' MUHAMMAD SAND MEHMOOD SETHI, J.---Through instant Regular First Appeal (RFA), filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance ("F10"), 2001, judgment and decree dated 17.11.2015, passed by learned Single Judge of this Court, has been assailed, whereby application for leave to defend the suit (PLA) filed by appellant was dismissed on the ground of being barred by time.
2. Brief facts of the case are that respondent No,1 filed a suit for recovery of Rs,52,472,390.12 under section 9 of the F10, 2001, against appellant and respondents Nos.2 to 5. The appellant filed PLA No,67-B of 2012 and respondent No,2 filed PLA No,96-B of 2012. After hearing the arguments, suit was decreed vide judgment dated 26.12.2014, which was impugned before this Court through RFA No,642 of 2015. The said appeal was allowed and 'the case was remanded with the direction to decide PLA No,67-B of 2012 on merits, vide judgment dated 08.07.2015. In post remand proceedings, said PLA was dismissed by learned Single Judge on the ground of being barred by time and suit was decreed in the sum of Rs,52,742,390.12, vide judgment and decree dated 17.11.2015. Hence, this appeal.
3. Learned counsel for appellant submits that the impugned judgment and decree passed by learned Single Judge is against the remand order passed by learned Division Bench, wherein it was observed that the PLA shall be decided on merits in accordance with law. He adds that the impugned judgment and decree have been passed without considering the most important aspect of the case that Personal Guarantee (D-4) is a forged and manipulated document as the same was never signed by the appellant. He further submits that the case should have been decided after seeking verification of signatures from the handwriting expert. He contends that loan liability was confined to Rs,29,858,773.12 while decree against the appellant has been passed in the sum of Rs,52.742,390,12. He further submits that PLA was within time from the date of knowledge, even otherwise there was delay of only two days from the date of delivery of summons at his premises when he was out of city, which was duly explained in the application for condonation of delay and the matter should have been decided on merits in line with the findings given by learned Division Bench in the earlier round of litigation. In support of his contentions, he has placed reliance on Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. (2009 SCMR 264) and Fazli Hakeem and another v. Secretary State and Frontier Regions Division Islamabad and others (2015 SCMR 795).
4. On the other hand, learned counsel for respondents submits that the application for leave to defend the suit was barred by time and the delay has not been satisfactorily explained, therefore, it was rightly dismissed. He adds that the conduct of appellant was negligent, so delay cannot be lightly condoned as in circumstances, valuable rights have been created in favour of respondent bank. He has placed reliance on Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286), Akhtar Kaleem v. Citibank N.A. Through Branch Manager (2004 CLD 1361), Chaudhry Muhammad Aslam v. SME Bank Limited through Chairman/President and 2 others (2006 CLD 1301), Abdul Rahim Patel v. Habib Bank Limited through Branch Manager and another (2008 CLD 701), Messrs S. Malik Traders and another v. Saudi Pak Leasing Company Ltd. (2009 CLD 171), NIB Bank Limited v. The State and 3 others (2010 CLD 10). And Tariq Mehmood v. Atlas Bank Ltd. Through Authorized Agent (2015 CLD 959).
5. Arguments heard. Record perused.
6. Perusal of impugned judgment and decree shows that learned Single Judge has dismissed the PLA filed by the appellant by observing that it was barred by time and that no explanation whatsoever was given in the application for condonation of delay. The operative part of the impugned judgment reads as under:- "5. It is an admitted fact that PLA No,67-B of 2012 was not filed within the stipulated period and was thus barred by time. An application for condonation of delay bearing C.M. No,277-B of 2012 was filed along with the PLA. In the said application it was stated that defendant No,5 had gone out of city in connection with his business affairs and, therefore, acquired knowledge about the pendency of the suit on 15.03.2012. Having gained knowledge of the pendency of the suit on 15.03.2012, defendant No,5 still filed the application for leave to defend on 13.04.2012 which was outside the limitation period. No explanation whatsoever was proffered for not filing the application for leave to defend within time.
