ROZI KHAN BARRECH, J.---This High Court Appeal, under section 22 of Financial Institution (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), filed against the judgment and decree dated 15.12.2017 ("the impugned Judgment ") passed by the learned Judge Banking Court, Balochistan, Quetta, ("the trial court ") whereby the learned trial court decreed the suit in favour of the respondent/bank.
2. Brief facts for the disposal of this appeal are that the respondent/bank, filed suit against the appellants for recovery of the sum of Rs.8,76,698/-. The appellants appeared and filed an application under section 10 of the Ordinance for grant of leave to defend the suit. The said petition for leave to appear and defend the suit was dismissed, and resultantly the suit was decreed by the learned trial court vide impugned judgment and decree dated 15.12.2017 to the tune of Rs.8,76,698/- in favour of the respondent/bank against the appellants jointly and severally with costs along with costs of funds to be determined under sections 3 and 17 of the Ordinance. Hence this appeal.
3. We have heard the learned counsel for the appellants and also perused the entire record with his able assistance.
4. The appellants in their petition for leave to defend partly admitted the availing of the financial facility from the bank but the petition for leave to defend of the appellants is not as per section 10 of the Ordinance. According to section 10 of the Ordinance, the appellants was required to specifically mention the amount of finance availed by them. from the respondent/bank, the amounts paid by them to the respondent and the dates of payments as well as the amount of finance and other amounts relating to the finance payable by them to the respondent up to the date of institution of the suit. But the said application reveals -that the appellants have neither mentioned anything in this regard nor extended any sufficient cause for their inability to comply with such requirement rather made vague averments, simply denying the claim of the respondent.
5. Under the above circumstances we feel no hesitation to hold that the appellants have not fulfilled the requirement of section 10 of the Ordinance, as such, the same has rightly been rejected.
6. Even otherwise, the appellants filed leave to defend application on 20.11.2017 after lapse of nine (09) months which was also barred by time.
7. The respondent/bank apprehended the agreement of financing demand, promissory note, statement of accounts, pass book with the suit and these documents could not be rebutted by the appellant through any evidence, rather they admitted the availing of the finance facility . There is no docum ent produced by the appellants that may show any repayment of the amount due against the availed facility from the bank. When confronted as to whether the appellants/defendants have fulfilled the mandatory requirements of section 10(4) and (5) of the Ordinance, the learned counsel for the appellants remained unable to satisfy this court. In view of the above backdrop, the learned Judge Banking Court has rightly passed the impugned judgment and decree while invoking the jurisdiction as envisaged in the penal clause of subsection (6) of section 10 of the Ordinance ibid and dismissed the petition for leave to defend.
8. The appeal filed by the appellants before this court is also barred by time. It reveals that the appellants filed the instant appeal on 20.02.2018 i.e. two months and five days after passing of the impugned judgment dated 15.12.2017. However , the appellant has also filed an application under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing of the appeal on the ground that "father of the appellant died during this period hence the appellant could not contact his counsel to file the instant appeal". He, therefore, prays that the delay in filing appeal may be condoned.
9. The remedy of appeal against the judgment and decree, passed by the Bank ing Court, in a suit, is provided under section 22 of the Ordinance provided a period of thirty days for filing of the appeal by any person aggrieved by any judgment and, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
10. Section 29 of the Act, which is the relevant provision of law regarding applica bility of certain provisions of the Act, when a special law or statute itself provides period of Limitation for filing any suit, appeal or application, so as to appreciate, if the provisions of section 5 of the Act, would be applicable to the case in hand:- "29. Savings (1) Nothing in this Act shall af fect section 25 of the Contract Act, 1872 (IX of 1872).
(2) Where any special or local law prescr ibes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply , as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law---
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply".
A bare reading of the above provisions of law, reveals that for the purpose of determining period of Limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 of the Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; section 29(2)(b), provides that the remaining provisions of the Act, shall not apply .
11. In view of the above, we are of the considered opinion that the provisions of section 5 of the Act, are not applicable to the appeal filed under section 22 of the Ordinance as the Ordinanc e, which is a special law, itself provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order , passed by the Banking court. Reference can be made to the case of Allah Dino and another v.
Muhammad Shah and others (2001 SCMR 286 ), wherein the Hon'ble Supreme Court observed as under:- 5......... where the law under which proceedings have been launched prescribes itself a period of limitation then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act.........."
12. Moreover , from a perusal of the certified copies of the impugned judgment and decree annexed with the appeal, it would be seen that the impugned judgment were delivered to the appellants on 29.12.2017 but the instant appeal was filed on 20.02.2018 which is barred by time. Furthermore, the ground taken by the appellants in the application filed for condonation of delay that father of the appellants died during this period, hence the appellants could not contacted his counsel for filing the appeal is patently absurd and misconceived, as the appellants had filed the instant appeal after one month and twenty two days of receiving the certified copies of the impugned judgment and decree. Moreover , such an assertion of the appellants could hardly be a ground for the appellant to seek condonation of delay in filing of appeal even in a case attracting provisions of section 5 of the Act as the delay of each and :every day with justification was to be explained in such a case in view of well settled law, what to say about the case one in hand in which the provisions of section 5 of the Act, are inapplicable as discussed by us in para supra.
In view of what has been discussed above, we are of the considered view that the instant application bearing C.M.A. No.(S) 144 of 2017 under section 5 of the Act, being not maintainable is liable to be dismissed and resultantly the instant appeal being time barred also deserves to be dismissed.