FAZAL SUBHAN, J. Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner i.e., Zarai Tariqiayati Bank Limited (hereinafter referred to as "bank") has sought indulgence of this Court and has challenged the order dated 11.05.2022 passed by the learned Judge Banking Court-1, Peshawar, whereby application of the petitioner for leave to defend the suit was dismissed.
2. Brief but relevant facts of the case are that respondent No.1 applied to the ZTBL for advancement of loan, more precisely, for installation of tube well and to secure the loan land measuring thirty two and a half Jareeb was mortgaged with the bank. The respondent No.1 was paying the amount when he received a notice of payment of Rs.15,73000/-, an amount much more excessive against the loan already received, therefore he instituted a suit for rendition of account with further prayers for permanent/mandatory injunction restraining the present petitioner from sale of the mortgaged property.
On filing the suit, the learned Banking Court issued notices to the petitioner who appeared through representative and filed application for leave to defend, which was further replied by the respondent No.1 and after hearing arguments from both sides and in view of the preliminary objection raised therein, that the application for leave to defend is time barred, the Judge Banking Court-1, Peshawar through judgment dated 11.05.2022 refused to grant leave to defend. Aggrieved from the said order, the petitioner-bank has called in question the validity of order on the grounds, inter alia, that the petitioner was not treated in accordance with law and the impugned order is against the Judgment of Superior Courts, that the order so passed is based on technicalities, whereas the Superior Courts have consistently held that matter involving valuable rights of the parties should not be defeated on mere technicalities, that case of the petitioner was fit for grant of leave to defend as huge amount of the bank was involved and that limitation being mixed question of law, requiring recording of evidence but the Court decided the issue without recording evidence on the question involved, hence, by issuing the writ, the order of the Banking Court is to be cancelled and leave may be granted to defend the suit filed by the respondent.
3. We have heard the learned counsel for the petitioner at some length and have considered the available record. He also relied on the judgment of Najam Iqbal v. Mst. Naseem Akhtar resorted in 2014 YLR Peshawar 1388(d).
4. The impugned order dated 11.05.2022 reveals that after institution of suit, the petitioner-bank was put on notice and in response Mr. Muhammad Arif, representative of the bank, with counsel, appeared. The order by itself reveals that the above named representative appeared before the Banking Court on 26.10.2020 and received copy of the plaint. Section 10 of The Financial Institutions (Recovery of Finances) Ordinance, 2001, deals with leave to defend, which is reproduced for the sake of understanding and convenience:- "S. 10 Leave to Defend. (1) In any case in which the summons has been served on the defendant as provided for in subsection (5) of section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so, the allegation of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice.
(2) The defendant shall file the application for leave to defend within thirty days of the date of first service by any one of the modes laid down subsection (5) of section 9:"
This clearly shows that after service of summons, the defendant i.e., the present petitioner, was required to file application for leave to defend within 30 days i.e., uptill 25.11.2020, however the said application was filed on 27.09.2021 i.e., after 270 days of the appearance by the representative of the petitioner. The word "shall" used in section 10(2) of the ibid Ordinance, makes it mandatory upon the party seeking leave to defend to file such application within 30 days from the date of service, for the reason that non-compliance thereof would entail punitive consequences.
Irrespective of the fact that limitation may not have been taken by a party but it is imperative upon the court to take notice of and decide the legal question such as jurisdiction and limitation etc by itself.
5. Record further shows that despite filing application for leave to defend after much delay, no application for condonation of delay was filed and at the same time no plausible or sufficient cause/reason was forwarded for such delay. It is argued before us that verbal request for condonation of delay was made at the time of arguments, but the impugned order is completely silent about any such request made at the relevant time. The judgment relied upon by the counsel for the petitioner, is irrelevant to the present case, as he failed to point out that the impugned order was void ab initio. In the case law reported in 2004 CLD 732 (Lahore), it has held that:-
(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)-- - S. 10---Leave to defend---Defendant was served on 04-02-1998, but leave application was filed on 24-04-1998---No application to condone delay in filing leave application was filed---Leave application was time-barred."
6. Thus from the above discussion, we have come to an irresistible conclusion that application filed by the petitioner was hit by limitation and therefore leave to defend was rightly refused, and as the impugned order was patently and legally correct, hence cannot be interfered with through writ jurisdiction.