' IJAZ UL AHSAN, J.---The plaintiff is a banking company incorporated and organized under the laws of Pakistan. It is a financial institution as defined by section 2(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO"). It has its registered office at 4th Floor, Habib Bank Tower, Jinnah Avenue, Islamabad and a Branch office known as Bur Dubai Branch, Khalid Bin Waleed Road, P.O. Box No,2759 Dubai, United Arab Emirates. This suit has been instituted and filed through Mr.. Loung Rathore and Mr. Tariq Masood Ansari, who are the Principal Officers of the Bank and have been duly authorized through Powers of Attorney dated 14-12-1981 and 30-6-1980 respectively to institute, sign, verify, file and prosecute this suit and depose about the facts and circumstances of the case.
2. It is alleged in the plaint that the defendant along with Parameswaran Mohan Parameswaran applied for grant of a loan for a company under the name and style of Maham Impex LLC FZE (The Company) incorporated under the laws of UAE and conducting its business in the said country. The record indicates that the matter was duly processed and a loan facility was sanctioned. A sanction advice dated 14-7-1999 was accordingly issued by Bur Dubai Branch of the plaintiff bank sanctioning a credit facility in the aggregate sum of Arab Emirates Dirhams (AED) 3.4 million. The loan facility was divided into the following categories:--
(i) Letters of Credit. . (ii) PAD (Sub-limit of L/C).
(iii) Finance against Trust Receipt.
(iv) Facility of overdraft:
(v) Local Bills Discounting etc. ' The aforesaid facilities were secured, inter alia, by the personal guarantees of Parameswaran Mohan Parameswa ran and the defendant.
3. The aforesaid facility was subsequently renewed vide facility renewal letter dated 2-8-2000.
Through the said letter, the earlier loan facility of AED 3.4 million was reduced to AED 2.9 million. The loan amount was disbursed and duly utilized by the company from time to time for the purposes of its business. However, the company defaulted in its repayment obligations. This led to a suit being filed by the plaintiff bank in the court of first instance at Dubai. Maham Impex LLC FZE, Parameswa ran Mohan Parameswa ran and the defendant were arrayed as defendants in the said suit. The record indicates that only Azam Majeed, the defendant herein contested the suit. A trial was conducted, in which the defendant filed his written statement and was duly represented at all stages. Vide judgment and decree dated 26-11-2002, the suit filed by the plaintiff bank was decreed in the sum of AED 2,774,292.30 along with annual interest @ 12% from the date of filing of the suit till recovery. A certified copy of the original judgment and decree along with a certified copy of translation duly attested by the Consulate General of Pakistan has been placed on record.
4. The aforesaid judgment and decree were challenged in appeal by the defendant before the Court of Cassation, the appellate forum, under the laws of UAE. The appeal did not succeed and was dismissed vide order dated 28-11-2004. On the basis of the aforesaid judgments and decrees, the present suit has been filed with the prayer that a decree be passed in favour of the plaintiff and against the defendant for an amount of. AED (Arab Emirates Dirhams) 5,562,456.30 equivalent to Pak Rs,129,972 910.15. The said amount has been calculated by converting the aforesaid AED amount into Pak Rupees @ Rs,23.3661 for AED 1.00 as on 13-8-2010. Further, interest @ 12% per annum from the date of filing the suit i.e. 31-3-2002 to 15-8-2010 has been calculated and included in the claim, regarding which an account statement has also been placed on record.
