1. ' MRS, SYEDA TAH I RA SAFDAR, J. - - -I n stan t appeal has been filed by the appellant Muhammad Ali, feeling aggrieved of the order dated 7-9-2009 of Banking Court, Balochistan, Quetta, whereby his application for setting aside of ex parte judgment dated 12-4-2008, was rejected. It is contention of the appellant, that no notice was served upon him in respect of institution of the suit filed by the respondent No, 1 /National Bank of Pakistan. Further, the observations made by the trial Court, about circulation of newspapers in a Tehsil, is neither reasonable, nor in accordance with law. Further contended, that the trial Court has made an error while holding that the application has been filed after lapse of one year and four months, rather the delay was explained properly, which was not considered by the trial Court. It is contention of the appellant that he had not obtained any loan from the Bank, rather his status has been shown as guarantor of the principal debtor, with fraud. Further, the documents have been got prepared by the principal debtor in connivance of Bank officials. He never put his thumb impression on any of the documents. Thus in the circumstances, it is asserted that the impugned judgment and decree has been obtained through fraud. But the Banking Court, has failed to consider these aspects of the case, which resulted in grave miscarriage of justice. The appellant has prayed for setting aside of judgment- decree dated 12-4-2008 and also order dated 7-9-2009, further prayed that case be remanded to the Banking Court for conducting the proceedings on merits, in accordance with law.
2. ' Counsel for the parties are heard, while record is perused. The appellant is aggrieved of judgment dated 12-4-2008, of Banking Court Balochistan, Quetta, whereby the suit filed by respondent No,1/National Bank of Pakistan for recovery of Rs,12,908,54 with future mark up, cost of fund and cost of suit, was decreed, while defendants/ respondents Nos.2, 3 and present appellant were severally and jointly declared liable for payment of decretal amount. It is further apparent that the Bank sued respondent No,2 as principal debtor, while respondent No,3 and the appellant were sued in capacity of sureties/guarantoRs, It is further apparent from record, that after registration of suit, notices were issued in names of the defendants/respondents Nos.2, 3 and appellant, through registered post, and it was also ordered that publication be made in Daily Ba-Khabar, Quetta and Balochistan Times Quetta. In compliance thereof notices were issued, while publication was made in newspapeRs, The respective issues of newspapers are present on record. Despite effecting of service through publication, as the defendants/respondents Nos.2, 3 and appellant, failed to appear, thus proceeded against ex parte, while the suit was decreed in favour of the plaintiff/respondent No,1 by the trial court through judgment dated 12-4-2008. Whereafter, proceedings for execution of decree were initiated against the judgment debtors/respondents Nos.2, 3 and appellant. During the course several show-cause notices were issued, in the names of judgment debtors, including present appellant, but remained unserved. In the circumstances, the Banking Court issued warrants for arrest of judgment-debtors, while proceedings for auction of the attached property were also initiated, but till present the process of auction has not been finalized.
3. During course of execution proceedings, the appellant was got arrested on 24-7-2009, and committed to civil prison, as he refused to deposit the decretal amount.
4. ' Meanwhile, the appellant filed an application for setting aside of ex parte judgment on 24-8-2009.
5. This application was rejected by the Banking Court, through order dated 7-9-2009, which is challenged through this appeal, wherein it is main contention of the appellant that he has not been properly served, as such he had no knowledge about pendency of the suit, thus unable to approach the court in time. His second contention is that the decree has been obtained through fraud and misrepresentation by the Bank, he denied to sign any document in respect of the amount obtained by respondent No,2 Abdul Rehman, the principal debtor.
