' SHAHNAWAZ TARIQ, J.---Through the captioned first civil appeal, appellant Dr. Jamil Masood Usmani has impugned judgment dated 30.5.2014, and decree dated 30.6.2014, passed by learned Banking Court-III, Karachi, in Suit No. 605 of 2009.
2. Relevant facts spelt out from the instant appeal are that respondent Messrs Askari Bank Limited is engaged in the business of banking and providing financial assistance/facility on credit to its customers through Credit Card to purchase items of their choice on credit basis and to repay the amount as per agreed schedule. Appellant approached the respondent bank for grant of Master Classic/Gold Card facility under credit card scheme and after routine proceedings and negotiations, appellant accepted its terms and conditions and agreed for the schedule of minimum monthly payments regularly along with service charges and respondent bank issued Askari Master Classic/Gold Card No.5140-9950-0318-6005 and 5140-1020-2163-1001. It is further averred that appellant availed the Classic Card facilities from the year 2002 but neglected and failed to pay the minimum amounts despite the repeated demands of respondent bank with the result that a sum of Rs.3,39,304.44 is still outstanding against him. Respondent bank also served a legal notice through its advocate for the subject payment but of no avail. Ultimately, respondent bank filed Suit No.1700 of 2009, against appellant before the Banking Court No.1, Karachi, for recovery of Rs.3,39,304.44 under section 9 of Financial Institutions (Recovery of Finances)
Ordinance, 2001, (hereinafter referred as "the Ordinance, 2001"), which was subsequently transferred to the Banking Court No.III, Karachi, and renumbered as Suit No.605 of 2009. After service of summons, appellant filed application for leave to defend the suit under section 10 of the F.I. Ordinance, 2001, which was dismissed for non-prosecution. It is further stated that previously on 24.12.2008, appellant had also preferred Insolvency Petition No. Nil of 2008, before the High Court of Sindh invoking the original jurisdiction of the Court, but same was dismissed vide order dated Amount availed by appellant Rs,4,56,096.77 Mark-up and other charges Rs .2,83,287.67 Amount paid by appellant Rs .4,00,080.00 Amount payable by appellant Rs,3,39,304.44.
3. Learned counsel for the appellant contended that appellant filed an application for leave to defend before Banking Court-III, Karachi, which was fixed on 09.10.2013, but on that date counsel for appellate was busy before the High Court of Sindh as such application for leave to defend was dismissed for non-prosecution. He further contended that impugned order was followed by judgment and decree which are also illegal and not sustainable under the F.I. Ordinance, 2001, as well as Article 10-A of the Constitution of Pakistan. He further submitted that the judgment and decree obtained on the basis of false statement of account are liable to be set-aside. Learned counsel for appellant relied on 1995 SCM R 1593, PLD 1987 SC 304 and 2007 CLD 997.
4. We have heard learned counsel for appellant at length and perused the material available on record thoroughly, which emanate that appellant approached respondent bank to avail the finance facility and respondent bank issued Askari Master Classic/Gold Card under written terms and conditions, and appellant agreed to pay minimum monthly payments regularly along with service charges, and in case of default in minimum monthly payment, penalty charges 10% (minimum charges Rs.600/-) of the minimum payment will also be charged along with defaulted amount in respect of the facility utilized and availed by him through the said card. Due to failure of appellant to clear the outstanding dues, respondent bank filed suit for recovery before the Banking Court and appellant filed application for leave to defend, but failed to file the statement of account with break up regarding the paid and unpaid amounts by him. It is significant to mention that section 10 of the F.I. Ordinance, 2001, provides the procedure and evolves the mechanism for preferring application for leave to defend. Subsection (3) of section 10 of the F.I. Ordinance, 2001, explicitly states that application for leave to defend shall be in the form of written statement, and shall contain a summary of the substantial questions of law as well as fact in respect of which, in the opinion of the defendant, evidence needs to be recorded; subsection (4) of section 10 also provides the requisite details which shall be incorporated in application for leave to defend.
5. At this juncture, we would like to discuss the case law cited by learned counsel for appellant. In case of Chairman Broadcasting Corporation v. Nasir Ahmed and others, (1995 SCM R 1593), and in case of Pakistan v. Public at large (PLD 1987 SC 304), the honorable Supreme Court has observed that no one should be condemned unheard and every Court has inherent powers to recall its own order to protect litigants from the abuse of Court. The cited case is distinguishable from the circumstances of the present case, as appellant was properly served with summons by the Banking Court and filed application for leave to defend but due to lack of persuasion by appellant and his counsel and despite the last chance, same was dismissed for non-prosecution. Learned counsel also relied on the case of Rafiq Ahmed Sanauri and 3 others v. United Bank Limited and 5 others (2007 CLD 997), wherein it was observed that defendant is required to file petition for leave to appeal in accordance with the conditions enumerated in section 10 of the F.I. Ordinance, 2001, and Banking Court is required to decide the leave application on merits, as the said ordinance does not visualize the dismissal of application for non-prosecution nor such powers have been conferred upon the Banking Court. While in present case, appellant had filed application for leave to defend 28.10.2009 without complying the requirements envisaged in section 10 of the F.I.