5. I have heard the learned counsel for the plaintiff and gone through the entire record with his assistance.
6. The first question that arises for determination in this suit is that in a situation where loan facilities have been granted by a Pakistani Bank having overseas branches, a foreign court has decreed a suit filed by the bank and a defendant is residing within the jurisdiction of this Court, whether this Court would have jurisdiction in the matter. The said question has been examined by this Court in various cases and has been answered in the affirmative. In Emirates Bank International Ltd. v. Messrs Oosman Brothers and 9 others (1990 M LD 1779), it was held:- "In view of the fact that the defendants after having been served with the summons by Bailiff Registered Post and publication, have chosen; (1), not to appear on the date mentioned in the publication, i.e. 30-10-1989, and the summons by Bailiff and the summons by registered post A/D, have become ex parte, and (2) by not having filed an application for leave to defend within 10 days of the above service have become liable to a decree under Order XXXVII, Rule 2, C. P. C. However, since the office objection had been raised, it will not be out of place to mention that upon obtaining a foreign judgment three courses are open to the Decree-Holder i.e. (1) that he can obtain execution of the foreign judgment by proceeding under section 44-A, of C.P.C., if the country from which the decree has been obtained is United Kingdom or any reciprocating territory and in that case he can outright obtain execution of that decree from the District Court of concerned District of Pakistan, and that he need not file a suit even and need not go through the procedure prescribed, for the trial of the 'suit, (2) that he can file a suit in Pakistan on the basis of the foreign judgment treating it as the cause of action. In that case, if the conditions prescribed in section 13, C.P.C. Are fulfilled, the judgment is conclusive between the parties and otherwise it is res judicata between them and as such Courts in Pakistan are bound by its findings. Such suit, however, is to be filed, within the period of six years from the date of that judgment as provided under Article 117 of the Limitation Act, or (3) that he can file a suit on the original cause of action as it does not come to an end after passing a foreign judgment, but remains intact until and unless that foreign judgment is satisfied. However, if the conditions mentioned in section 13 are not satisfied, then the decree will be open to collateral attack in Pakistan. In view of section 1(3) read with section 2(a) of Banking Companies (Recovery of Loans) Ordinance, 1979 the provisions of the said Ordinance are applicable to the plaintiff Bank. There is nothing in section 13, C.P.C. Which has the effect of excluding the provisions of the above Ordinance to a suit on foreign judgment."
' Likewise, in the matter of Habib Bank Ltd. v. Messrs Virk House Trading Company Ltd. (2009 CLD 451), this Court examined the question of jurisdiction of this Court and held as follows:-- "The suit of the plaintiff is based on foreign judgments. Section 2(6), of C.P. C. Pertains to a foreign judgment and it refers to decree or order of a foreign Court. Three courses are open to a decree- holder in whose favour foreign judgment has been passed. The decree-holder, can seek execution of the foreign judgment under section 44 or 44-A of C.P.C., where these provisions are applicable.
Second available course is filing of the suit on the basis of foreign judgment, treating it to be the cause of action, subject to limitation under Article 117 of the Limitation Act. Thirdly, a suit can be filed in the Court of competent jurisdiction in Pakistan on the basis of original cause. Foreign judgments can be enforced in Pakistan by filing a suit, in which the cause of action is the foreign judgment. The reference in this regard can be made to the cases of "Mian Nazir Ahmad v. Abdur Rashid Qureshi 1986 CLC 1309, "Gangull Engineering Ltd. v. Smt. Sushila Bala Dasi and another "AIR 1957 Cal. 103 and Popat Virji v. Damodar Jairam" AIR 1934 Bombay 390. The Banking Court can entertain a suit in a similar manner as has been held in the case of "Emirates Bank Intl. Ltd. v.
Messrs Osman Brothers and 9 others" 1990 MLD 1779."
