' SALMAN HAMID, J.---Civil Miscellaneous Application No,13145 of 2010: This is an application under section 5 of the Limitation Act, 1908 (the Application) to condone the delay in filing leave to defend application in the present its in time prescribed for under the relevant Law, i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001, (the Ordinance 2001).
2. Foundation to disregard the impediment in filing leave to defend application in time, inter alia, were exposed to be that the defendants on 1-11-2010 at their factory were informed by their guard that bailiff of the High Court of Sindh, Karachi came with the summonses of the suit for defendants.
Since the defendants were not present, the guard refused to collect such summons. Upon acquiring such awareness the defendants instantaneously on the same day (1-11-2010) "rushed" to the High Court; obtained copies of the pleadings of the suit and next filed leave to defend application on 29-11-2010. It was mentioned in the sustaining affidavits of the Application that for the initial instant the defendants came to recognize through their counsel on 30-11-2010 that the leave to defend application was filed short of seven days of limitation period, prescribed for under the Ordinance 2001 inasmuch as that the defendants had been served on 23-10-2010 through publications of daily Dawn and Jang. It was also contended that if the period of limitation is measured in preferring the leave to defend application from the date of bailiffs visit at the factory, it (leave to defend application) was within the time allowed by the Ordinance of 2001. At the time of urging of the Application, learned counsel for defendants attempted to make out a case in condoning the delay and argued that if the case of the defendants was good on merits then this court is empowered to condone the delay in filing leave to defend application beyond the ordained time.
3. Arguing in such a direction, firstly it was mentioned that this court has no jurisdiction to entertain the present suit as the Agreement for 'Financing on markup basis dated 20-9-2008 depicts an amount far less than Rs,50 million, the threshold to bring a banking suit to this court. It was then argued that statement of accounts lacks the requirements of the Bankers' Book Evidence Act.
Authorization of the plaintiffs officer to present the banking suit was also attacked. In support of his contentions, erudite counsel for the defendants relied upon the case of Sitara Rice Trading and another v. UBL and another (2011 CLD 254 Lahore), Axle Products Limited v. ABL (2009 CLD 836 SC), Haji Muhammad Yaqoob Akhtar v. HBL and others (2009 CLD 1699 Karachi), Nazir Hussain and another v. Bank of Punjab through Manager (2007 CLD 687 Lahore), Hussan Ara and 8 others v.
Bank of Punjab through Manager (2006 CLD 1502 Lahore) and Monazam Bibi and 2 others v. Zarai Taraqiati Bank Ltd. Through Branch Manager (2006 CLD 836 Lahore).
4. Learned counsel for the plaintiff strenuously resisted the Application. Prayer for its (the Application) dismissal was made. It was argued that the requirements of section 9(5) of the Ordinance 2001 since complied with in letter and spirit by effecting service on the defendants through the bailiff/process server; by registered post acknowledgement due; by courier and by publications, one in English language and one in Urdu language there was no occasion for condoning the delay and that too when the law (Ordinance 2001) under the facts and circumstance of the case does not favour the defendants. It was pointed out that from defendants' own showings the requirement of section 9(5) of the Ordinance 2001 had been strictly adhered to.
It was also mentioned that undisputedly the defendants were duly served through publication of daily Dawn and Jang of 23-10-2010. It was further argued by the learned counsel for the plaintiff that provision of Ordinance 2001 i.e. Section 9(5) clearly stipulates that service duly effected in any one of the modes prescribed for it shall be deemed to be valid service. The defendants were indeed served first by one of the modes, viz. Publication.
5. By way of an auxiliary argument it was emphasized by learned counsel for the plaintiff that according to the defendants' own admission they acquired knowledge of the present suit at least on 1-11-2010. Despite such knowledge, when still sufficient time was available with them, they preferred the Application just on the last date of expiration of limitation on 29-11-2010, (if calculated from the date of service, effected through bailiff) and did not take care to enquire from the office of the concerned branch if service was also made through publication, which is one of the modes of service under the Ordinance 2001. Prevention is better than cure was perhaps not known to the defendants. Excuse from ignorance of law was not a ground the defendants could hinge on. Under the circumstances defendants "rushing" to the High Court did not bear fruits. It was mentioned that the defendants are seasoned businessmen and are quite aware of the procedure as to how the banking cases are dealt with under the Ordinance 2001. It was argued that when the defendants had rushed to the court on 1-11-2010 they must have also noticed the newspaper in the file and/or when they contacted their counsel presumably immediately after 1-11-2010 they came to know of the fact that publications had also been made. Still nothing in such regard was done. Such line of argument was adopted by learned counsel for the plaintiff on the premise of a recovery suit filed by Allied Bank of Pakistan Ltd. Against the same defendants i.e. Muslim Cotton Mills (Pvt.) Ltd. And 3 others (2011 CLD 393 Karachi) that was decided by this court against the defendants. Learned counsel in order to supplement his arguments that the application under the facts and circumstances of the case is liable to be dismissed relied upon the cases of Simwa Polypropylene (Pvt.) Ltd. And others v. NBP (2002 SCM R 476), Arshad Ahmed and 2 others v. Trust Commercial Bank Ltd. Through Manager (2005 CLD 1705 Lahore) and Khawaja Muhammad Bilal v. Union Bank Ltd. Through Branch Manager (2004 CLD 1555 Lahore).