6. ' The appellant mainly contended that service was not properly effected on him, nor he was in knowledge of pendency of the suit, further, he never stood guarantor, nor obtained any loan from the Bank. Subsection (5) of section 9 of Financial Institutions (Recovery of Finances) Ordinance 2001, is relevant, as it describes the mode of issuance of notice and effecting of service to the defendant. Section 9 subsection (5) of Financial Institutions (Recovery of Finances) Ordinance 2001 states as under:-- "Section-9(5):---On a plaint being presented to the Banking Court, summons in Form No, 4 in Appendix 'B' to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other form as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process-server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspaper, and service duly effected in anyone of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. In the case of service of the summons through the bailiff or process-server, a copy of the plaint shall be attached therewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the office of the Banking Court without making a written application but against due acknowledgment. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits."
7. ' As per this provision, on institution of suit summon is required to be served on the defendant. The modes provided therein are through bailiff of the court, through registered post acknowledgement due, by courier, and by publication in one English language and one Urdu language daily newspaper. It is further provided therein, that service effected in anyone of the aforesaid modes, shall be deemed to be service, for the purpose of this Ordinance LI of 2001. In present case, as per order dated 14-2-2008, the summonses were ordered to be issued through registered post, and also through DPO Naseer Abad at Dera Murad Jamali, and also ordered to be issued through publication in two newspapeRs, Though no report in respect of summons issued through registered post, and DPO are present on record, but the publication was effected in Daily Ba-Khabar, Quetta, and Balochistan Times, Quetta, relevant issues of both the newspapers are present on record. Thus, keeping in view the provisions of section 9(5) of Financial Institutions (Recovery of Finances)
8. Ordinance 2001, the service was duly effected on the defendants/respondents Nos.2, 3 and appellant, no further notice was required in the circumstances. It is further to be A noted, that after passing of the decree, during course of execution proceedings, process was repeatedly issued for the judgment-debtors, including the appellant. Several show-cause notices were also issued, due to non-effecting of service, resultantly, warrants of arrest were issued in names of judgment- debtors, which also remained un-served. The reports of process serving agencies, present on notices and warrants, clearly reveals that the judgment-debtors including the appellant, were avoiding the service. As per record the appellant was got arrested on 24-7-2009, and committed to civil prison on his refusal to pay the decretal amount. As such the date of his arrest shall be deemed to be date of knowledge, and period of limitation has to be counted from the said date. As per record of the trial Court, the appellant though arrested on 24-7-2009, while gave power on the same date to his counsel, the power is present in the case file of the trial Court, despite the same, he filed application under section 12 of Financial Institutions (Recovery of Finances) Ordinance 2001, seeking setting aside of the decree, on 24-8-2009. The provided period, for filing such an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance 2001, is 21 days, from the date of decree. It is further provided therein, that where the summons was not duly served, when he got knowledge of the decree. In present case though service was duly effected through publication, but he failed to appear before the court at the relevant time. If reliance is made on contention raised by the appellant, that he had no knowledge about the publication, as newspapers have no circulation in the area, even then, he admittedly got knowledge about passing of the decree against him on 29-7-2009, the date he was arrested, but he filed application for setting aside of the decree on 24-8-2009, after the provided period of 21 days. No reason for such a delay is shown, nor explained by him.
9. ' Keeping in view the above mentioned facts, service was properly effected on the appellant as per relevant provision of law, but he failed to appear before the Banking Court, at the relevant time.
10. Further, process was repeated several times during pendency of suit, and also during course of execution, but the appellant despite being resident of the area, deliberately avoided the service. It is to be noted that in present appeal the appellant has mentioned his same address, which was mentioned in the plaint by the plaintiff/respondent No,
1. The defendants, including the appellant, avoided the process of the court, which shows mala fides on their part. Their non-appearance was deliberate. The appellant has further failed to place on record any material, from which it can be ascertained, that fraud has been committed by the Bank Authorities.
11. ' The appellant has failed to approach the trial Court within provided period, he further failed to establish that he was not properly served, thus deprived of his right. There is no merits in the appeal, which is hereby dismissed. However, in order to meet the ends of C justice the bail granted in favour of appellant Muhammad All through order dated 17-9-2009, by this Court, is ordered to be remain valid till 12-3-2011, enable him to approach the Banking Court for obtaining further orders in his favour.
12. ' No orders as to costs.