' WALI MUHAMMAD KHAN, J.--This is an appeal against the judgment, dated 20-12-19.81 passed by the Special Judge (Banking Companies) N.-W.F.P. Peshawar whereby, he dismissed the suit of the plaintiff/appellant (Industrial Development Bank of Pakistan) against Al-Mansoor Limited and others defendants/respondents for the recovery of Rs,20,57,546.18 under the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) (hereinafter to be called as the Ordinance).
2. The background of the case culminating in the impugned judgment is, that a loan of DM 701,300.00 was entrusted to respondents Nos. 1 to 6 by the plaintiff/appellant to enable them to set up a wheat Milling Plant at Gulbahar Colony, Peshawar against the Bank Guarantee furnished by respondent-7 covering the entire amount of loan with interest. Additionally, the machinery to be imported under the loan was also made subject to the charge of loan and personal guarantees were also furnished by the respondents as Directors of the Company. The repayment of the loan was agreed to be made in accordance with the repayment schedule available on page 41 of the Printed Book according to which the repayment was to be made in 18 instalments, the last falling due on 30-6-1976. A credit agreement, copy Exh. P.W.1/1 was duly executed between the parties on 28th of March, 1966. The respondents Nos.1 to 6 defaulted in the payment of the Instalments according to the terms and conditions of the agreement and thus obliged the plaintiff/appellant to file the instant application for the recovery of the suit amount, which according to the accounts maintained by the plaintiff/appellant, was due on 26-4-1980, as per statement of account in the form of a certificate issued by the Chief Manager of the plaintiff/appellant's Bank (page 40 of the Printed Book). The respondent No,7, the guarantor (U.B.L.) was also impleaded, as it had also failed to meet its commitment towards the plaintiff/appellant. The defendants/respondents Nos.2 and 4 to 7 contested the application and in their written statements raised several pleas, both technical and factual, which necessitated the framing of 13 issues in the case but for the purpose of the instant appeal issues Nos. 2, 4, 8, 10 and 11 are relevant because the other issues have been decided in favour of the plaintiff/appellant. Iri view of his finding on the aforementioned issues, the learned Special Judge dismissed the suit of the plaintiff/appellant with costs. Hence the instant appeal.
3. We have heard learned counsel for the parties for sufficient length of time and have gone through the record of the case with their assistance.
4. Learned counsel for the appellant emphatically contended that the learned Special Judge had failed to comply with the provisions of Order 37 Rule 2, C.P.C. Inasmuch as no special summons in Form No,4 in Appendix B were issued to the defendants/respondents nor the defendants/respondents obtained leave from him to appear and defend the suit with the consequence that the entire proceedings conducted thereafter by the learned Special Judge were without jurisdiction. He also stressed. That in the absence of the requisite leave, the allegations contained in the plaint were deemed to be admitted and the plaintiffs entitled to decree in view of the clear provisions of subsection (2) of rule 2 of Order 37, C.P.C. Learned counsel for the respondents on the other hand controvered submissions of the learned counsel for the appellant and argued that the instant suit had initially been presented to Mr. Muhammad Alam, Judge and after the enforcement of the Banking Companies (Recovery of Loans) Ordinance, 1979, the same was transferred to the learned Special Judge for disposal. He also submitted that the notices had already been issued by the original Court and fresh notices were nct necessitated. Additionally, he contended that the appellant for reasons best known to him, submitted application to the Banking Judge and not plaint as required under Order 37, rule 2, C.P.C.
5. These allegations and counter-allegations have been exhaustively dealt' with, by the learned Special Judge in his impugned judgmept. He has, while giving his decision on issue No,2, held that the application filed by the appellant contains all the necessary ingredients .Of a plaint as required under the provisions of Order 7 rule 1, C.P.C. With the only exception that instead of 'plaint/suit' the word applicatidn' is substituted and for the words 'plaintiff and defendant' the words 'petitioner and respondent' are incorporated. He has treated this application as a plaint/suit and has ignored the technical objection raised by the defendants/respondents. Learned counsel for the appellant, however, relying on the case Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking (II), Lahore and another, reported as PLD 1982 Lah. 92 submitted that in spite of the case having come on transfer to him from another Court, the issue of special summons by the Special Judge and the application of the defendants/respondents for seeking leave to defend, was a must. The appellant did not raise this objection before the learned Special Judge and allowed the case to proceed on.
