamation published in the newspaper Daily "Mashriq" dated 14-1-1995. The notices through the Bailiff were served upon the appellant through affixation while the notices sent through registered post were not received back and as such were presumed to have been served upon the 'appellant but no reply to the show-cause notice having been filed the suit was decreed ex parte under section 6(4) of the Banking Tribunal Ordinance, 1984 vide judgment and decree dated 28-2-1995. After passing of the ex parte decree the appellant/judgment-debtor after a period of 11 years moved an application under section 12 of the then Banking Tribunal Ordinance, 1984 read with sections 12 and 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside the ex parte judgment and decree' dated 28-2-1995 contending therein that the appellant/judgment-debtor Is permanent resident of London. He opened the account with the Central Branch of the plaintiff at Karachi and mortgaged his personal property in the year 1989 situated at Fane Road, Lahore; that the appellant withdrew a sum of Rs.7,420,000 and deposited Rs.65,773,383 from 1-12-1989 to 24-9-1990 and a siim of Rs.58,353,383 was lying in his account as credit balance, It was alleged that the respondent-Bank filed the suit for the recovery of Rs.7,538,000 against the appellant/ judgment-debtor by giving wrong address of the appellant in order to obtain an ex parte decree; that the appellant came to know about the ex parte judgment and decree dated 28-2-1995 when he met the bank officials on 4-7-2006; that the respondent-Bank has committed fraud by intentionally mentioning the wrong address of the appellant in the plaint although the respondent-Bank was aware of the change,of address before filing of the suit.
3. The said application of the appellant was dismissed by the learned Judge Banking Court vide order dated 20-7-2006, hence, this appeal.
4. It is urged that the appellant had not been served in accordance with law. The plaintiff intentionally mentioned the wrong address of the appellant in the plaint; that reference is drawn to the letter dated 9-6-1993 addressed by the respondent-Bank to the appellant; that before 4-7- 2006 the appellant was not aware of the passing of the ex parte judgment and decree dated 28-2- 1995 and the respondent had never disclosed regarding the fact of passing of the ex parte decree in other proceedings pending before the Company Judge of Lahore High Court, Lahore between the appellant and the respondent-Bank; that the application of the appellant had been filed before the trial Court without delay; that the learned Judge Banking Court by declaring the appellants to be fugitive from law has erroneously dismissed the application of the appellant: same should have been accepted. Reliance is placed on the case of Messrs Bashir Leather Int. (Pvt.) Limited and 2 others v. Muslim Commercial Bank Limited through Manager 2006 CLD 132.
5. Arguments heard, material available with this appeal perused.
6. Admittedly the application of the appellant under sections 12 and 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside ex parte judgment and decree dated 28- 2-1995 had been moved on 18-7-2006 after a lapse of a period of more than 11 years after passing of the ex parte judgment and decree against the appellant. The learned Judge Banking Court No.II, Lahore, vide order dated 20-7-2006 has held that after passing of the ex parte decree the appellant's company Messrs Naqvi Developers and Builders as well as the respondent-Bank were in liquidation proceedings before the learned Company Judge of Lahore High Court Lahore and concluded from this fact that the parties were undeniably in litigation for a long period and it was not believable that the appellant was not aware of passing of the ex parte judgment and decree dated 28-2-1995. Learned Judge Banking Court further held that after passing of the ex parte decree the execution proceedings were initiated in the year 1996 wherein legal proceedings including notices had also been issued and the publication of the schedule of auction had also been published. The execution proceedings were being conducted also for a long duration of ten years as such it was unbelievable that the appellant came to know about the ex parte decree on 4-7-2006 for the first time; that there has been no explanation of delay. The petition of the appellant was dismissed being barred by time by 11 years. It was further observed that it was only when the warrants of arrest of the appellant were issued for the satisfaction of the decree that the appellant had submitted the instant application for setting aside the ex parte decree. The learned counsel for the appellant has not been able to substantiate his claim that the appellant had changed his residence prior to the filing of the suit. The learned counsel for the appellant stated that the appellant was living abroad in London and thereafter he relied upon the letter dated 9-6- 1993 wherein the letter addressed by the respondent- Bank to the appellant is of the address at Islamabad. The appellant has not been able to put on record any letter wherein the appellant had informed the respondent-Bank regarding the change of his residence and it is now well-settled law that the addresses provided by the borrower to the bank which they are in the knowledge of, would be considered to be the address of the borrower.
Moreover, all the documents executed by the appellant also beafs the address given in the plaint.
Learned counsel for the appellant has also not been able to produce any document or even the number of the liquidation proceedings pending before the Company Judge in which the appellant and the respondent-Bank were parties to show that the execution petition was concealed before the Company Judge, rather when the liquidation proceedings are pending it is with the permission of the Company Judge that the suit or execution proceedings are allowed to proceed with Its permission. Moreover, the report of the Bailiff- is that the office was closed and the notice was affixed outside the office. On the personal notice upon the appellant it is not stated that the office was closed rather it was stated that the appellant was not present and the said notice had been affixed outside the office.
7. In view of the above perspective, the appellant has failed to substantiate his contentions and to satisfy us with any tangible material to set aside the impugned order. The learned Judge Banking Court No.II, Lahore, has rightly passed the impugned order, as such; we, are not inclined to interfere in the same. The judgment relied by the learned counsel for the appellant differs from facts and circumstances of this case, therefore, the same cannot be relied upon. We find no merits in this appeal; therefore, the same is dismissed in limine