' In United Bank Limited Vs. Naeem Ullah Malik and 2 others (2009 CLD 1459), this Court again examined the law on the question of jurisdiction of Banking Courts in Pakistan and came to the following conclusion:-- "Foreign judgment of the Dubai Court of First Instance, has been perused. It's perusal reflects that the defendants were summoned and re-summoned but they did not attend the Court. According to Article 53 of the Civil Procedure Law (Law of Dubai). Such judgment is considered as judgment passed in presence of the parties. Defendant No,4 (defendant No,1 herein) appeared before the foreign court. So was the case of Hajvairy Textile Mills Ltd. They contested the suit. Learned Court considered the memorandum, containing their pleadings and the request for dismissal of the suit to their extent. Learned Court after considering whole evidence and after it's due appraisal, passed the decree. The Court absolved Hajvairy Textile Mills Ltd. And Mr. Mouiz Sultan, of the liability again which the bank went into appeal. Dubai Court of Appeal accepted the appeal vide judgment dated 25-5-1998 and bound the Hajvairy Textile Mills Ltd. And Mouis Sultan for value of unpaid cheques and confirmed rest of the judgment of Dubai Court of First Instance. These judgments are by Court of competent jurisdiction, given on merits of the case and founded on correct view of law applicable. The judgments do not breach any law in force in Pakistan and do not offend the principle of natural justice. The judgments are conclusive and binding.
' Defendant No, 1, on his return from abroad is residing within the jurisdiction of this Court, which fact is evident from the perusal of the address, which the said defendant has himself provided in the title of his appeal. The other defendants are also residing, working for gain and carrying the business within the jurisdiction of this Court. The plaintiff has it's regional office at Davis Road, Lahore and relevant record of the instant controversy, gone through the record and have no hesitation to hold that this Court has the jurisdiction over subject-matter; over parties and the territorial jurisdiction. The suit was competently filed in this Court and it does not suffer from any jurisdictional flaw."
7. Further, it is settled law that where there is a direct connection between the bank established and registered in Pakistan having a branch office in a foreign country, the defendant is within the jurisdiction of this Court and three ingredients prescribed in the Financial Institutions A (Recovery of Finances) Ordinance, 2001 to confer jurisdiction, namely existence of relationship of Banker and Customer between the plaintiff and the defendant, availing of financial facility by or on behalf of the defendant and the bank falling within the definition of financial institution under the FIO are available, this Court would have jurisdiction in the matter.
8. From a perusal of the record, it is apparent that the plaintiff is a duly registered bank under the laws of Pakistan and falls within the definition of a financial institution under the provisions of the Ordinance. It has a branch office in Dubai which granted the loan. Further, the defendant had issued his personal guarantee in favour of the bank. A guarantor falls within the definition of customer as defined in section 2(c) of the FIO. Consequently, the relationship of customer and banker exists between the parties. Finally, the facilities were availed by/on behalf of the defendant, repayment of which were guaranteed by way of issuance of personal guarantee by the defendant.
The defendant statedly resides within the jurisdiction of this Court. A foreign court of competent jurisdiction has issued a decree against him after a trial on the merits of the case. Consequently, all three ingredients that confer jurisdiction on this Court are present. It is, therefore, held that this Court has the jurisdiction to entertain and adjudicate upon this matter.
9. The next question that needs to be considered by this court is, whether a court of competent jurisdiction in Dubai had issued a judgment and decree against the defendant and whether the suit was decided on merits. The record indicates that the defendant was duly served, he contested the suit on merits and he was granted an opportunity to defend himself through counsel. In Virk House Trading Company (2009 CLD 451), it was held:-- "The aim of rules of natural justice is to secure justice. The rule was originally based on two principles namely, (1) No one should be condemned unheard (Nemo debet esse judix propria causes) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Then a third principle/rule emerged that judicial or quasi-judicial forum, must hold enquires in good faith, unbiased and not arbitrarily or unreasonably."
' Reference in this regard may also be made to "Chairman Board of Mining Examination and Chairman Inspector of Mines v. Ramjee" (AIR 1977 SC 965) where it was observed:- "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all, If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential pro-cessual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice , can be complained of unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter."
