JAVED IQBAL, J.--- This is an appeal preferred on behalf of Mir Taj Muhammad Khan Jamali under section 21 of Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1997 against the order, dated 4-12-1997 passed by Banking Court, Baluchistan, Quetta, whereby application under section 12(2), C.P.C. Has been dismissed.
2. Briefly stated the facts of the case are that loan facility was extended after completion of all necessary formalities and execution of various documents; such as Agreement, dated 8-5-1990, Demand Promissory Note for Sum of Rs.71,10,000 alongwith letter of continuity and letter of revival, dated 8-5-1990, Hypothecation of Agreement, dated 8-5-1990, Memorandum, dated 8-5-1990 of deposit of title deeds of Plot No.D-76, measuring 1250 sq. Meters situated at Hub Industrial Trading Estate, General Power of Attorney, Mortgage Deed, dated 8-5-1990 executed in favour of Region Development Finance Corporation, Deed of floating charge, dated 8-5-1990, and letter of Guarantee by Regional Development Finance Corporation, on 22-12-1988 amounting to Rs.72,00,872 at the request of appellant Mir Taj Muhammad Khan Jamali and others. The repayment of liability was agreed to be paid by the appellant in 10 six monthly instalments commencing from 1-7-1991 till its final adjustment on 31-12-1995 but the appellant failed to pay even a single instalment and resultantly a suit was filed for recovery of a sum of Rs.72,00,872 as principle with mark-up and Central Excise duty plus Rs.8,00,000 as Liquidated Damages and mark- up at the rate of 55 Paisa per thousand per day from the date of filing the suit till the date of decree and from the date of decree till the realization of decretal amount alongwith sale of mortgaged property with costs of the suit. The appellant alongwith other were served through notices on 31-12- 1994 but the reply could not be filed within stipulated period of 10 days and resultantly they were proceeded with ex parte on 12-2-1995. After recording ex parte evidence (EXh.P.I to Exh.P.15) suit was decreed vide judgment/decree, dated 30-4-1995 against the appellant and other defendants jointly and severally alongwith mark--up from the date of filing of the suit till realization of whole, decretal amount with liquidated damages at agreed rate. Being aggrieved an appeal was filed by Mr Taj Muhammad Khan Jamali (Civil Appeal No.29 of 1995) with the following prayer:------ "It is, therefore, respectfully prayed that the record of lower Court may kindly be called for and after perusal of same impugned ex parte order dated 15-2-1995 and ex parte judgment and decree, dated 30-4-1995 may kindly be declared as illegal and the same may kindly be set aside. It is further prayed that the case may kindly be remanded back to the Trial Court and the appellant may kindly be allowed to defend the case in a proper manner and this Honourable Court may kindly further be pleased to grant leave to appellant to appear and defend the suit before the learned Trial Court as provided under Banking Laws in the interest of justice, fair-play and equity."
The said appeal was dismissed vide order, dated 22-11-1995 by this Court which is reproduced hereinbelow for ready reference:------ "22-11-1995. Case called several times. Noire appeared. Appeal is dismissed for default and non- prosecution.
(Sd.) Munawar Ahmed Mirza, Chief Justice.
(Sd.) Iftikhar Muhammad Chaudhary, Judge."
Execution application was filed by the Regional Development Finance Corporation (decree-holder) on 25-7-1997 which was decided on 4-12-1997 and following order was passed:----- "Mr. Iftikhar Jugezai present of D.H. Application of J.D. No.4 under section 12(2), C.P.C. Dismissed vide separate order. Mr. Abdul Sattar, Advocate present for J.D. No.2. Defendant No.2 has not appeared without any reason as justification whereas his warrant of arrest has been returned unserved. The J.D. No.2 through his counsel has prayed for getting the attached property evaluated from Nespak and thereafter be auctioned. This request not being according to law cannot be allowed as after evaluation property cannot be forced to be purchased at auction as per valuation, application rejected. Property of J.D. At Hub could not be auctioned due to shortage of time. As per request the attached property of J.D. At Hub be auctioned through A.C., Hub report of same be submitted on 30-12-1997. Warrant of arrest of J.D. Be also issued for the above date.
(Sd.)
Judge, Banking Court, Quetta.
" The appellant thereafter, moved an application under section 12(2), C.P.C. Before the Banking Court, Quetta, which was dismissed vide order, dated 4-12-1997. Being aggrieved this appeal has been filed with the prayer that order, dated 4-12-1997 passed by Banking Court, Quetta, may be set aside and the application under section 12(2), C.P.C. Be allowed or in the alternate the case may be remanded to the Trial Court with direction to dispose of the application under section 12(2), C.P.C.
After providing opportunity of leading evidence and hearing in the interest of justice.
