1. ' In the present R.F.A., the order of learned Judge Banking Court-II, Gujranwala, dated 8-6-2005 has been assailed, wherein the application for leave to defend the suit of respondent/appellant was dismissed, observing that the postal envelope, the courier service and the proclamation in the newspaper were issued and since the proclamation was made into newspaper on 13-9-2004, whereas the notice through courier service and postal envelope were issued on 21-9-2004, while the application for leave to defend the suit was filed on 26-10-2004, therefore, being beyond 30 days, the prescribed limitation period under section 10(2) of F.I.O., 2001 was barred by limitation.
2. ' Apart from question of set of claim in the same application, it was also observed by the learned trial Court that out of 2.5 million, Rs,21,77,000 were returned to the Bank and a meager amount of Rs,4,85381 was outstanding pertaining to which the decree was passed.
3. ' It is a matter of record that first, in the proclamation issued on 13-9-2004, the date of appearance before the court was mentioned as 7-10-2004, whereas the postal receipt, returned to the court depicts that the registered postal envelope was received by the respondent on 27-9-2004, whereas the receipt of the courier service shows that the same was delivered to the respondent on 28-9-2004. The date of knowledge is naturally to start from the delivery of notice which is patently either by receipt of postal envelope or the receipt of envelope sent through courier service i.e. 27- 9-2004 or 28-9-2004 respectively. Commuting the date from those, the application of the present appellant seems within 30 days as having been moved on 26-10-2004. Further with regard to proclamation made in the newspaper, we are to observe that date of publication for the purposes of limitation period is completely irrelevant when a specific date to appear before the court, in the present case i.e.. 7-10-2004, is notified and in absence of other material, that would be the point for commencement of limitation period as there could be no cogent evidence that the intended person or the respondent/defendant has read the citation earlier than the date of appearing before the court. Because it is also within the exclusive knowledge of him that when he comes to know about the publication unless otherwise proved by the other party by very strong evidence for disproving the presumption.
4. Apart from it, it is observed that the court should not take harsh step when admittedly the substantial amount had been paid towards the liability by the appellant, who seeks leave to defend the suit and further where the set off also claimed as the decision just by knocking out one on technicality is not appreciated anymore. The order, dated 8-6-2005 of the learned Judge Banking Court-II is set aside while accepting the appeal. The same is remanded with the observation that the leave to defend the suit be considered as admitted.