Ordinance, 2001, and thereafter avoided to proceed the same despite giving fast chance, which ultimately dismissed by the Banking Court on 09.05.2013, therefore, learned Banking Court was justified to dismiss leave to defend for non-prosecution, hence the above case is also quite distinguishable and not beneficial for appellant.
6. It is significant to mention that the F.I. Ordinance, 2001, is a special enactment and there is no specific provision provided in it which imposes any bar on the application of provisions of Civil Procedure Code, 1908, in the proceedings instituted under the Ordinance, 2001. It is well settled that Banking Courts adjudicate the financial us strictly in accordance with the Ordinance, 2001, however, when the procedure for any specific purpose is not provided in the Ordinance, the Banking Court is not only fully competent to exercise its jurisdiction under the provisions of Civil Procedure Code, 1908, but to meet the ends of justice, the Court will exercise the provisions of Code, as a civil Court.
In case of M/s Agrocare and 3 others (2011 CLD 990), it was observed that under section 7(2) of the Ordinance, 2001, the provisions of C.P.C. are applicable only where the Ordinance, 2001, is silent and no procedure has been laid down. In case of Nisar Ahmed Afzal V. Muslim Commercial Bank and 14 others (2014 CLD 390), it was observed that Banking Court has all powers vested in civil Court under Civil Procedure Code, 1908 in exercise of civil jurisdiction. It is well settled that each and every case shall be decided in view of its peculiar facts and circumstances to ensure the dispensation of justice. Consequently, considering the above scenario, we are of the opinion that the Banking Court is fully competent and empowered to dismiss application for leave to defend for min-prosecution if defendant deliberately fails to appear and comply with the directions of the Banking Court.
7. While adverting to the legal aspect of the appeal, it is well settled that if defendant has failed to file application for leave to defend strictly in letter and spirit of section 10(3), (4) and (5) of the F.I.
Ordinance, 2001, and could not show any sufficient cause for non-compliance of the above mandatory requirements, such incompetent application shall be hit by the penal clause (6) of section 10 of the F.I. Ordinance, 2001, presuming that no application for leave to defend has been preferred and same shall be dismissed. Indeed, in present appeal, application for leave to defend filed by appellant is neither within the scheme of section 10 of the F.I. Ordinance, 2001, nor containing the essential summary of statement of account to demonstrate the details of amounts paid as well as outstanding against him, as such application filed by appellant being incompetent is not maintainable under the law.
8. It would be advantageous to have a glance on the proceedings of the subject suit. The appellant filed application for leave to defend on 28.10.2009, but no statement containing break-up of accounts showing paid and unpaid amounts was filed along with leave application. Perusal of impugned order dated 09.10.2013, reflects that on said date appellant and his counsel remained absent since morning till 1.00 p.m., while suit was fixed for hearing of application leave .to defend as last chance. Resultantly, application for leave to defend was dismissed for non-prosecution.
Thereafter the learned Banking Court on the basis of material submitted by respondent bank, after calculation of the amounts paid and unpaid, decreed the suit vide judgment dated 30.05.2014. In case of Bank of Punjab v. Genertech Pakistan Ltd. and 2 others (2008 CLD 765), it was observed that non-compliance with mandatory provision of section 10(3)(4)(5) of the F.I. Ordinance, 2001, would provide for penalty and leave application would be rejected on merit. In case of United Bank Ltd v.
Progas Pakistan Ltd. (2010 CLD 828), it was observed that if application for leave to defend the suit did not comply with the requirements of section 10(3)(4)(5) of the F.I. Ordinance, 2001, such application was liable to be dismissed. More so, appellant had not denied execution of documents in respect of issuance of Askari Classic/Gold Card nor agitated the agreed terms and conditions which has furnished the basis of suit instituted by respondent bank. It is also well settled that Banking Court would be right in its conclusion that defendant has failed to make any plausible case for leave to defend the suit when defendants did not deny execution of documents which provided basis to institute suit by the bank.
9. Considering the facts, circumstances and identical case law referred supra, we are clear in our mind that neither appellant has filed leave application as required by the FA. Ordinance, 2001, nor showed any sufficient cause regarding his absence as well as nonappearance of B his counsel on 09.10.2013, when subject suit was fixed before the Banking Court as last chance to proceed the leave application. Consequently, we did not observe any illegality or material irregularity in impugned verdict of the learned Banking Court, which does not call for any interference, hence maintained. Resultantly, the instant first appeal stands dismissed.