AYESHA A. MALIK, J. --- This FAO is filed against order dated 24.5.2011 passed by the learned Judge Banking Court I, Gujranwala (Camp at Sialkcp.
2. The basic contention of the Appellant is that he obtained loan in the year 1998 for the purchase of fertilizers and a tractor. During this time, the Appellant paid amount of Rs. 25,000/- and is in default of Rs. 16,000/- which is admittedly outstanding against the Appellant even today. The Appellant was not aware of the suit filed by the Respondent Bank until July 2007 when on account of some ghunda elements who came to take possession of the property, the Appellant was informed that a decree has been passed against him and that execution proceedings were underway. The Appellant immediately approached the Banking Court and filed an application to set aside ex parte judgment and decree dated 28.11.2000 alongwith application under Section 12(2), Code of Civil. Procedure, 1908 ("CPC").
3. The grievance of the Appellant is that he had no knowledge of the suit which was filed nor was he served with any notice. The Banking Court heard both the applications and dismissed the same vide the impugned order dated 24.5.2011 on account of the fact that the Appellant was unable to justify the inordinate delay of seven years in filing the application and was unable to justify his date of knowledge. In terms of the impugned order dated 24.5.2011, the first application was filed on 31.7.2007 and the second application was filed on 30.8.2007. In the first application, the Appellant contends that his date of knowledge was two days before filing the application and in the second application under Section 12(2), CPC, he contends that his date of knowledge is in the second week of July, 2007. The learned Banking Court found this stance to be contradictory and also stated that the judgment and decree was passed on 28.11.2000 whereas both the applications were filed in July 2007 seven years later.
4. So far as the Appellant's contention with respect to service, the learned Banking Court found that since the Appellant does not dispute the address, he was appropriately served as all four modes of services were executed and further that even for the purposes of execution proceedings, he was served under Order XXI, Rule 66, CPC through his cousin being son of his maternal uncle.
5. We have heard the counsel and find that no illegality is made out in the impugned order. The Appellant does not deny availing of the loan facility and the default. His basic contention is that he had no knowledge of the suit filed by the Respondent Bank nor was he aware of the execution proceedings. In terms of Section 12, of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO"), the Appellant may within twenty-one days of the date of the decree or where the summons were not properly served when he has knowledge of the decree, apply to the Banking Court in order to have the ex parte decree set aside. In the first application, the Appellant stated that his date of knowledge was two days before filing the application on 31.7.2007 and in the second application dated 30.8.2007 under Section 12(2), CPC, he stated that his date of knowledge is in the second week of July, 2007. Both applications therefore differ on the date of knowledge.
Hence the learned Banking Court rightly found that there are contradictions in the stance of the Appellant with respect to date of knowledge. Even today the Appellant is unable to explain his date and point of knowledge. As to the issue of service admittedly there is no dispute with respect to the address for service of the Appellant. Appellant was served through all the four prescribed modes on the address available with the Respondent Bank. The grievance of the Appellant with respect to the proclamation in the Urdu paper Kehkashan is without any merit, as he does not deny the other modes of service in the execution petition. Further that the Appellant filed both the applications in July 2007 for setting aside the judgment and decree passed on 28.11.2000 being seven years later.
Property was auctioned on 6.6.2001 and sale certificate was issued on 30.4.2003. Even therein the Appellant contended that he has no knowledge of the proceedings. The Appellant has also failed to show the alleged fraudulent manner in which the Bank kept the Appellant out of the proceedings.
6. Under the circumstances, no case for interference is made out, hence the instant appeal is dismissed and impugned order dated 24.5.2011 passed by the learned Judge Banking Court I, Gujranwala (Camp at Sialkot) is maintained.