' Through this appeal, the Appellant has called into question order dated 23.11.2016 passed by the Respondent No,2 Judge Banking Court-II, Faisalabad, whereby the application of Appellant was dismissed and consequently through the impugned order warrant of arrest was issued against the Appellant/judgment debtor.
2. The learned counsel for the Appellant states that Respondent No,2/decree holder Bank filed a suit for recovery of Rs,10,36,326/- along with costs and costs of funds against the Appellant/judgment debtor on 12.04.2011, which was decreed ex parte vide judgment and decree dated 24.06.2011. An application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "2001 F.I.O.") was moved by the Appellant/judgment debtor on 28.8.2014 for setting aside the said ex parte Judgment and Decree on the ground that the Petitioner never received notice or read any newspaper reflecting the notice. The said application was opposed by the Bank and was dismissed by Banking Court vide order dated 23.11.2016.
3. We have heard the arguments and examined the record this appeal.
4. It has been argued by learned counsel for the Appellant that impugned order whereby warrant of arrest against the Appellant was previously ordered to be issued is without any lawful authority because no notice was served upon him, therefore, he has been condemned unheard. Remarkably, it is not denied from perusal of record that ex parte Judgment and Decree was passed as far back as on 24.06.2011 and application for setting aside the said decree was submitted on 28.08.2014, which is time barred by more than three years and two months, which under law has to be filed within 21 days from the passing of the impugned Judgment and Decree under section 12 of 2001 F.I.O. We have noted that no plausible explanation and noteworthy cause regarding filing of said application after a lapse of three years and two months is worth mentioning which was rightly dismissed by the Banking Court by holding that the application is barred by time. Hence, we do not find any infirmity or illegality in the finding of the Banking Court.
' Further, it is also important to note that before passing of the impugned ex parte Judgment and Decree, the Appellant was duly served through publication as per requirement of section 9(5) of the 2001, F.I.O. In daily "The News" dated 10.05.2011, daily "Din" dated 06.05.2011 through postal receipt dated 14.03.2011, through courier service on 14.05.2011 and through Bailiff on 3.5.2011, but neither the Appellant nor his agent appeared before the Court and no petition for grant of leave to defend the suit under section 10 of the 2001 F.I.O. Was moved within 30 days from date of first publication of notice, therefore, ex parte proceedings were rightly taken against the Appellant. Reliance in this respect is placed upon Ameen Riaz and another v. Alzamin Leasing Modarba and another (2009 CLC 661) in which it has been held that:- "The bare reading of section 9(5) visualizes that after the plaint has been presented in the Banking Court summonses shall be served upon. The defendant through Bailiff or process server, by registered post acknowledgement due, by courier and by publication in one English language and one Urdu language daily newspapers and service duly effected in .Any one of the aforesaid modes shall be deemed to be valid service for the purpose of this., Ordinance. Section 10 of the Ordinance provides that 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 section 9(5). The object of the Ordinance was to provide machinery for expeditious recovery of the money."
' Moreover, from the record, the report of Bailiff dated 03.05.2011 is very much relevant which reveals that service of the Appellant was effected through affixation which is sufficient to prove that Appellant was properly served. Reliance in this respect is placed upon Messrs Naqvi Developers and others v. Habib Bank Limited (2007 CLD 1194), in which the Division Bench of this Court dismissed the F.A.O. By holding as under:- "Admittedly, the application of the appellant under sections 12 and 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside ex parte judgment and decree dated 28.2.1995 had been moved on 18.7.2006 after a lapse of a period of more than 11 years after passing of the ex parte judgment and decree against the appellant. The learned Judge Banking Court No,11, Lahore, vide order dated 20.7.2006 has held that after passing of the ex parte decree the appellant's company Messrs Naqvi Developers and Builders as well as the respondent-Bank were in liquidation and Builders as well as the respondent-Bank were in liquidation proceedings before the learned Company Judge of Lahore High Court Lahore and concluded from this fact that the parties were undeniably in litigation for a long period and it was not believable that the appellant was not aware of passing of the ex parte judgment and decree dated 28.2.1995. Learned Judge Banking Court further held that after passing of the ex parte decree the execution proceedings were initiated in the year 1996 wherein legal proceedings including notices had also been issued and the publication of the schedule of auction had also been published. The execution proceedings were being, conducted also for a long duration of ten years as such it was unbelievable that the appellant came to know about the ex parte decree on 4-7-2006 for the first time; that there has been no explanation of delay. The petition of the appellant was dismissed being barred by time by 11 years. It was further observed that it was only when the warrants of arrest of the appellant were issued for the satisfaction of the decree that the appellant had submitted the instant application for setting aside the ex-parte decree. The learned counsel for the appellant has not been able to substantiate his claim that the appellant had changed his residence prior to the filing of the suit. The learned counsel for the appellant stated that the appellant was living abroad in London and thereafter he relied upon the letter dated 9-6-1993 wherein the letter addressed by the respondent Bank to the appellant is of the address at Islamabad."
By giving plain and ordinary reading to the words of section 9(5) of the 2001 F.I.O., it can be seen that upon presentation of the plaint, the Banking Court is to issue notice to the defendant in all the modes provided under the law and the service effected in any one of the modes would be deemed to be a sufficient service. The Supreme Court of Pakistan in a judgment reported in Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497) has held that the service effected through publication of notice in a newspaper is a valid service. The legislature while promulgation we 2001 F.I.O. Went a step further while framing subsection (5) of section 9 of the 2001 Ordinance to ensure that the service is effected upon the defendants at the earliest, so that the disposal of recovery suits is not delayed.
5. In the present case, the service has been effected upon the Appellant in publication in (2) newspapers. While following the dictum laid down in PLD 1990 Supreme Court 497 supra by the Supreme Court of Pakistan, this Court in judgment reported in Khawaja Muhammad Bilal v. Union Bank Limited through Branch Manager 2004 CLD 1555 (Lahore) has held that in case of publication of notices in newspaper, the service upon the defendants would be deemed to have been effected.
6. By placing reliance on the aforesaid law, the judgments relied upon herein and the discussion above, we approve the finding that the application is time barred given in the judgment being contested by the Appellant and the service of notice is a valid service in terms of section 9(5) of the 2001 F.I.O.
' We find no merit in this appeal, therefore, the same is dismissed in limine.