6. I have heard arguments of both the learned counsel and perused the record of the case and also the precedents cited.
7. Provision of subsection (5) of section 9 of the Ordinance 2001 clearly stipulates that service would be held good on the defendant(s), if duly effected by any one of the modes and that it shall be deemed to be valid service. It is nobody's case that the defendants were not served through publications of 23-10-2010 and/or such were not valid service. According to defendants' own showings, service on them through publications was not denied or disputed or it was not alleged that such was not in accordance to the law (the Ordinance 2001). Nonetheless, it was mentioned that since they were not sentient of such publications and that they were also served through other mode i.e. By bailiff, service on them through publications may be ignored and/or discarded and the service made through bailiff be taken to be valid service and the limitation for filing the leave to defend application be reckoned there-from. Under the scheme of law, it is not the choice of the defendant which prevails and he is not allowed to decide as to which mode of service be held to be good out of the four modes.
8. In fact the relevant provision clearly stipulates, as already mentioned above, that service would be held good on defendant(s) by any of the modes, mentioned in subsection (5) of section 9 of the Ordinance 2001. Therefore, I hold that the defendants were duly served on 23-10-2010 through publications of daily Dawn English and daily Jang Urdu. Despite such service, leave to defend application was filed beyond the period of limitation stipulated under the Ordinance 2001 which, as a result, was barred. The defendants cannot, because of mischief of subsection (5) of section 9 of the Ordinance 2001 seek to avail the benefit of arguing leave to defend application past the constraint period.
9. Approaching the argument of the defendants that they have a fine case on merits and therefore, tomfoolery of limitation should not hinder their right of agitating leave to defend was without any force when compared to such alleged merits. It was canvassed that this court did not have the jurisdiction to entertain the present suit. The reason shown, was that, that the agreement which was relied upon was far less than the value of fifty million, the preparatory pecuniary limit under the Ordinance 2001 to bring a suit before this court by the creditor against its defaulter borrower.
Examination of sanction letter, annexed to the plaint would depict that the Facility limited was to the extent of Rs,60 million and renewal in respect thereof was made in defendants' favour from time to time, still defaults were committed by the defendants which sore up to Rs,102,485,553.89 in September 2010 on the date of filing of this suit. It is thus manifest that the recovery suit was not cramped and dependent on the Agreement dated 20-9-2008. Moreover, record of the file would show that upon default by defendants of the Finance, sanctioned and disbursed, the plaintiff, in the first instance, resorted to the provision of section 15 of the Ordinance 2001 for recuperation of their stuck up dues. As a result, stipulated three notices had been caused by the plaintiff on the defendants, all of which were responded to by them (defendants). In none of the responses, liability of the defendants, as mentioned therein which at all times was beyond and over and above fifty million was disputed or denied. To the contrary it was assured that since the payment of liability is under negotiation and also a request for rescheduling is made, the outstanding liability would be cleared for which time was sought. In this view of the matter there remains hardly a room to appreciate the argument of the defendant that this court did not have the jurisdiction to entertain the suit, being less than rupees fifty million seeing alone from the Agreement dated September 2008.
10.
10. The other argument of the learned counsel for the defendants that the statement of accounts had not been duly certified in terms of provisions of Bankers' Book Evidence Act 1891, therefore such cannot be relied upon can easily be repelled by merely observing that each page of the statement of accounts was certified by the authorized officer of the plaintiff and prima facie fulfills the condition of law. Last argument that the plaintiffs officers who presented/filed the suit did not have the authority in respect thereof is frivolous, The Power of Attorney is available on the record of the file. It meets the criteria set forth under section 9(1) of the Ordinance 2001 i.e. by presenting a plaint in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise.
