JAWAD HASSAN, J.---Through the instant First Appeal Against Order filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellant seeks setting aside of order dated 10.04.2014, passed by the Judge Banking Court-III, Lahore (the "Banking Court") whereby his application for setting aside ex parte judgment and decree dated 17.02.2011 was dismissed.
2. Learned counsel for the Appellant inter alia submitted that the impugned order is against law and facts; that the Court below has failed to appreciate the fact that the ex parte judgment and decree has been passed without exhausting the statutory period mentioned in the Ordinance; that the impugned order suffers from regal infirmities and material illegalities; that the impugned order has been passed against the verdict of the apex Court, as such liable to be set aside. In support of his contentions learned counsel placed reliance on the case titled Saleem Ahmed v. Zarai Taraqiati Bank Limited through Manager (2007 CLD 872 [Lahore]).
3. On the other hand learned counsel for the Respondent submitted that the impugned order has rightly been passed and there is no illegality in the impugned order. As such, the instant Appeal is liable to be set aside. Learned counsel for the Respondent relied upon the judgment of the Hon'ble Supreme Court of Pakistan in case titled Sahara Trading International (Pvt.) Ltd. and others v. Bank Alfalah Ltd. (PLD 2004 Supreme Court 925).
4. We have heard the arguments of the learned counsel for the parties and have perused the record.
5. From the perusal of record it reveals that the Respondent Bank filed a suit against the Appellant and others for recovery of Rs,7,480,573.08 along with cost of suit, cost of funds and other charges payable by the Appellant under the Ordinance. In pursuance of which the Banking Court vide order dated 21.12.2010 issued summons to the Appellant and others as per Section 9(5) of the Ordinance through all modes viz: summons accompanied by a copy of the Bailiff of the Court as well as by registered post acknowledgement due, by Courier Service and by Publication in Urdu daily Nawa- e-Waqt and in English daily the Dawn and fixed the case on 17.02.2011. The Summons were issued through all modes on the following dates: i. Nawa-e-Waqt on 20.01.2011 ii. Dawn on 17.01.2011 iii. Registry on 19.01.2011 iv. Courier on 19.01.2011.
6. Thereafter, while relying upon the service through publication in the daily Dawn, the Banking Court proceeded against the Appellant ex parte and on 17.02.2011 the ex parte judgment and decree was passed in favour of the Respondent.
7. The contention of the learned counsel for the Appellant is that the Appellant got knowledge of the proceedings in the suit when he received the notice on 20.01.2011 through daily Nawa-e-Waqt indicating the next date of hearing in the suit as 17.02.2011. It is further contended by the learned counsel for the Appellant that on 17.02.2011, he appeared before the Banking Court and submitted application for leave to appear and defend the suit, he came to know that ex parte judgment and decree has been passed against the Appellant without exhausting the statutory period of 30 days.
On 18.02.2011 the Appellant filed application under section 12 of the Ordinance for setting aside ex parte judgment and decree dated 17.02.2011 which was dismissed by the Banking Court vide the impugned order.
8. From the perusal of impugned order it reveals that the Banking Court has calculated the time of 30 days, that is statutory period, from the date of issuance of service through the daily Dawn i,e, 17.01.2011 and observed that the judgment debtors were summoned through all the prescribed modes of service and the first service was effectuated upon the judgment debtors through daily Dawn dated 17.01.2011. However, within the stipulated period, none appeared on behalf of the judgment debtors, therefore, this Court while calculating the stipulated time period of thirty days rightly passed the ex parte judgment and decree dated 17.02.2011 against the judgment debtors.
But on the other hand the Appellant alleges that he came to know about the suit proceedings on the notice through daily Nawa-e-Waqt on 20.01.2011. He also appended with the Appeal copy of application for leave to appear and defend the suit filed under section 10 of the Ordinance which shows that the same has been received by the Banking Court on 17.02.2011. The Appellant has also filed application under section 12 of the Ordinance, mentioning the said fact, for setting aside the ex pane judgment and decree dated 17.02.2011 which is duly supported by an affidavit. But on the contrary, the Respondent has nothing produced in support of his contention and only relied upon the judgment of the Hon'ble Supreme Court of Pakistan in Sahara Trading's case supra.
9. From the above discussion, it is apparent that the Appellant came to know about the proceedings of the suit against him on 20.01.2011 through the daily Nawa-e-Waqt, therefore, the Banking Court should have considered the date of knowledge as 20.01.2011 instead of 17.01.2011. In this regard section 12 of the Ordinance is very much clear. For the sake of brevity the said Section is reproduced below and is as under: "Power to set aside decree.---In any case in which a decree is passed against a defendant under subsection (1) of section 10 he may, within twenty-one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order" to set it aside; and if he satisfies the Banking Court that he was prevented by sufficient cause from making an application under section 10, or that the summonrwas not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, deposit in cash or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order."
10. The statutory period of thirty days as per the Ordinance, if calculate, commences from 20.01.2011 on the date of knowledge i,e, from the daily "Nawa-e-Waqt". Meaning thereby, the application for leave to appear and defend the suit was filed on 17.02.2011 which is well within time.
Even otherwise, the record reveals that the Banking Court calculated the limitation period from daily "Dawn" dated 17.01.2011 and the time for filing of leave to defend the suit had to lapse on 16.02.2011 and on that day there was public holiday of 12th Rabi-ulAwal, therefore, filing of leave to defend on 17.02.2011, by the Appellant was otherwise well within time. The ex parte judgment and decree has been passed by the Banking Court in hasty manner without taking into consideration the facts mentioned above. In this regard reliance can be placed on the case of Saleem Ahmed supra in which this Court has held as under: "Passing of decree before 'termination of limitation for filing of application for leave to defend the suit. The Bank filed suit against two persons, one had died much before filing of the suit while the other was not served in accordance with the provisions of section 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001. The Report of process server was dated 17-10-2005, while case was taken up on 20-10-2005 and on the same day, the suit was decreed ex parte. The Application filed by defendant for setting aside ex parte decree was dismissed by Banking Court.
Application for leave to defend was to be filed, under section 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, within thirty days of the date of first service by any one of the modes. Banking Court failed to mention any such date of service.Even if it was deemed that deceased defendant was alive and there was due service of the process, the defendants in the suit had thirty days to file application for leave to defend. When the Banking Court passed the decree, still 27 days were available to defendants to file application for leave to defend, thus ex pane decree was without jurisdiction. High Court set aside ex parte decree passed by Banking Court and remanded the case for decision afresh. High Court directed the defendant to file application for leave to defend the suit within ten days. The Appeal was allowed accordingly."
11.Moreover, the judgment relied upon by the learned counsel for the Respondent is not supportive to its case being distinguishable from the case in hand as each and every case has its own facts and circumstances, therefore, the same cannot be relied upon.
12. In view of above situation, this Appeal is accordingly allowed and the impugned order dated 10.04.2014 as well as the ex parte judgment and decree dated 17.02.2011 are set aside to the extent of the Appellant/Defendant No,3. The result would be that the suit filed by the Respondent-Bank shall be deemed to be pending against the Appellant/Defendant No,3 before the Banking Court.
The application for leave to appear and defend the suit has already been filed by the Appellant which shall be considered accordingly.