' The appellants, through this appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 have called in question the order dated 4-12-2010 passed by the learned Banking Court-I, Multan whereby appellants' application under section 12 of the above said Ordinance was dismissed.
2. Briefly the facts of the case are that the respondents filed a suit for recovery of Rs, 12,663,877.40 against the appellants which was decreed by the learned Judge Banking Court-1, Multan vide ex parte judgment and decree dated 9-12-2009. The appellants being aggrieved, on 18-3-2010 filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for recalling of ex parte judgment and decree dated 9-12-2009. The respondents controverted the averments made in the application by means of reply dated 17-4-2010. The learned Judge Banking Court after granting opportunity of hearing to the parties dismissed the application vide order dated 4-12-2010. Hence, this appeal.
3. Learned counsel for the appellant submits that the appellants were never served properly in terms of section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001; that no notice through registered post acknowledgment due was sent to the appellants and this fact finds support from the record which does not contain the acknowledgment card; that the service effected through the bailiff is sham; and, that application filed by the appellants under section 12 of the above said Ordinance was within the stipulated time but the learned trial Court misconstrued the facts and also misapplied the provisions of law while dismissing the application vide impugned order dated 4-12-2010.
4. Conversely, the learned counsel for the respondents has opposed this petition and contends that no cogent reason was given by the appellants in their application filed under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside the ex parte judgment and decree. He further contends that service was effected on the appellants in accordance with the modes prescribed in section 9 of the above said Ordinance and, therefore, learned Judge Banking Court rightly dismissed the application through the impugned order.
5.We have heard the learned counsel for the parties and perused the record.
6. As per para 2 of the application filed by the appellants under section 12 of the Financial institutions (Recovery of Finances) Ordinance, 2001 the appellants on 6-3-2010 got knowledge of the ex parte judgment and decree dated 9-12-2009. After getting knowledge, the appellants filed the above said application on 18-3-2010. They were required to explain the delay of each and every day in filing application under section 12 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001. The perusal of the application shows that the appellants have not explained the delay of each day. This defect is fatal for maintaining the application under section 12 of the above said Ordinance for recalling of ex parte judgment and decree and in this regard reference may be made to the judgment rendered in the case of ABDUL RAHIM PATEL v. HABIB BANK LIMITED through Branch Manaqer and another (2008 CLD 701) and M. AFZAL v. ALLIED BANK OF PAKISTAN LTD. And another (2003 CLD 765).
7.Besides above, section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 prescribes that service can be effected on the defendants through any one of the given mode and one of them is substituted service to be effected by publication of summons in one Urdu language and one English language daily newspaper. The perusal of record reveals that this service was duly effected upon the respondents. In this scenario, the appellants had failed to disclose any sufficient cause for recalling of ex parte judgment and decree passed by the learned Trial Court and, therefore, order impugned in this appeal does not warrant any interference.
8. In view of above, this appeal being without any merit stands dismissed.