5. In the result, the application for leave to defend filed by defendant No,5 being time barred is dismissed. Resultantly, the. Contents of the plaint qua 'defendant No,5 are deemed to be admitted.
Consequently the suit of the plaintiff is decreed in its favour and against defendant No,5 in the sum of Rs,52,742,390.12 together with the costs of funds as contemplated by section 3 of the Ordinance.
C.M. No,784-B of 2014 and C.M. No,277-B of 2012 are also dismissed."
[emphasis supplied]
7. Record reveals that as per averments of PLA and application for condonation of delay, summons were delivered at the premises of appellant on 10.03.2012 when stately he was out of city. The appellant came to know about suit proceedings on 15.03.2012 and filed PLA on 13.04.2012 with a delay of 2/3 days from the date of delivery of summons and within time from the date of knowledge. The Court has not given any findings on the stance taken by the appellant regarding service of summons upon him rather has taken the date of knowledge of the appellant regarding pendency of suit as 15.03.2012.
8. Undeniably, the appellant came to know about the suit proceedings on 15.03.2012, which stood uncontroverted and in such circumstances, the Banking Court is vested with the power to extend time or condone delay in filing PLA under section 10(2) read with section 9(5) of the FIO, 2001. The aforesaid provisions of law read asunder: ' Section 10(2) of the FIO, 2001:- "The defendant shall file the application for leave to defend within thirty days of the date of first service by any one of the modes laid down in subsection (5) of section 9: ' Provided that where service has been validly effected only through publication in the newspapers, the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof."
' Section 9(5) of the FIO, 2001:- "On a plaint being presented to the Banking Court, summons in Form No,4 in Appendix "B" to the Code of Civil Procedure, 1908 (Act V of 1908) or in such other form as may, from time to time, be prescribed by rules, shall be served on the defendant through the bailiff or process-server of the Banking Court, by registered post acknowledgment due, by courier and by publication in one English language and one Urdu language daily newspaper, and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance. In the case of service of the summons through the bailiff or process-server, a copy of the plaint shall be attached therewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the office of the Banking Court without making a written application but against due acknowledgment. The Banking Court shall ensure that the publication of summons takes place in newspapers with a wide circulation within its territorial limits."
9. Examination of said provisions of law shows that the Banking Court is authorized to extend or condone time upon being satisfied that the appellant, requesting condonation of delay in filing PLA, did not have any knowledge/notice even by proclamation in the newspaper, about the pendency of proceedings against him in the Banking Court before the date of knowledge disclosed by him in his pleadings. The said provisions of law give powers to the Court to condone the delay and also provide a concession to the defendant/appellant. The object and intention of the legislature behind said provisions of law is that concession in respect of limitation be provided inasmuch as there was possibility that an aggrieved party might not have knowledge/notice or service through proclamation in the newspaper, of the proceedings. The provisions of sections 9(5) and 10(2) of the FIO, 2001 with regard to service of the defendant/appellant were not to be read disjunctive from the rule of natural justice "audi alteram partem"; which was to be read into every statute regardless of whether or not the same was contemplated in the statute. Article 10-A of the Constitution provides that every individual is entitled to a fair trial and due process and Article 4 of the Constitution lays down that every citizen is entitled to be treated in accordance with law.
