JUDGMENT AMIN-UD-DIN KHAN, J. - Through this single judgment we intend to decide the above- captioned two appeals, as common question of law and Met has been agitated therein, which are directed against the same judgment and decree dated 22.08.2006 passed by the learned Judge Banking Court, Bahawalpur.
2. Briefly, the facts are that on J04.01.2006 plaintiff (PICIC Commercial Bank Limited) filed a suit for recovery of amount alongwith mark-up and cost of funds under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against M/s. PASBAN AGRO CHEMICALS COMPANY & others, wherein the appellants of both the appeals have been arrayed as defendants being mortgagor as well as guarantor for repayment of impugned finance facility for defendant No. 1. The . Application for leave to defend was filed by the appellants, which was dismissed by the learned Judge Banking Court and the suit was decreed.
3. Learned counsel for respondent No. 1 (plaintiff) raised the preliminary objection that these appeals are not competent on the basis of bar contained under Section 22(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as U/O XLIII, Rule 3 of the C.P.C. As the requisite notice has not been issued before filing of the appeals. Reliance has been placed upon "2008 CLD 449 (Messrs Ashraf Agro and others v. H.B.L.)".
4. On the other hand, learned counsel for the appellants have relied upon "2004 CLD 1609 (United Bank Limited v. Messrs Khawaja Radio House through Proprietor and 2 others) 1991 CLC 1263 (C/i.
Bashir Ahmed and others v. Province of Punjab and others) 2008 CLD 326 (Sikander Trading Company Private Limited and 6 others v. Habib Bank Limited and 1990 M LD 986 (Ch. Bashir Ahmad and 4 others v. Province of Punjab through Collector, Sargodha and 4 others)".
5. We have heard the arguments of learned counsel for the parties on the preliminary objection as.
Well as on main appeals, at full length and also gone through the record minutely.
6. We have noticed that the Judgments referred to - by learned counsel for the appellants are In support of their contentions. The judgment reported as "2004 CLD 1609" and also the judgment relied by learned counsel for respondent No. 1 is of the Hon'ble Division Bench of this Court. We have noticed that the judgment relied by the appellants was delivered on 21st October, 2003, whereas the judgment relied by respondent No. 1 (plaintiff) was delivered on 4th February, 2008. In the earlier judgment i.e. "2004 CLD 1609" the Hon'ble Division Bench of this Court has opined that as there is no provision of penalty available for non-issuance of notice under Section 22(2) of the financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, this provision is directory in nature. Whereas in "2008 CLD 449" it has been held that it is mandatory provision of law, we have noticed that the Hon'ble Division Bench has neither discussed nor referred the law declared by the earlier Hon'ble Division Bench of this Court reported as "2004 CLD 1609".
7. Furthermore, we agree with the contention of learned counsel for the appellants that even the office of this Court has not raised any-objection at the time of filing of appeals, which were admitted to regular hearing in the year 2006 and after a period of six years, the objection of learned counsel for respondent No. 1 with regard to non- maintainability of appeals is without any justification. The case-law relied by the appellants is having a binding effect, till the time this view is changed by the larger Bench of this Court or the august Supreme Court of Pakistan and contentions raised by them are reasonable. We also agree with the view taken by the Hon'ble Division Bench of this Court in "2004 CLD 1609". ' ,
8. So far as, the facts of case are concerned. The contention of learned counsel for the appellants that they have not mortgaged the property for impugned finance facility and it was with regard to the previous finance advance to defendant No. 1 and that too, to the extent of Rs. 50000/- only, therefore, liability of the appellants by no means could extend beyond that amount. The property was mortgaged for finance availed by respondents Nos. 2 and 3 in the year 2003, which was later on cleared and in this regard a clearance certificate dated 06.04.2004 was also issued by respondent No. 1 (plaintiff). Further, without appellants' consent the document of mortgage was re- used by the plaintiff ^'collaboration with respondents Nos. 2 and 3 for sanctioning of second loan for which the appellants never consented. Learned counsel has referred the document showing that even the date of guarantee is 29.07.2003, wherein the agreement dated 13.08.2003 has been mentioned. Learned counsel states that it is sufficient to declare this document as fictitious one. He has even further referred to the document produced by the Bank (plaintiff) in shape of agreement for finance, copy of memorandum of deposit of title deeds, bearing No. 548, dated 05.09.2002: Learned counsel for respondent No. 1 (plaintiff) could not rebut the arguments advanced with regard to the documents but only stated that it is common practice in the Bank loan cases, as people deposit their documents even prior to the making of application for grant of loan. When confronted to the learned counsel that what is the date of application for grant of finance facility in this case. Learned counsel replied that it is not available on the record.
9. In this view of the matter, we do not want to comment upon the arguments advanced by learned counsel for the appellants on merits of the case, so that it may not prejudice the case of any of the parties. The record available on the file is sufficient to say that the appellants raised serious question with regard to the disputes warranting the trial of case was made out and the application for leave to defend moved by the appellants was wrong dismissed.
10. In the light of what has been discussed above, we allow both the appeals and set aside the judgment and decree dated 22.08.2006 passed by the learned Judge Banking Court, to the extent of appellants only. The case is remanded back to the Trial Court with a direction to decide the application for leave to defend the suit afresh after taking into consideration all the material available.