Mamoon Rashid Sheikh, J.--Through this single judgment we propose to decide the instant appeal (RFA No, 49/2015) and RFAs No, 50/2015, 51/2015 and 53/2015 as common questions of law and facts arise therein.
2. All the appeals have been filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the FIO), and are directed against the judgments and decrees passed by the learned Banking Court No, II, Multan, whereby the appellant-bank's four (4) separate suits, against the respondents, have been dismissed The instant appeal (RFA No, 49/2015) is directed against the judgment and decree, dated 29.09.2014, RFA No, 50/2015 is directed against the judgment and decree, dated 23.10.2014, RFA No, 51/2015 is directed against the judgment and decree, dated 23.10.2014 and RFA No, 53/2015 is directed against the judgment and decree, dated 22.09.2014.
3. The respondents in all the appeals did not enter appearance despite publication of notices. As a consequence, ex parte proceedings were initiated against them on the last date of hearing (02.10.2017). The appeals have been repeatedly called today. All the respondents remain unrepresented. Ex parte arguments of the learned counsel for the appellant have consequently been heard.
4. The facts relevant for the present purposes are to the effect that the respondents in all the appeals are customers of the appellant. The, respondents applied for and obtained finance facilities from the appellant. The respondents secured the finance facilities by, inter alia, creating mortgages on their respective properties. All the respondents defaulted in repaying the finance facilities, hence, the appellant filed four (4) separate suits for recovery, of the outstanding amounts, against the respondents. All the respondents failed to enter appearance despite, service of notices through ordinary modes and publication of notices in two national dailies. Consequently, ex parte proceedings were initiated against the respondents. Ex parte arguments were heard. However, the appellant's suits were dismissed through the impugned judgments and decrees, on the sole ground of limitation. The learned Banking Court held that under the provisions of Article 132 of the First Schedule to the Limitation Act, 1908, the limitation for filing the suits was twelve (12) years. The suits were, however, filed by the appellant beyond the prescribed period of limitation and no application for condonation of delay had been filed in any of the suits.
5. The learned counsel for the appellant submits that the learned Banking Court erred in law in dismissing the appellant's suits through the impugned judgments and decrees. Submits that the impugned judgments and decrees have been passed against the facts and law of the case. They are based on conjectures and surmises.
6. Further submits that under Section 10(1) of the FIO it was mandatory upon the learned Banking Court to give an opportunity to the appellant to further document the suit.
7. Contends that the point of limitation in all the suits was a mixed question of law and facts which could not have been decided without recording of evidence. The learned Banking Court, however, failed to give an opportunity to the appellant to lead evidence on the question of limitation, therefore, the learned Banking Court erred in law.
8. Lastly refers to Section 24 of the FIO, which reads as under: "24. Application of the Limitation Act, 1908 (Act IX of 1908).--
(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908) shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance.
(2) A suit under Section 9 may be entertained by a Banking Court after the period of limitation prescribed therefore, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period."
Contends that under sub-section (2) of Section 24 it was mandatory for the learned Banking Court to have provided an opportunity to the appellant to satisfy the Banking Court that the appellant had sufficient cause for not filing the suits within the period of limitation.
9. We have considered the arguments of the learned counsel for the appellant and have also gone through the impugned judgments and decrees. We have also examined the record of all the appeals. We find that the judgments in all the suits are identical in nature. Indeed, they appear to be cyclostyle copies with the minor variation of party names and the detail of the sanction letter of the finance facility of each respondent and the date of repayment of the finance facility.
10. As observed above, the appellant's suits were dismissed on the sole ground of limitation. It is settled law that where a suit is instituted after expiration of the prescribed period of limitation and exemption from such period of limitation is claimed then the plaint is required to show the ground on which such exemption is sought. Reference in this regard is made to Order VII, Rule 6, of the CPC.
11. It is further settled law that under the provisions of Section 24(2) of the FIO a suit for recovery filed under Section 9 of the FIO may be entertained by the Banking Court after the expiry of period of limitation if the plaintiff is successful in satisfying the Banking Court that it had sufficient cause for not filing the suit within the period of limitation.
12.In view of the above position of law the point of limitation, therefore, becomes a mixed question of law and facts. Reliance in this regard is placed on the judgment reported as Union Bank Ltd. through Attorney vs. Messrs B.R.R. International Modaraba and 8 others (2009 CLD 1656).
13.It is further settled law that when a suit is instituted then under Section 3 of the Limitation Act, 1908, it is mandatory upon the Court to check if the suit has been filed within the period of limitation, even though the question of limitation has not been set up as a defence. In the instant case, the learned Banking Court appears to have applied Section 3, ibid., however, at the same time it has failed to take note of the fact that the question of limitation in the appellant's suits was a mixed question of law and facts. Moreover, the provisions of Section 24(2) of the FIO made it incumbent upon the learned Banking Court to require the appellant to satisfy the Banking Court that the appellant had sufficient cause for not filing the suits within the period of limitation. No such opportunity appears to have been provided to the appellant in either of the suite. We, therefore, find that the learned Banking Court has erred in law.
14.Under the circumstances, we accept the appeals and set aside all the impugned judgments and decrees and remand the cases to the learned Banking Court No, II, Multan, for decision afresh.
The suits of the appellant shall be deemed to be pending and shall be decided, in accordance with the afore-referred law.
15.The appellant is directed to appear before the learned Banking Court No, II Multan, on 01.11.2017, without further notice. The office is directed to remit the record of the suits to the said Court, forthwith.
16.Order accordingly. There is no order as to costs.