' JAWAD HASSAN, J.---The issue which arises for consideration in this appeal is the view taken by the learned Judge, Banking Court-II, Lahore in the captioned case where a decree for the recovery of Rs,58,64,884/- with costs along with cost of funds was passed against the Appellant in the captioned title.
2. The Appellant has, along with the main Appeal, filed the instant application (C.M. No,2-C/2013) under Section 5 of the Limitation Act, 1908 (the "Act") for condonation of delay. Learned counsel for the Appellant/Applicant submitted therein that the delay in filing the instant appeal was not deliberate; rather the file of the case was misplaced and when the same was traced out on 24.04.2013, the Appellant immediately filed the instant appeal. Learned counsel also contended that the application is supported by the affidavit of the Appellant/Applicant.
3. When the learned counsel for the Appellant/Applicant was asked whether section 5 of the Act ibid is applicable to the proceedings under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "2001 Ordinance"), where the time frame for filing the appeal is explicitly stated to be 30 days, he could not give any substantial reasons. Record reveals that even otherwise, not even a single document to strengthen the contention of the learned counsel for the Appellant/Applicant has been appended with the instant application.
4. Admittedly the period of limitation for filing the appeal under section 22 is only 30 days from the date of the decree. Hence, the nub of the matter in hand is to determine which law applies in this case. Section 5 of the Act or section 29(2) of the Act provides that where in a special law or in a local law, different period of limitation has been described then section 5 of the Act is not applicable. Since the 2001 Ordinance is a special law and the Act is a general law, therefore, section 5 of the Act is not applicable for filing of the appeal beyond the limitation period.
5. It is interesting to note that the learned counsel for the Appellant is fully aware of section 22 of the 2001 Ordinance which clearly provides that exact period of limitation for filing the appeal and the fact that this appeal is time barred has not been disputed by the learned counsel for the Appellant/Applicant as the instant application (C.M. No,02-C/2013) has been filed specifically under Section 5 of the Act for condonation of delay along with the main appeal.
6. To further corroborate the matter, reliance is placed on the recent case, where the Hon'ble Division Bench of Sindh High Court in case titled NIB Bank Ltd. v. Muhammad Zia Ali Qureshi (2016 CLD 2160) has observed that: "In order to appreciate, if the provision 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 provision of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal of 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 therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore 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 lay.
(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."
' 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 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 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."
' The Hon'ble Division Bench in the case supra has also relied upon the judgment of the Hon'ble Supreme Court of Pakistan titled Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286) wherein the Hon'ble Supreme Court of Pakistan held as under: 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."
' Reliance is also placed on the case titled Messrs Pangrio Sugar Mills Ltd. v. Bankers Equity Ltd. And 5 others (W15 CLD 637) and Tang Mehmood v. Atlas Bank (2015 CLD 959).
7. Based on the Sections of the 2001 Ordinance, the Act and the principles elaborated above, this appeal is admittedly barred by time and therefore, the Applicant filed this application under section 5 of the Act through C.M. No,2-C/213 for condoning the delay while only asserting that the Appellant filed the appeal before this court but the misfortune of his appeal was that same was returned being barred by time, hence delay in filing the appeal. This was the only ground mentioned in the application.
8. On the touchstone of the above discussion and case law, the instant application (C.M. No,2- C/2013), not being maintainable, is hereby rejected and as a consequence, the main appeal also stands to be dismissed.