' JAWAD HASSAN, J.---Through this appeal, the Appellant has assailed the judgment and decree dated 19.11.2014 passed by learned Single Judge in chamber, whereby suit filed by the Appellant was decreed in the sum of Rs,2,80,96,631.01 together with costs of funds against the Respondents jointly and severally with costs as contemplated by section 3 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "2001 Ordinance"). The costs of suit were also granted.
2. Brief facts for the disposal of this appeal are that the Appellant Bank granted a RF facility in the sum of Rs,45.000 Million to the Defendant No,1 Company through its offer letter dated 5.4.2008 with expiry on 28.2.2009. Pursuant to the offer letter, the Defendant No, 1 Company executed finance agreement and demand promissory note both dated 8.4.2008. In order to secure the RF facility the Defendants Nos. 2-5 executed their personal guarantees as well as mortgaged their properties, the details whereof are mentioned in paragraph-7 of the plaint. The Defendants sought renewal of the RF facility vide their letter dated 16.3.2009, which request was approved by the Appellant Bank and accordingly facility letter dated 24.7.2009 was issued. In terms of the said facility offer letter, the renewed RF facility was to expire on 27.2.2010. It is stated that the amounts under RF facility were fully utilized by the Defendant No,1 Company but on 27.2.2010, Defendant No,1 failed to pay the amounts outstanding under the RF facility. The requirements of section 9 of the 2001 Ordinance were met with paragraph-10 of the plaint. In response to summons issued by learned Single Bench, the defendants except Defendant No,4 entered appearance and filed their joint application for leave to defend bearing P.L.A. No,120-B/2010 ("PLA").
3. The said PLA was contested and vehemently opposed by the Appellant Bank and learned Single Judge in chamber proceeded to dismiss the PLA for want of raising any dispute requiring recording of evidence for its resolution. The suit of the Appellant Bank was decreed in its favour and against the Defendants jointly and severally in the sum of Rs,2,80,96,631.01 together with costs of funds as contemplated by section 3 of the 2001 Ordinance. The costs of the suit were also granted. The said judgment and decree has been assailed by the Appellant through this appeal.
4. When confronted with the learned counsel of the Appellant as to whether this appeal is time barred, its learned counsel has argued that appeal is not time barred because the Respondents have also filed appeal before this Hon'ble Court and since there were connected appeals and have to be decided together, therefore, question of limitation does not arise and appeal is not barred by time. He has relied upon judgment of Hon'ble Supreme Court of Pakistan titled Mehreen Zaib-un- Nisa v. Land Commissioner Multan (PLD 1975 SC 397), in which the Hon'ble Supreme Court of Pakistan condoned the delay of certain appeals being barred by time because they'involve substantial question of law of public importance which in any case to be decided in other appeals.
The counsel further relied on judgments of this Hon'ble Court titled Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore (PLD 2010 Lahore 160) in which Hon'ble Division Bench of this Court held that even if one appeal or proceedings are barred by limitation, it should be heard and decided on merits where connected appeal or proceedings involving identical legal questions arising from same order has been filed within time. Further the counsel for the Appellant argued that on the principle of the judgment referred above, the appeal is not time barred.
5. On the other hand, the learned counsel for the Respondents has argued that they have withdrawn their appeal hence this appeal stands alone and faces the consequences of limitation.
It has been argued by learned counsel for the Respondents that judgment and decree was passed on 19.11.2014 and after fourteen days they applied for obtaining certified copy of the judgment and decree on 3.12.2014. The copy was prepared on 18.12.2014, which was received on 19.12.2014.
Thereafter duration of winter vacations was w.e.f, 25th December 2014 to 1st January, 2015. The last date for filing of appeal as per limitation of 30-days was 3.1.2015. The appeal was filed by the appellant as per affidavit and opening sheet on 21.1.2015. The Appellant filed application for condonation of delay (C.M No,1-C/2015) in filing the appeal on 24.1.2015, therefore, the appeal was barred by 18-days.
6. The arguments of counsel for the parties have been heard and record of Banking Court has been perused.
7. We have gone through both the judgments cited above which are not applicable to the facts and circumstances of the instant case for reasons, inter alia, that they are under general laws not the special law. In the case of (PLD 1975 SC 397) (referred supra), the proceedings were arising out of the Martial Law Regulation and in the case of PLD 2010 Lahore 160 (Supra), the proceedings were arising out in the writ petition against the Punjab Judicial Service Rules, 1994. In the instant case, the proceedings are governed under the Special Statute, gives 30 days' time for filing the appeal and Section-5 is excluded due to section 29(2) of the Limitation Act, 1908 (the "Act").
8. Interestingly, it is not denied from perusal of record that Judgment and Decree was passed as far back as on 19.11.2014 and instant appeal for setting aside the said decree was submitted on 21.01.2015, which was barred by more than eighteen days, which was to be filed within 30 days from the passing of the impugned Judgment under section 22 of the 2001 Ordinance.
9. When a question was put to the learned counsel for the Appellant/Applicant whether section 5 of the Act is applicable to the proceedings under section 22 of the 2001 Ordinance, wherein the strict timeframe for filing the appeal is only 30 days, he could not satisfy us through note-worthy 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, except C.M. No,1-C/2015.
4(sic.) 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 whether section 5 of the Act is applicable in this case or section 29(2) of the Act which provides that where in a special law or 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 is not B applicable for filing of the Appeal beyond the limitation period.
10. It is interesting to note that the learned counsel for the Appellant having full knowledge of section 22 of the 2001 Ordinance which clearly provides that period of limitation for filing the appeal and the fact, of this appeal being time barred, has not been disputed by the learned counsel for the Appellant/Applicant as the instant application (C.M. No,1-C/2015) has been filed specifically for condonation of delay along with the main appeal.
11. To support the nub of this matter, in a fairly similar case, the Hon'ble Division Bench of Sindh High Court in case titled NIB Bank Ltd. v. Muhammad Zia Ali Qureshi (2016 CLD 2160) has recently observed as under: "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 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 therefor by the First Schedule, the provisions of section 3 shall apply, asif 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".
' 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."
12. 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 (2015 CLD 637) and Tariq Mehmood v. Atlas Bank. (2015 CLD 959).
13. Based on the Sections of the Ordinance, the Act and the principles elaborated above, this appeal is admittedly barred by time and therefore, the C.M. No,1-C/2015 is dismissed, and thus in consequence, the Appeal is also dismissed.