11. Gauging the various precedents cited by learned counsel for the defendants in the light of the above, it may be observed that in the case of Sitara Rice Trading and another v. UBL and another (2011 CLD 254 Lahore), the Division Bench of the Lahore High Court allowed the appeal when it was noticed by it that there were material discrepancies in the various dates of service and it was not clear as to from which date the appellant was required to file leave to defend application, the appeal was allowed. However, in the case in hand there is no such incongruity. Therefore, under the facts and circumstances of the case at hand this standard is not of any assistance to the defendants. Similarly in the case of Axle Products Limited v. ABL (2009 CLD 836 SC), only leave was granted by the Hon'ble Supreme Court of Pakistan when it noted as to whether substituted service would be valid "without resort to other modes", inasmuch as that in that case it was pleaded by the petitioner that no personal service had been effected upon him either through bailiff or through registered post A/D or courier and that summons had been posted at the address where defendants had ceased to exist. Not a hint of the scenario as depicted in the case in hand are available to the defendants herein. On the contrary the defendants have admitted that they came to know about proceedings on 1-11-2010 and thereafter on 30-11-2010 i.e. a day after the filing of leave to defend application on 29-11-2001 they became aware of the publications through their counsel that service was also effected on them through daily Jang and Dawn besides effecting service through other modes as stipulated in subsection (5) of section 9 of the Ordinance 2001. In the case of Haji Muhammad Yaqoob Akhtar v. HBL and others (2009 CLD 1699 Karachi) again service was not effected on the appellant simultaneously and therefore, the appellate court came to the conclusion that when all the three modes had not been adopted simultaneously and service had not been effected, service through publication was not to be ordered mechanically without adverting to the report. Again it is not the case of the defendants that they were served only by one mode and that the provision of subsection (5) of section 9 of the Ordinance 2001 had been violated. Therefore, this case is also of no assistance to the defendants. Coming to the case of Nazir Hussain and another v. Bank of Punjab through Manager (2007 CLD 687 Lahore), it was held therein that since the banking court issued summons to the defendants only through registered envelop and by proclamation by two newspapers thereby dictate of section 9(5) of the Ordinance 2001 had been violated. Therefore, such mode of service by banking court was deprecated. Such is not the scenario here. In the case of Hussan Ara and 8 others v. Bank of Punjab through Manager (2006 CLD 1502 Lahore), the provision of section 9(5) of the Ordinance 2001 had not been complied with in letter and spirit. Therefore it was contended by the appellant that ex parte decree that was passed had been made without resorting to the requirement of section 9(5) of the Ordinance 2001 i.e. All modes of service were not adopted. The ex parte decree, was therefore, set aside. Such is not the case here. In the last case of Monazam Bibi and 2 others v. Zarai Taraqiati Bank Ltd. Through Branch Manager (2006 CLD 836 Lahore) it was held that since the newspapers in which the publications were made were not in circulation in the area where the defendants had been residing and that they were illiterate persons and were not aware of English language and also unable even to read Urdu language and it came on record that the publications were not dispatched on their address, ex parte decree was set aside. In the present case it was not the case of the defendants that they are illiterate persons or that the publications in which court hotices were published had no circulation where they (defendants) are residing, This precedent, is therefore of no assistance to the defendants.
12. The case of Simnwa Pblypropylene (Pvt.) Ltd. And others v. NBP (2002 SCM R 476) relied upon by the plaintiff stipulated that since the service on defendants was made through all three modes i.e. Through publication in newspapers, through registered post A/D and through bailiff of the court and that the banking court thereafter, dismissed leave to defend application, appreciating that it was beyond the period of limitation, the order passed by two courts below in such regard had been upheld by holding that the service by any of the modes prescribed in section 9(3) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 was deemed to be valid for such purpose. The contention of the defendants that latest mode should be taken into consideration for computing period of limitation and not other was found to be of no force. In the case in hand as well the defendants claimed that the service on them through publications dated 23-10-2010 be not taken as the C date for computation of limitation and the date of bailiff report be taken for the purpose of computation thereof. In the beam of above judgment of the Hon'ble Supreme Court of Pakistan and also in view of the provision of section 9(5) of the Ordinance 2001 the contention of the defendants has no force. Similarly in the case of Arshad Ahmed and 2 others v. Trust Commercial Bank Ltd. Through Manager (2005 CLD 1705 Lahore), relied upon by the learned counsel for the plaintiffs, the Division Bench of the Lahore High Court came to the conclusion that the plea of appellant that computation of limitation for the purpose of service be effected through publication should not be taken in to consideration as it would be against section 9(5) of the Ordinance 2001. Argument of the appellant was therefore repelled and it was held by the Division Bench of the Lahore High Court that the service would be deemed to be valid and it could neither be urged nor held that leave application filed by borrower was out of time, if calculated from date of publication. The last case which was cited by the learned counsel for 'the plaintiff was that of Khawaja Muhammad Bilal v. Union Bank Ltd. Through Branch Manager (2004 CLD 1555 Lahore) wherein the Division Bench of the Lahore High Court comprised of Mr. Justice Mian Saqib Nisar and Mr. Justice Jawwad S. Khawaja, now elevated as the Hon'ble Judges of the apex Court of Pakistan held that service by any of the modes, provided effected under the law, is sufficient service. In the case in hand the defendants having been served through publication would be deemed to be proper service and if period of limitation computed from such date i.e. 23-10-2010, the application for leave to defend filed on 29-11-2010, according to defendants' own showing was D beyond the period of limitation as provided under the Ordinance of 2001. Therefore there cannot be any exception to the settled law. For these reasons the Application is dismissed, however with no order as to costs.
13. Consequently leave to defend application (C.M.A. No,13146 of 2010 listed at serial number 2) filed by the defendants being time barred is also dismissed. However, the parties to the suit are still required to file break-up of accounts, showing inter alia therein the total amount availed/disbursed against various Finances, repayments there-against and the amount due and payable along with agreed mark-up, separating the same from accrued markup. Such exercise be conducted and finished within a period of seven days from the date of announcement of this order. Adjourned to 10-5-2011.
3)(sic.). The case for final disposal has been wrongly fixed. No order is required. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.