' KHADIM HUSSAIN M. SHAIKH, J.-Through the captioned 1st appeal filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, XLVI of 2001, the appellant-bank has called in question the judgment and decree dated 17.10.2011, passed by the learned Banking Court-II, Hyderabad in Suit No,01/2009 re-Muhammad Zia Ali Qureshi v. The President NIB Bank Limited and others, partly decreeing the suit against the defendants to the extent of payment of Rs,2,77,040/- to the plaintiff and partly dismissing the suit with no order as to costs.
2. Briefly the facts of the case are that on 05.01.2009 respondent Muhammad Zia Ali Qureshi filed Suit No,01 of 2009 against the President NIB Bank Limited and 4 others for declaration, permanent injunction and damages. The case of the plaintiff is that the defendants sanctioned. Loan for car financing for RIRAL 00035213, SUZUKI CULTUS 2007, Vehicle Registration No,APT-025; he paid 15% of the price of the car along with first installment and insurance, depositing a total amount of Rs,144,000/-; on 22.12.2008 the bank officials snatched the aforementioned vehicle bearing No,APT- 025 from the plaintiff illegally, extending him threats too. The repeated approaches of the plaintiff to the defendants yielded no fruit, hence he filed the above suit. The defendants in response to the summons appeared in the learned Banking Court-II, Hyderabad and filed application under section 10 of Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), which hereinafter will be referred to as the Ordinance for the sake of brevity, seeking leave to defend the suit, which was allowed by consent of the parties on raising no objection by the learned counsel for the plaintiff.
3. On the divergent pleadings of the parties, the learned Banking Court framed the following issues:-
1. Whether the defendant has not got some blank papers/document signed by the plaintiff?
2. Whether the defendant has not violated the State Bank of Pakistan Circular No,13 of 2008 for fair debt collection guidelines?
3. Whether the defendant has not auctioned the. Vehicle after the filing this suit of the plaintiff without giving notice to the plaintiff?
4. Whether the defendant and its management/Recovery Officer are taking Law in their hands and abstain/reflain from causing recurring Financial Losses and mental torture of the plaintiff?
5. Whether the defendants have sent legal notice of fourteen days to the plaintiff as per the judgment passed by the Honourable High Court of Sindh if the customer/borrower default in payments?
6. Whether the defendants haven't committed the contempt of court as they have full knowledge of the grant of stay order.
7. Whether the contemnors/defendants are not liable for strict legal action?
8. Whether the defendant has not snatched the car and taking law in their hand?
9. Whether due to harass attitude of the defendant, plaintiff not suffer loss?
10. What should the decree be?
4. To prove his case, plaintiff Muhammad Zia Ali Qureshi filed his affidavit-in-evidence as Ex.P/1, he produced the Registration Book as Ex.P/2, Inventory of Vehicle as Ex.P/3, Payment receipt as Ex.P/4, and letter along with payment schedule as Ex. P15, while the defendants failed to adduce evidence despite several opportunities given to them and even they did not bother to move any application for adjournment, or send intimation, therefore, the defendants' side was closed, as is evident from the impugned judgment.
5. The learned Banking Court-II, Hyderabad, .After hearing the parties counsel passed the impugned judgment dated 17.10.2011 and the decree drawn in pursuance thereof on the same date, whereby the suit of the plaintiff was partly decreed to the extent of payment of Rs,2,77,040/- to the plaintiff by the defendants and partly dismissed the suit with no order as to costs.
6. Having felt aggrieved, the appellant-bank filed the instant appeal on 03.12.2011 i.e, after 46 days of the impugned judgment and decree dated 17.10.2011. Along with the appeal the appellant also filed an application under section 5 of Limitation Act, 1908, which hereinafter will be referred to as the Act for the sake of brevity, seeking condonation of delay in filing the appeal.
7. The remedy of appeal against the judgment and decree, passed by the Banking Court, in a suit is provided under section 22 of the Ordinance, which for the sake of convenience is reproduced here:- "22. Appeal. (I) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIH, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of . The decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant. "
8. In order to appreciate, if, the provisions of section 5 of the Act, is applicable to this case, it would be advantageous to reproduce section 29 of the Act, which is the relevant provision of law regarding applicability or otherwise of provisions of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal or application:- "29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law........................
