' This appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) is directed against order dated 11.1.2017 whereby application of the appellants under section 12 of the Ordinance read with section 12(2), C.P.C. Was dismissed.
2. Relevant facts are that respondent bank filed suit for recovery of Rs,2143571.23 along with costs and cost of fund on 21.10.2015. Notices were issued to the defendants as per mode prescribed under section 9 of the Ordinance. However, no one appeared on behalf of the defendants and no Petition for Leave to defend (PLA) was filed, hence suit was decreed on 24.5.2016. The appellants/defendants filed application under section 12 of the Ordinance read with section 12(2), C.P.C. On 27.6.2016 to set aside the judgment and decree. The said application was dismissed on 11.1.2017, hence this appeal.
3. Learned counsel for the appellants argued that appellants were not served through any mode prescribed under law as address given in the plaint was not correct and appellants were already shifted to rented premises in Johar Town, Lahore. He further submits that bank was intimated regarding new address on 21.10.2015. Learned counsel also referred to rent deed executed by appellant No,
1. He further submits that appellant No,3 was out of Pakistan at the relevant time, therefore, learned Court wrongly held that appellants were duly served.
4. We have heard the arguments of learned counsel for the appellants at limine stage.
5. The record shows that suit was filed against appellants on 21.10.2015 in which, notices were issued through all modes prescribed under section 9 of the Ordinance. The appellants neither appeared nor filed their PLA within prescribed period, hence suit was decreed on 24.5.2016. The main contention of the appellants is that their address in the plaint was not correct, hence they were not served. We have considered this argument in the light of available record and have noted that address given in the plaint was House No,787, Nasheman-e-lqbal Cooperative Housing Society, Lahore and same address was also admittedly mentioned by the appellants in their affidavits filed along with application under 12 of the Ordinance read with section 12(2), C.P.C.
6. The argument of learned counsel for the appellants that respondent bank was duly informed regarding change of address through letter dated 21.10.2015 has also no basis. The said letter shows that same was received by bank on 21.10.2016 which was much after passing of decree on 24.5.2016.
Reliance of the appellants on rent deed is also misplaced. The said rent deed in favour of appellants for House No,243, H.3, Johar Town, Lahore is dated 30.6.2016, which is also after the judgment and decree passed by the learned Court. The plea of the appellant No,3 that he was out of country at relevant time was never raised before learned Court below, hence this ground cannot be agitated for the first time in appeal. Even otherwise, copies of passport enclosed does not show that when respondent No,3 entered in Pakistan if at all he was out of country.
7. From above discussion, it is evident that address given in the plaint was last known address available with the respondent bank and therefore, appellants were not only served through affixation but also through publication in newspapers. The appellants were bound to file their PLA within 30 days and in case of failure, the Banking Court had rightly passed the decree under section 10 of the Ordinance. The appellants could file application under section 12 of the Ordinance within 30 days to set aside the decree dated 24.5.2016, however, the same was filed on 27.6.2016, beyond the limitation period prescribed under the law. The appellants have also not shown any element of fraud or misrepresentation on part of respondent bank in obtaining judgment and decree dated 24.5.2016, therefore, provision of section 12(2), C.P.C. Was also not attracted.
8. In view of above, no illegality or infirmity is found in the impugned order dated 11.1.2017.
Accordingly, this appeal is dismissed in limine.