10. It is also to be noted that without first holding service upon defendant/appellant by any of the modes including service through proclamation in the newspaper, the PLA filed by the appellant cannot be held to be barred by time. Provisions relating to limitation should be construed to preserve the rights of the parties unless service of notice upon the defendant is clear and his conduct is reflecting a gross negligence. Once the appellant has pleaded his date of knowledge as 15.03.2016, which stood un-repelled/uncontroverted in the impugned judgment and not seriously assailed/opposed by respondents, thirty days period of limitation under section 10(2) of the F.I.O., 2001 is liable to be condoned as delay stood explained and mere non-filing of PLA on or before 12.04.2012 does not justify rejection of applications for leave to defend the suit and condonation of delay on such ground. Learned Banking Court while dealing with aforesaid applications, has power to condone the delay or extend time under section 10(2), if the defendant can satisfy the Court that he has no knowledge of summons through any modes including publication in the newspaper, as it has been pleaded by the appellant in the instant case that his date of knowledge was 15.03.2012, coupled with the fact that on merits, he is denying his signatures on loan liability documents and prima facie, there is some substance in his arguments upon comparison of disputed signatures with admitted one. Reference can be made to Naziran Begum and 2 others v. Saleh Muhammad and others (2002 SCMR 37), Mst. Hajra Bibi v. Zarai Taraqiati Bank Limited (ADBP) through Manager (2006 CLD 261), Aamer Enterprises (Pvt.) Ltd. And 3 others v. Messrs United Bank Limited and another (2009 CLD 342), Shahi Textiles and 3 others v. Askari Bank Limited through President (2011 CLD 995) and Combine Products and 3 others v. Messrs SME Leasing Limited (2015 CLD 1188).
' In the case of Fazli Hakeem supra, the Hon'ble Supreme Court has held as under:- "7. Even otherwise, the Courts of law are not supposed to perpetuate what is unjust and unfair by exploring explanation for an act which is prima facie against law and thus void. They should rather explore ways and means for undoing what is unfair and unjust. Even the question of limitation; if at all, created any impediment in the fair adjudication of the case, has to be looked for such angle of vision. When considered in this background, we are constrained to hold that the controversy urged before the Service Tribunal has not 'been considered and decided in its correct perspective.
Remand of the case would thus be inevitable. We, therefore, convert these petitions into appeal, set aside the impugned judgment and send the case back to the learned Service Tribunal for decision afresh in accordance with law."
11. There is another reason to condone delay or extend time for filing of PLA. Admittedly, PLA No,96-B of 2012 filed by respondent No,2 was within time, which was to be heard and decided on merits. The question of limitation is discretionary in nature and it should have been exercised to condone the delay on the ground that connected PLA did not involve question of limitation. The Hon'ble apex Court, in a number of cases, has condoned the delay where the connected case was within time and reasons given for condonation of delay were cogent. Reference in this regard can be made to Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v.
Government of through Services, General Administer and Formation Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645), Commissioner of Income Tax and others v.
Messrs Media Network and others (PLD 2006 Supreme Court 787) and House. Building Finance Corporation Ltd. Through Manager Law v. Vth Banking Court at Karachi and another (2011 CLD 1056).
' In the case of Messrs Media Network supra, the Hon'ble apex Court held as under:- "35. Some of these cases such as Civil Appeals Nos.282, 299, to 309, 312 to 315, 835, 837, 840, 842, 844/2004, 1211, 1212, 1213, 1214, 1641, 1704/2005 have been filed after the expiry of limitation period.
They are accompanied by the applications for condonation of delay. Since the other appeals were filed within limitation period, therefore, we condone the delay in all such appeals for the reasons stated in the applications for condonation of delay and by following principles laid down in the cases of. Sheikh Muhammad Rashid (supra), Ch. Manzoor Elahi (supra), Mehreen Zaibun-nisa (supra), Fazal Elahi and others (supra) and Province of Punjab v. Muhammad Tayyab and others (1989 SCMR 1621)...... "
12. In the instant case, appellant has assailed his liability and has stated that guarantee (D-4) is a forged and manipulated document as the same was never signed by him. In view of denial, it was essential for the Court to have referred the same to a handwriting expert for obtaining his opinion whether the so called signatures on the disputed document were forged or manipulated. Though, this Court does not have expertise to determine genuineness of the signatures but prima facie, we find some substance in the argument of the appellant. In our view, it is expedient if the signatures of the appellant are referred to handwriting expert for opinion. Reference in this regard can be placed on Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. (2009 SCMR 264), the relevant part of which is reproduced hereunder:- "7. We have minutely examined the disputed documents. In view of the emphatic denial by the petitioner of having signed the aforesaid documents. In our view, it was imperative for the Banking Court to have referred the same to handwriting expert for obtaining his opinion whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the ground of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed, power of attorney, etc. Led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a handwriting expert for conclusively hold that the disputed documents bear the signature of the petitioner. It is a right of a party to seek and demand every possible assistance from the Courts of law and to hold him/her responsible only when he or she is found to have acted contrary to law."
