SYED ABDUR REHMANJ.-This is a suit for recovery of Rs.10,226,146.48 (equivalent to UAE Dhs.2,147,628.21) on Foreign judgment with the alternative prayer for recovery of Rs.8,594,496.83 (equivalent to UAE Dhs. 1,507,356.90) under the Banking Companies (Recovery of Loans)
Ordinance,1979.
2. Defendant No.1 opened an account with the plaintiff bank on 25-5- 1974. Defendants No.2 to 10 are his partners. At the request of the Defendants the plaintiff granted Overdraft facilities to them which were utilised by the Defendants from time to time. On failure of the Defendants to pay the out standing amount of the bank it filed Civil Suit No. 437 of 1988 in Dubai against Defendants No.2 to 10 on 1-5-1988 for recovery of a sum of Dhs.2,147,628.21 equivalent to Pak. Rs. 10,226,146.48 which comprises of their outstanding ducs. The suit was decreed for the above amount plus interest @ 9 % per annum from the date of filing of the suit till full settlement alongwith fees and costs. The Defendants have failed to satisfy that judgment and decree. Hence this suit.
3. Summons Were issued to the Defendants by Bail iff,Registered Post A/D as well as publication.
First publication was defective in that the name of this court did not find place therein. Second Publication was made on 17-10-89 which was valid in all respects. The summons sent through Bailiff were refused as is apparent from endorsement dated 29-10-1989 and therefore, the copies of the summons were pasted at the premises of the Defendants. The summons sent by Registered Post on the add-premises of the Defendants supplied by them to the Bank has returned with the endorsement that no person of the name mentioned in the registered letter is available at the given address.
4. No application for leave to defend has been made within the prescribed period, nor any one of the Defendants has appeared before the Court. Mr. Sajid Zahid Advocate for the plaintiff has submitted that in these circumstances the plaintiff is entitled to a decree outright under Order-37 Rule 2 C.P.C.An office objection has been raised wherein it has been pointed out that this suit should be treated as a suit on foreign judgment under Section- 13 read with Section- 20 CP.C and not a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979, as the loan involved therein was taken outside Pakistan and the entire cause of action had accrued within the jurisdiction of a Court at Dubai.
5. In view of the fact that the defendants, after having been served with the summons by Bailiff, Registered post and publication have chosen;(l).Not to appear on the dates mentioned in the publication, i.e. 30.10.1989, and the summons by Bailiff and the summons by registered post A/D,have become exparte, and (2) by not having filed an application for leave to defend within 10 days of the above service have become liable to a decree under Order XXXVII Rule 2 CPC. However, since the office objection have been raised, it will not be out of place to mention that upon obtaining a foreign judgment three courses are open to the Decree Holder i.e.(l) that he can obtain execution of the foreign judgment by proceeding under Section 44-A of CPC,if the country from which the decree has been obtained is United Kingdom or any reciprocating territory and in that case he can outright obtain execution of that decree from the District Court of concerned District of Pakistan, and that he need not file a suit even and need not go through the procedure prescribed for the trial of the suit;(2) that he can file a suit in Pakistan on the basis of the foreign judgment treating it as the cause of action. In that case if the conditions prescribed in Section 13 C.P.C are fulfilled, the judgment is conclusive between the parties and otherwise it is res judicata between them and as such courts in Pakistan are bound by its finding. Such suit however, is to be filed within the period of six years from the date of that judgment as provided under Article 117 of the Limitation Act, or (3) that he can file a suit on the original cause of action as it does n6t come to an end after passing of a foreign judgment, but remains intact until and unless that foreign judgment is satisfied. However, if the conditions mentioned in section 13 are not satisfied, then the decree will be open to collateral attack in Pakistan. In view of Section 1 (3) readwith Section 2(a) of Banking Companies (Recovery of Loans) ordinance, 1979 the provisions of the said Ordinance are applicable to the plaintiff Bank. There is nothing in Section 13 CPC which has the effect of excluding the provisions of the above Ordinance to a suit on foreign judgment-in this suit the plaintiff has chosen to adopt the last mentioned two courses i.e. He has filed a suit on the basis of foreign judgment treating it as a cause of action and has also based/pressed the suit on the original cause of action which he could have done under the law. I, therefore do not find any illegality in the form of the present suit. The defendants having chosen to remain absent on 30.10.1989 and continuously thereafter upto this date, have made themselves liable to a decree both under the Banking Companies (Recovery 6f Loans) Ordinance, 1979/ order 37 Rule 2 C.P.C., as well as under Order IX Rule 6 C.P.C.Hence I decree the plaintiffs suit for a sum of Rs.10,226,146.48 equivalent to UAS Dhs.2,147,628.21 against all the defendant jointly and severally. I also allow interest @ 9 % per annum with quarterly rests from the date of the foreign Judgment referred to above till the payment of decretal amount. The costs of the suit shall also be borne by the Defendants.