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply. "
9. A plain reading of the above provisions of law, reveals that for the purpose of determining period of Limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; section 29(2)(b), provides that the remaining provisions of the Act, shall not apply. Thus in our humble view the provisions of section 5 of the Act, are not applicable to the appeals filed under section 22 of the Ordinance as the Ordinance, which needless to say is a special law, itself specifically provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order, passed by the Banking Court. Reference can be made to case of Messrs S. Malik Traders and another v. Saudi Pak Leasing Company Ltd. (2009 CLD 171), wherein the Hon'ble Division Bench of this Court dismissed the appeal under section 22 of the Ordinance with the following observations:- "2. Today, we have heard the learned counsel for the appellant and with his assistance gone through the certified copy of the judgment and decree placed on record by the appellant. It shows that if the period of limitation is computed from the date of signing of decree and the period consumed in obtaining certified true copy of the judgment and the decree i.e, two days is also excluded still the appeal is time-barred by one day. This being the position and considering the fact that section 5 of the Limitation Act is also not applicable to this appeal, having been preferred under a special statute, it is dismissed being time-barred. "
' In case of Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286), the Hon'ble Supreme Court has held that:- ' where the law under which proceedings have been launched prescribes itself a period of limitation then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, .............................................................
' In case of Messrs Khan Tractors, Alipur Road, Khan Garh District Muzaffargarh through Proprietor and 2 others v. Habib Bank Limited, Railway Road Branch, Muzaffargarh through Manager (2013 CLD 177), the Hon'ble Division Bench of Lahore High Court, dismissed the application under section 5 of the Act, being not maintainable and the appeal as barred by time with the following observations:-
7. Learned Division Bench of the Karachi High Court dealing with the same proposition in "Messrs S. MALIK TRADERS and another v. SAUDI PAK LEASING COMPANY LTD." (2009 CLD 171) also held that provisions of section 5 of the Limitation Act, 1908, cannot be made applicable in an appeal, having been preferred under a special Statute i.e, the Financial Institutions (Recovery of Finances)
Ordinance, 2001.
8. Pursuant to above discussion and in view of settled proposition of law, provisions of section 5 of the Limitation Act are not attracted to the appeal preferred under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001) and as such the application being not maintainable is dismissed. "
10. The fact of appeal being time barred has not been disputed by the appellant as an application bearing C.M.A. No,1448 of 2011 under Section 5 of the Act, praying that the delay in filing the appeal may be condoned, was filed on behalf of the appellant along with the appeal and in the wake of inapplicability of the provisions of section 5 of the Act, to the appeals filed under the Ordinance, the learned counsel for the appellant was asked to satisfy the Court about the maintainability of the application under section 5 of the Act.
11. Learned counsel for the appellant has reiterated his sole assertion made in the application in hand that he was in his village to attend funeral prayer (JANAZAH NAMAZ) of his deceased uncle and due to this reason he could not file the instant appeal in time. He, therefore, prays that the delay in filing appeal May be condoned.
12. Apart from the above no other argument was advanced by the learned counsel for the appellant, nor did he address our query regarding maintainability of the application under section 5 of the Act.
13. For the purpose of deciding the question of limitation involved in this case, the relevant provision is subsection (1) of section 22 of the Ordinance, which provides period of thirty days for filing the appeal by any person aggrieved by any judgment, decree, sentence, or final order, passed by a Banking Court, to the High Court.
14. From a perusal of the certified copies of the impugned judgment and decree annexed with the appeal, it would be seen that the impugned judgment and decree were passed on 17.10.2011 and copies thereof were applied for by the appellant on 26.10.2011 i.e, after eight days of passing the impugned judgment and decree and whereas the copies were delivered to the appellant on 28.10.2011, but the appeal was filed on 03.12.2011; excluding the period of two days spent in obtaining the certified copies of impugned judgment and decree, the instant appeal is barred by fourteen days. Moreover the appellant had still more than 20 days in filing the appeal even after receiving the certified copies of the impugned judgment and decree as the appeal was required to be filed on or before 18.11.2011, but it was filed on 03.12.2011 i.e, after 35 days of receiving the copies of the impugned judgment and decree; even otherwise the ground advanced by the learned counsel for the appellant that he had gone to his village to attend funeral prayer (JANAZAH NAMAZ) of his deceased uncle patently would be an irrelevant and a misconceived stance, which could hardly be a ground for the appellant to seek condonation of delay of fourteen days in filing appeal even in a case attracting provisions of section 5 of the Act as the delay of each and every day with justification was to be explained in such a case in view of well settled law, what to say about the case one in hand in which the provisions of section 5 of the Act, are inapplicable as discussed by us in paragraph 9 supra.
15. In view of what has been stated above, we are of the considered view that the instant application bearing C.M.A. No, 1448/2011 under section 5 of the Act, being not maintainable is liable to be dismissed and resultantly the instant appeal also deserves to be dismissed.
16. Foregoing are the reasons of the short order announced by us on 29.3.2016, whereby C.M.A.
No,1448/2011 filed by the appellant for condonation of delay was dismissed and resultantly the listed applications as well as the instant appeal were dismissed with no order as to costs.