QAISER RASHID KHAN, J.---Through the appeal in hand, the appellant has called in question the judgment and order dated 15.2.2012 of the learned Judge Banking Court-II, Peshawar , whereby his application for setting aside the ex parte decree dated 31.1.201 1 was dismissed.
2. As per facts gathered from the record, the respondent/Bank filed a recovery suit for a sum of Rs.9,30,212/- against the appellant before the learned Banking Court, Peshawar and on account of non-appearance of the appellant, the suit was decreed ex parte on 31.1.201 1, whereafter the appellant submitted an application for setting aside of the ex parte decree which was dismissed through the impugned judgment and order dated 15.2.2012 and that is how the appellant has preferred the instant appeal.
3. The learned counsel for the appellant contends that the appellant was not served in accordance with law, and more so the two dailies whereby he was alleged to have been served do not enjoy wide circulation and not only the suit was decreed ex parte but thereafter the follow up execution proceedings before the learned Judge Banking Court culminated into the auction of his valuable agricultural property measuring 43 Kanals and 4 Marlas for a paltry sum of Rs.8 lac and that is how, on one hand, the appellant was not afforded with any opportunity to defend his stance before the learned Judge Banking Court by filing a formal leave to defend application while on the other , he was burdened with the decretal amount and also deprived during the course of execution proceedings of his agricultural property whose market value is much higher .
4. The respondent No.2 states that he does not want to engage a counsel and would rely on the arguments of the learned counsel for the respondent-bank.
5. The learned counsel for the respondent/Bank on his turn defended the impugned judgment and decree of the learned Judge Banking Court and contended that the appellant was duly served in accordance with law and procedure but he wilfully absented himself and resultantly , the learned Judge Banking Court was left with no choice but to pass an ex parte decree in favour of the Bank.
6. Arguments heard and the available record perused.
7. During the course of arguments of the learned counsel for the parties, our attention was drawn to the very statement of account as available on the record of the banking court which reveals that the same has not been certified as per section 4 of the Bankers' Books Evidence Act, 1891. At this stage, it would be more apt to refer to section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which is reproduced as under:- "9. Procedure of Banking Courts. -
(1) Where a customer Or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer , may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise.
(2) The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Banker Books Evidence Act, 1891 (XVII of 1891) and other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in suf ficient numbers so that there is one set of copies for each defendant and one extra copy .
(3) xxxxxxxxxxxx
(4) xxxxxxxxxxxx
(5) xxxxxxxxxxxxx"
In the case of the respondent/Bank, they have failed to show compliance to this specific mandate of law as per section 9(2) of the Ordinance ibid. No doubt where a defendant despite being served through publication in two Dailies and his personal service leaves little space and room for the trial court not to proceed ex parte against him in accordance with law but simultaneously , a heavy duty is cast upon the court as well.
In this case, it was the bounden duty of the learned Banking Court to have looked at the documents so annexed with the plaint and especially the statement of account which contains debit and credit entries and if the same is not certified under the Bankers Books Eviden ce Act, 1891, then it loses its evidentiary value. However , still the learned Banking Court passed an ex parte decree in favour of the respondent/bank against the appellant on the strength of such uncertified statement of account.
8. Keeping in view the over all aspects of the case, we hereby allow this appeal, set aside the impugned judgment and order dated 15.2.2012 whereby application of the appellant for setting aside the ex parte decree was dismissed and also the ex parte decree as passed by the learned Judge Banking Court on 31.1.201 1. The subsequent auction proceedings as conducted by the learned Judge Banking Cour t during the course of execution proceedings are also accordingly set aside and the case is remanded to the learned banking Court to proceed in the matter in accordance with law .
9. Whereas the appellant may file his application for leave to defend the suit within 21 days before the learned Judge Banking Court-II, Peshawar , simultaneously , the respondent-bank may also file a proper statement of account duly certified under the Bankers Books Evidence Act, 1891, containing all the debit and credit entries right from the availment of finance facility by the appellant/defendant till the filing of the recovery suit by the respondent- bank.
However , the conduct of the appellant cannot be condoned whereby he absented himself from the court proceedings and thus a cost of Rs.30000/- is imposed on him to be deposited with the Nazir of this Court for onward deposit in the government exchequer , the receipt whereof shall be presented to the learned Judge Banking Court seized of the matter . The parties are directed to appear before the trial court on 2nd November , 2017.