13. It is also the stance of appellant that respondent bank vide letter dated 2.04.2015 settled in outstanding principal loan liabilities with respondents where-under an amount of Rs,22.635 million was received by the respondent bank and it discharged other respondents from the remaining liability under the decree including suspended markup, cost of litigation and cost of funds. The respondent bank also released plot No,304 and land situated in Tehsil Ferozewala from the lien/charge and claimed an amount of Rs,29,858,773.12 outstanding while the impugned judgment and decree have been passed in the sum of Rs,52,742,390.12, and this submission of learned counsel for appellant has not been controverted by learned counsel for respondents. In this view of the matter, decree could not have been passed in the sum of Rs,52,742,390.12, which is manifestly in excess of the liability and thus, is not sustainable in the eye of law. Reference can be placed on Mian Munir Ahmed v. United Bank Limited and 3 others (PLD 1998 Karachi 278).
14. We have also examined the judgment dated 08.07.2015, passed by learned Division Bench of this Court in RFA No,642 of 2015, the operative part of which is reproduced hereunder:- "8. In view of the above, the instant appeal is accepted, the impugned judgment and decree dated 26.12.2014 is hereby set aside to the extent of the appellant and PLA No,67/B/2012 filed by the appellant/respondent No,1 will be deemed to be pending before the learned Banking, Judge, who shall decide the same on merits and in accordance with law. C.M. No,1/C/2015 also stands allowed."
15. So far as the argument of learned counsel for respondents that each and every day's delay has to be explained and application for condonation of delay does not disclose any convincing and plausible reasons, is concerned, suffice it to say that delay has been explained for the reasons that firstly, no findings have been given on the service of summons upon appellant, through any modes including proclamation in the newspaper, in the impugned judgment; secondly, the date of knowledge of suit proceedings has been taken to be 15.03.2012 as pleaded by the appellant without any reservation, thus, the delay is explained within the contemplation of section 10(2) of F.1.0., 2001; thirdly, the Court can extend time when defendant shows that he was not served on the relevant date through any of the modes including publication in the newspaper and discloses another date of his knowledge, which is not opposed; fourthly, the matter was remanded by learned Division Bench to decide PLA on merits; and fifthly, PLA No,96-B of 2012 was within time, which was to be decided on merits. In such circumstances, PLA filed by appellant is also required to be decided on merits after condoning the delay / extending time within the purview of said provisions of law.
16. There is no cavil with the argument of learned counsel for respondents that delay in filing proceedings cannot be condoned lightly unless there are shown sufficient reasons causing delay; law of limitation reduced an affect of extinguishment of a right of party when significant lapses occurred and when no sufficient cause of such lapses, delay or time barred action was shown by defaulting party, the opposite party was entitled to a right, accrued by such lapses; and negligence does not constitute sufficient cause to condone delay but in the instant case, the reason for delay that he was not served any of the modes prior to the date i,e, 15.03.2012, which has been taken to be the date of knowledge in the impugned judgment and not seriously controverted by the respondents. In such circumstances, application for condonation of delay discloses cogent, convincing and justified reasons for extension of time or condonation of delay, which is of merely 2/3 days, within the scope of said provisions of law. Under the law, when delay is duly explained by the defaulting party, then it is his right to have hearing on merits. In this view of the matter, the case law cited by learned counsel for appellant is quite distinguishable and thus, not attracted in the facts and circumstances of instant case.
17. In view of the above discussion, instant appeal is allowed. The impugned judgment and decree are set aside, as a result whereof the PLA filed by appellant shall be deemed to be pending, which shall be decided on merits.