' Through this appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance 2001 (hereinafter referred to as Ordinance of 2001), the judgment and decree respectively dated 7- 8-2008 and 9-9-2008, passed by Banking Court II, Karachi, in Banking Suit No,184 of 2008, have been impugned by the appellants.
2. Briefly stated, the relevant facts of the case are that a suit for recovery of Rs,4,659,920.38, instituted by respondent No,1, against the appellants and respondent No,2, after dismissal of their leave to defend application and application for condonation of delay vide order dated 20th May, 2008, was decreed in the sum of Rs,46,58,120.38.
3. Mr. Saalim Salam Ansari, learned counsel for the appellants has mainly questioned the legality of the order dated 20-5-2008, on the ground that as per the claim of the appellants, the service of summons in the suit was affected on them through bailiff on 19-4-2008, as they had no knowledge about publication of notices in daily "Jang" and "Dawn" on 2-4-2008, therefore, the applications for leave to defend and for condonation of delay submitted by them on 3-5-2008 were within the stipulated period of thirty days, provided under section 10(2) of Ordinance of 2001. Further contention of learned counsel is that Banking Court misdirected itself when it had observed in the impugned order dated 20-5-2008 that since the suit was fixed before it on 28-2-2008 and ex parte order was passed against the appellants on 2-5-2008, therefore, the appellants should have approached and filed application before the Banking Court on such dates, but they failed to do so.
4. Mr. Ijaz Ahmed learned counsel for the respondents has supported the impugned order dated 20-5-2008 by taking the plea that not only publication of notices in daily "Dawn" and "Jang"
Karachi, was effected on 2-4-2008 but service of summons on the appellants through courier service was also legally made much earlier, due to the refusal of addressee. Learned counsel, however could not controvert that service through courier, due to alleged refusal by the addressee, as well as through publication was only presumptive in nature, therefore, if any party had disputed service of summons by such modes, this aspect of the case was to be examined by the Banking Court carefully before recording its conclusion. Referring to the merits of the leave to defend application submission of the learned counsel is that neither the appellants and respondent No,2 have denied availing of finance facility by them from the respondent No,1, nor they have denied the fact that the payment of outstanding sums was not made by them to the respondent No,
1. He lastly urged that in the memo. Of appeal before this Court again such clear admissions have been made from the appellants side, therefore, it is a fit case where judgment and decree at least to the extent of principal amount paid to the appellants should be maintained.
5. We have heard learned counsel for the parties and perused the material available on record. In the leave to defend application and the application for condonation of delay, appellants have made categorical statement, by way of affidavit of Mr. Aamir Malik that they had no knowledge about the publication of summons made in the two newspapers dated 2-4-2008, and they acquired knowledge only on service of summons through bailiff. Therefore, there was no substantial material available before the Banking Court to pass an order to the contrary. The view taken by the Banking Court that as they had acquired knowledge of pendency of suit on 19-4-2008, but failed to move the application for leave to defend before the Court on 28-4-2008, when as per summons, the suit was fixed before the Banking Court and even thereafter on 2-5-2008, when ex parte order was passed against the appellants is not based on proper appreciation of relevant facts of the case. In our view, once the Appellants have pleaded service of summons in the suit on 19-4-2008, 30 days period of limitation prescribed under section 10(3) of the Ordinance of 2001 was to be computed from that date, and mere non-filing of application on 28-4-2008 or 2-5-2008 will not justify rejection of their application for leave to defend filed on 3-5-2008, on such ground. The Banking Court while dealing with the two applications of the appellants also failed to consider that under the proviso to section 10(2) of the Ordinance of 2001, it had ample powers to condone delay, if any, in the filing of leave to defend application if the defendant could satisfy the Court that he had no knowledge of summons through publication in Newspapers.
6. After careful examination of whole record, we are satisfied that leave to defend application moved by the appellants before the Banking Court was within time and therefore, the Banking Court should have proceeded and decided it on merits.
7. We, therefore, set aside the impugned order dated 20-5-2008 with directions to the Banking Court to decide leave to defend application of the appellants in accordance with law.
8. Before parting with this order, we may also observe that we are not in agreement with the arguments of learned counsel for the respondent No,1 that the fate of the leave to defend application submitted by the appellants before the Banking Court may be decided by this Court on merits. As such course, if followed by the Appellate Court, unless consented by the parties, may deprive the aggrieved party of his legitimate right to challenge it before the higher forum. However, to expedite the disposal of suit, the Banking Court is directed to decide the leave to defend application of the appellants within one month from the date of communication of this order.