10. The record indicates that a Bench consisting of three honourable Judges of the Court of First Instance at Dubai, chaired by Judge Ramadan Hasanain and two other Judges namely Dr. Muhammad Ahmed, Al Shirbini and Mr. Saeed Hilal Humaid Al Zaabi conducted the trial. They heard the defendant, examined the documents, went through the pleadings and other relevant record brought before them and after a proper trial; found the defendant liable for payment of the suit amount, The learned Court considered inter alia the following documents:-
(i) claim/pleadings/documents filed by the plaintiff bank;
(ii) copy of application form for opening current account in the name of the company;
(iii) copy of the facility letter issued by the plaintiff bank;
(iv) copy of the letter of guarantee issued by the defendants including the defendant herein;
(v) copy of the bank statement indicating the principal amount as well as interest;
(vi) the reply filed on behalf of the defendants herein raising legal and procedural objections; and
(vii) an application filed on behalf of the defendants seeking rejection of the pleadings in terms of Article 1092 of the E Civil Transactions Federal Law of Dubai.
11. After examining the aforesaid documents and other evidence produced by the plaintiff and the defendant, the learned court came to the conclusion that the plaintiff had succeeded in establishing its case and decreed the suit in the amount of AED 2.774.292:30 (Two Million and Seven Hundred and Seventy Four and Two Hundred and Ninety Two Dirham and Thirty Fills) and annual interest @12% from the date of claim, till payment.
12. The Court of Cassation Dubai (Appellate Court) consisting of six honourable Judges heard the appeal filed by the defendant. After hearing the defendant, the appellate court dismissed the appeal on 28-11-2004. No further appeal was filed. The judgment and decree against the defendant has, therefore, attained finality. A certified copy of the judgment and decree of the appellate court with its translation is available on the record. In the absence of any material to the contrary, the aforesaid judgments are presumed to be pronounced by the courts of competent jurisdiction within the contemplation of section 14 of the C.P.C. There is nothing on record to show that the foreign judgments upon which, the plaintiff has based its suit fall within any of the exceptions enumerated in section 13 of the C.P.C. The aforesaid judgments and decrees are, therefore, conclusive and binding on the defendant. These can furnish cause of action and basis to maintain this suit.
13. Coming to the question of limitation, it may be noted that the original judgment and decree was passed by the court of first instance on 26-11-2002. An appeal was filed against the aforesaid judgment and decree. The appellate court dismissed the appeal on 28-11-2004.
14. Article 117 of the Limitation Act prescribes a period of six years from the date of judgment for filing of suit upon a foreign judgment as defined in the Code of Civil Procedure. An appeal is a continuation of the suit. Even otherwise, a suit for execution of a foreign decree, which had not attained finality, and was under challenge before an appellate forum, could not have been filed in Pakistan. It, therefore, follows that the period of limitation would start from the date that the appeal filed by the defendant was dismissed by the appellate forum on 28-11-2004 when the judgment and decree attained finality. Reckoned from the said date, the plaintiff had six years to file the present suit. The present suit was filed on 25-11-2010 the same was therefore within time. I am fortified in my view by the law laid down in "Messrs Farm and Foods International through Attorney v. Hamid Mahmood" (2006 CLC 492), where it was held that the suit for enforcing a foreign judgment can be filed within six years from the date of such judgment. The starting point of limitation for the purpose of enforcement of such judgment would be from the date of the appellate decree. It is settled law that the original decree merges in the appellate decree and it is only logical that limitation should start from the date when the decree attains finality. In this regard, reference may also usefully be made to Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCM R 241) and Baijnath Karnani v. Vallabhdas Damani (AIR 1933 Madras 511).
15. The present suit was filed on 25-11-2010. It came up for hearing on 30-11-2010 before this Court.
On the said date, the suit was registered and summonses were directed to be issued in Form-IV in Appendix B to the Code of Civil Procedure, 1908. It was directed that the defendant shall be served through ordinary mode, registered post acknowledgement due and by courier service. It was further directed that the notices shall also be published in "The News" and "Nawa-i-Waqt" for 20-1- 2011. It appears that the defendant was not served in person. However, service was effected through publication of citations in the newspapers, which appeared on 13-12-2010. In terms of section 9(5) of the FIO, service duly effected in anyone of the aforesaid modes shall be deemed to be valid service. Despite service, no one entered appearance to represent the defendant.