The defendants/respondents A filed their written statements, whereupon the issues were framed and the evidence of the plaintiff/appellant recorded. Their silene all along clearly amounted to their acquiescing in the procedure adopted by the learned Specil Judge and the appellant is now estopped to !Agitate this technical objection at the appellant stage, particularly when grave lapses on their part have been condoned by the learned Special Judge. We have considered the Single Bench Authority of the Lahore High Court referred to above and are of the view that the same is distinguishable. According to the facts of the said case, the learned Special Judge had passed the summary order permitting the defendants in that case to defend the suit on depositing the suit amount which order was challenged by the defendants in that case before the High Court. The defendants therein were aggrieved with the order of deposit of the suit amount therein and the learned Single Judge of the High Court, finding the order impugned before him, as without lawful authority, set aside the same and directed the Special Judge to apply his mind to the legal and factual aspects of the matter and to decide the suit in accordance with law. No direction was made to the Special Judge to follow the procedure of Order 37, rule 2, C.P.C. And thereafter to proceed with the suit. We are, therefore, of the considered opinion that there has been no mis carriage of justice in the disposal of the instant suit on merit and consequently repel the objection raised by the learned counsel for the plaintiff/appellant.
6. Be that as it may, even if the defence set up is ignored, even then there is an insurmountable hurdle in the way of the plaintiff/appellant. As stated in the earlier part of this judgment, the last instalment fell due on 30-6-1976 and under Article 64-A of the. Limitation Act the appellant was required to institute a suit for the recovery of the suit amount within three years thereof. The `instant suit having been filed on 30-7-1980 was hopelessly barred by Needless to mention that under section 3 of the Limitation Act it is the primarrtity of the Court to see at the time of the institution of the suit that t e same is within the statutory period of limitation and if it finds the same as barred by time it has to dismiss the same. On the allegations contained in the plaint as well as the documents annexed thereto, the right to sue for the recovery of the suit amount accrued to the plaintiff/appellant on 30-6-1976 and there was no prayer for condonation or exemption of the delay under any of the provisions of the Limitation Act in the plaint and consequently the suit could not proceed on this score as well. The finding of the learned Special Judge on the issue of limitation is unexceptionable and is maintained.
7. As regards the merits of the case, suffice it to say that the appellant did not produce any evidence worth the name to justify their claim for the recovery of the suit amount. No proper and regular statement of account was produced by the plaintiff/appellant showing the respective entries regarding the exchange rates and the rates of conversion of foreign currency into Pakistani one and the payments already made by the defendants/respondents from time to time. The defendants/respondents had challenged the correctness of the accounts maintained by the plaintiff/appellant and consequently it was obgligatory upon them to produce tfie certified copies of the entries of their books of accounts. In this respect section 4 of the Bankers' Books Evidence Act, 1891 is relevant which is reproduced hereunder: - "4. Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted asevidence of the matters, transactions and accounts therein recorded every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise."
7. The above provisions of law make it clear that only certified copies of the entries of books of accounts honestly, and correctly made, can be received as prima facie evidence, of the existence of such entry without the production of the original, but once its authenticity and correctness is disouted, as in the present case, the bank is not absolved from proving the said entries and have to prove the entries of the Banker's Books according to law of evidence. In the instant case, the plaintiff/appellant has failed to produce the certified copies from their books on which they relied, in compliance with the mandatory provisions of Order VII rule 14 and Order XIII rule 1, C.P.C. Or at the time of filing of list of witnesses under Order XVI rule 1, C.P.C. The certificate issued by the Manager of the plaintiff/appellant Bank does not fall within the provisions of section 4 of 'the Bankers' Books Evidence Act, 1891 and no presumption can be legally attached to it. 'The plaintiff/appellant did not produce any evidence except the solitary statement of Muhammad Tariq their Law Officer (P.W.1) who too Showed ignorance about relevant facts connected with the suit in hand. In this view of the matter this was a case of no evidence and the learned Seecial Judge, in the circumstances had no other option but to decline the prayer of the appellant.
8. The upshot of the above discussion is that there is no merit in the instant appeal, and the same is hereby dismissed.