3. Heard Mr. H. Shakeel Ahmed, Advocate on behalf of appellant at length 4. We have carefully examined the respective contention as adduced on behalf of appellant in the light of record of the case and relevant Provisions of law. We have minutely perused the impugned order passed by learned Banking Court, Quetta. It is worth while to mention here that previously a Civil Appeal No.29 of 1995 was filed by Mir Taj Muhammad Khan Jamali which was dismissed by this Court on 22-11- 1995 for default and non-prosecution. It is to be noted that no effort whatsoever was made to get it restored, and therefore, the present appeal would not be competent and the appellant cannot be permitted to awake from deep slumber after a lapse of about 3 years. The application under section 12(2), C.P.C. Was moved by the appellant when the warrant of arrest was issued for the execution of the decree by the Court concerned. A comparative study of the previous Appeal (No.29 of 1995) and the present one would indicate that contradictory and different pleas have been agitated in both the appeals. In previous appeal it was stated with firmness that appellant had no concern whatsoever with the loan facility extended by R.D.F.C. But in the appeal in hand it has been admitted that he remained as Director of the Messrs Chemfield (Pvt.) Ltd. But subsequently tendered resignation which was accepted. It is difficult to reconcile the contradictory pleas as mentioned hereinabove which indicates that this Court has not been approached with clean hands and abortive attempt has been trade to suppress the facts. We are conscious of the principle that the Court should lean in favour of adjudication of causes on merits which appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands. The record of previous litigation further reflects that the conduct of appellant throughout tine course of previous proceedings demonstrated his propensity to avoid the legal proceedings initiated before a competent forum. The said objectionable conduct finds further support from the fact that no action whatsoever was initiated when the first appeal filed on the same subject was dismissed by this Court on 22-11-1995 in default and non-prosecution. It is mainly agitated before the learned Banking Court that the forged signatures of appellant were made on different documents. This aspect of the matter was fully within the knowledge of appellant when legal proceedings were initiated against him but no action whatsoever was taken against the persons by whom allegedly fraud was committed. The appellant remained mum and after lapse of considerable period he moved an application for registration of case in this regard to Deputy Inspector-General of Police, Quetta Range, Quetta on 1-9-1997 after issuance of his warrants and when legal proceedings were initiated and finalized against him. It is worthwhile to mention here that no explanation whatsoever has been furnished in this regard. Let we make it clear here at this juncture that pre--admission notice in R.F.A. No.29 of 1995 was issued on 5-10-1995 by this Court and the appellant was fully aware regarding the alleged forged signature/fraud but even then no action was taken for the redressal of his grievances regarding commission of fraud on his behalf. In so far as the plea of difference in between signatures on various documents is concerned that seems to W devoid of merits and has rightly been discarded by the learned Banking Court after in depth scrutiny of entire documents. We have also examined the signatures made by the appellant on different documents and it can be observed with naked eye that there is hardly any difference in between the signatures of appellant on-the Memorandum of Association and Articles of association. We have further observed that there is no difference in between the signatures of appellant made on letter of guarantee and on the application filed under -section 12(2), C.P.C. Filed before the learned Banking Court. In view of abovementioned discussion it can be inferred safely that appellant cannot be absolved from his responsibility merely on the ground of difference in his signature made on certain documents and on this score the amount which runs in to millions cannot be waived of. We have not been pursuaded to agree with Mr. H. Shakeel Ahmed, Advocate that it was incumbent upon the learned Banking Court to have framed the issues on application moved on behalf of appellant under section 12(2), C.P.C. For the reasons that it was discretionary for the Trial Court to proceed with the application as may be deemed fit and proper and framing of issues is not a mandatory pm-requisite. The discretion as conferred upon the learned Banking Court has been exercised judiciously and in accordance with settled norms of justice and on the basis of record.
5. We are conscious of the fact that "law should lean in favour of adjudication of causes on merits but this principle cannot be allowed to be exploited by litigant by keeping the proceedings in abeyance through hide and seek measure and then to turn around when an order has been passed against them to seek reversal thereof and further prolonged the proceedings". An ex parte judgment/decree was passed against appellant on 30-4-1995 by learned-- Banking Court which was challenged before this. Court by means of R.F.A. No.29 of 1995 which was dismissed in default on 22-11-1995 and no action whatsoever was taken thereafter by the' appellant who cannot be allowed at this belated stage to frustrate the object of judgment/decree passed against him. It is well-entrenched legal provisions that "the provisions of section 12(2), C.P.C. Is not intended to be a duplication of the proceedings provided for in Rule 13, Order 9, C.P.C. Therefore, where petitioner who had failed in proceeding for setting aside ex parte decree moved an application under section 12(2), C.P.C. With a similar prayer claiming that decree was fraudulently obtained. Application could not be granted". 1987 SCM R 1440.
6. In the light of what has been stated above, we are not inclined to admit this appeal which is dismissed in limine.