AYESHA A. MALIK, J. --- This FAO is filed against order dated 1.4.2011 passed by the learned Judge Banking Court IV, Lahore.
2. Facts of the case as stated by the Appellant, are that the Respondent Bank filed a recovery suit against the Appellant which was decreed ex parte on 7.1.2.2009. The Appellant moved an application under Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("F10") on 15.2.2011 alleging therein that he was not served with any notice of the plaint nor was aware of the pending suit. The Appellant alleged that he has shifted his residence and service if any was made at the old address, hence he had no knowledge of the same. The Respondent Bank filed its reply and subsequently Respondent No, 2 vide impugned order dated 1.4.2011 dismissed the application of the Appellant.
3. Learned counsel for the Appellant argued that the learned Judge Banking Court ignored the fact that summons had not been duly served and that the Appellant was not at fault as the Respondents were aware of the changed address of the Appellant.
4. We have heard the counsel and find that no illegality made out against the impugned order. The impugned order finds the Appellant was served through all the four prescribed modes including publication of summons in two daily newspapers on the available address mentioned in the agreement and other relevant documents. Admittedly, the Appellant had changed his address but failed to communicate the same to Respondent No, 2 and there is nothing on the record to show that the Appellant informed the Respondent Bank of his changed address. Furthermore the Appellant admits to having taken the loan amount and utilized the same, however he claims that the Bank did not disburse the full amount. Therefore in the light of these facts it was incumbent upon the Appellant to retain contact with the Bank and inform the Bank of his changed address.
The Appellant was in default from 30.7.2008 when he did not pay the instalment whereafter ultimately he changed his address without any information to the Bank. The suit was decreed on 7.12.2009 ex parte. The mortgaged property was auctioned in favour of a 3rd party for which sale certificate has also been issued. The Appellant then filed an application under Section 12 of the FIO in 2011 claiming no knowledge of the decree.
5. Admittedly, the Appellant changed his address and was obligated to inform' the Bank of the change in address knowing that he had executed guarantees in favour of the Bank was liable to pay back the loan amount. In such a situation where the guarantor does not provide the new address, then service will be affected against such guarantor on the last known address where he resides. The Applicant concealed his address from the Bank and now cannot take the benefit of his own concealment. Reliance is placed on case titled Naseem Ullah Khan v. United Bank Ltd. (2007 CLD 1552).
6. The Appellant claims that the Bank has fraudulently obtained the judgment and decree from the Court, however, no case of fraud is made out by the Applicant. The Appellant has also failed to show that the fraudulent manner in which the Bank kept the Appellant out of the proceedings. The case titled Messrs Paras Oil Industries through Managing Partner and another v. Muslim Commercial Bank Limited through Manager (2016 CLD 1409) relied upon by the learned counsel for the Appellant is not applicable to this case as the same is based on different facts. Furthermore in that case proper service was not affected upon the appellant whereas in the case at hand, the Appellant was served through all the four prescribed modes on the address available with the Respondent Bank.
Under the circumstances no case for interference is made out, hence the instant appeal is dismissed and impugned order dated 1.4.2011 passed by Respondent No, 2 is maintained.