Therefore, vide order dated 20-1-2011, the defendant was proceeded against ex parte.
16. I have also gone through the plaint and the documents attached with the plaint. The plaint is supported by two sanction advice letters dated 14-7-1999 and 2-8-2000. Further, certified copies of the judgment and decree passed by Dubai Court of First Instances and its duly attested translation as well as judgment and decree of the Court of Cassation, Dubai (the Appellate Court) and its duly attested translation have been placed on record.
17. I have also gone through and scru tinized the accounts statement, which has been duly attested in accordance with the Bankers Book Evidence Act. There is a presumption of truth attached to it.
The accounts statement indicates that as of 26-2-2002, the following {{TABLE}}amounts were due and payable by the defendant to the plaintiff bank:-- Facility Principal AmountInterest Total Trust Receipt 494,455.32 99,273.44 593,728.76 PAD 1,793,429.00 348,693.43 2,142,122.43 Local Bill Discounting33,740.00 4,701.11 38,441.11 Total 2,321,624.32 452,667.98 2,774,292.30
18. It is noticed that the learned court of First Instance at Dubai as well as the first appellate court had granted interest to the plaintiff bank @ 12% per annum from the date of filing of the suit i.e. 31- 3-2002 until N repayment of the entire amount. The plaintiff bank has calculated interest in the aggregate amount of AED 5,562,456.30 on the decretal amount which is due and payable as of 15- 8-2010. The accounts statement supports the said figure.
19. Finally, it is to be determined whether or not the plaintiff is entitled to claim interest on the decretal amount under the laws of Pakistan. Under the Islamic modes of finance, recovery of interest on finance is prohibited. However, in this regard, reference may be made to State Bank of Pakistan Banking Control Department, Central Directorate Karachi, BCD Circular No,13 dated 30-6- 1984. The said circular creates an exception in the case of foreign loans on which recovery of interest has been made permissible. The decretal amount arises out of a foreign 0 loan that was granted by the plaintiff to a foreign entity in Dubai under the laws of Dubai and the defendant had guaranteed repayment of the loan amount. Further, the judgments and decrees passed by the Court of First Instance at Dubai as well as the Appellate Court of the said country awarded interest .To the plaintiff at the rate of 12% per annum on the basis of the loan agreement executed between the parties. It was the said amount that the defendant had guaranteed to repay. As such, it is held that the plaintiff is entitled to recover interest at the rate of 12% per annum on the decretal amount from the date of filing of the suit till recovery of the decretal amount.
20. Despite service of notice, the defendant did not enter appearance or file application for leave to appear and defend the suit. Consequently, in terms of provisions of the Financials Institutions (Recovery of Finances) Ordinance, 2001 and relying on the case of Messrs Ahmad Autos and another v. A.B.L. (PLD 1990 SC 497), the allegations of fact in the plaint are deemed to be admitted.
Further, I have satisfied myself by carefully going through the judgments and decrees rendered by the Courts in Dubai as well as documents attached with the plaint and the accounts statement, which carries presumption of truth with it that the suit filed by the plaintiff is within time, this Court has jurisdiction, the claim of the plaintiff is valid and has earlier been proved before courts of competent jurisdiction after following due process of law. The learned courts at Dubai passed valid and legally enforceable judgments and decrees in favour of the plaintiff and against the defendant on the merits of the case which have attained finality.
21. For the reasons recorded above, a decree for a sum of Rs,129,972,910.15 along with interest calculated on the principal amount at the rate of 12% per annum from the date of filing of this suit till the date of realization of the decretal amount is passed in favour of the plaintiff against the defendant. Costs of the suit are also allowed to the plaintiff/decree-holder. Failure on the part of the defendants to satisfy the decree within a period of one month from today will result in execution of the decree forthwith without the need of a formal application for execution of the decree.
22. Order accordingly.