Records have been received and perused.
2. On 22-12-1997, respondent No. 1 filed a suit wherein respondents Nos.2 to 5 and the appellant were impleaded as defendants. The said suit was filed for the recovery of Rs. 1,18,59,398.60. In para.4 of the plaint it was stated that the respondent No.2 is a registered Partnership Firm while respondents Nos.3 to 5 and the appellant are being sued as partners of the said respondent No.2 jointly and severally. It was further stated that respondent No.3 had also mortgaged his property with the respondent-bank. The details of the mortgage were stated in para.6 of the plaint. Notices were issued by the learned Banking Court in the manner prescribed. A petition for leave to defend the suit was filed which was taken up by the Banking Court on 31-3-1998. The liability was not disputed to the extent of 8.78,90,000 and accordingly an interim decree in terms of section 11 of the Banking Companies Recovery of Loans, Advances, Credits and Finances) Act, 1997 was passed. The case was adjourned for final arguments. On 22-6-1998, an application under section 12(2) read with section 151, C.P.C. Was filed with a prayer to recall the said interim decree, dated 31-3-1998. This application was dismissed by the learned Banking Court vide order, dated 11-11-1998. The matter was finally taken up on 15-1-1999 when after the adjustment of an amount of Rs. 10,000 a final decree in the sum of Rs. 1,18,59,398 was passed in favour of respondent No. 1 and against the appellant and respondents Nos.2 to 5. Against this final decree dated 15-1-1999 the said respondents Nos.2 to 5 as well as the appellant filed R.F.A. No. 411 of 1999 in this Court. This R.F.A.
Came up for hearing before a Division Bench of this Court on 8-4-1999 in the presence of the learned counsel for the parties when it was stated by the learned counsel for the said appellant that the appeal is not to be pressed but they reserve the right to agitate the matter before the Executing Court.
3. On 28-12-1999, the present appellant filed an application under section 12 of the said Act for setting aside of the judgment and decree, dated 31-3-1998 as well 15-1-1999. He stated in the application that he left the country in the year 1975 and last entered in Pakistan on 16-6-1996 and left on 22-6-1996; that on 10-12-1999 one Sajid Mehmood a cousin of his wife informed him that his house bearing No.262/2, Block-R, L.CC.H.S., Lahore was sought to be attached by some Court officials on 27-11-1999; that the house does not belong to the appellant as he had sold it to the said Sajid Mehmood in the year 1996; that he was also informed that he is a judgment-debtor in the said decree; that he was not duly served in accordance with law being a foreign national and residing out of Pakistan; that the address in the plaint was wrong; that the defendant filed leave to defend that was purported to be filed on behalf of all the defendants in the case but the Wakalatnama only bears the signatures of respondent No.3; that the profile filed by the respondent-Bank shows that the said firm has only two partners i.e. Respondents Nos.3 and 4 having 60% and 40% shares, respectively, that the Bank had not filed any partnership deed with the suit; that he had not availed any finance neither is he beneficiary of the same; that his signatures appearing on various documents are forged.
4. Respondent-Bank filed written reply stating that the petitioner had been properly served within the meaning of Order XXX, C.P.C. That the application has been filed in collusion with the other judgment-debtors; that the application is barred by time. On merits it was stated that the appellant is a partner in the respondent No.2 firm and as per the partnership deed filed by the said judgment-debtors with the respondent-Bank. Copies of the partnership deed and registration documents were annexed; that after the sanctioning of the finance facilities the documents and other securities were drawn up and completed by the said partners; that the said Property No.262/2 was attached under the orders of the Court.
5. The application was taken up by the learned Banking Court on 23-2-2001 and the same was dismissed vide the impugned order of the said date.
6. Learned counsel for the petitioner contends that his client being a foreign national residing abroad service in said prescribed mode cannot be stated to be a valid service; that his client was not a partner in the respondent No.2 firm and as such the provision of Order XXX, C.F.C. Would not be applicable. Relies on Messrs United Bank Ltd. v. Mrs. Rehmat and another 1991 M LD 1803, Messrs Habib Bank Ltd. v. Amanatullah Khan and others NLR 1986 Civil 582 and National Bank of Pakistan v.
Tradewell (Pakistan) Corporation and 2 others 1991 CLC 1243.
7. We have gone through the record with the assistance of the learned counsel for the appellant and the position emerging there from has already been stated by us above. Now the partnership deed dated 5-10-1991 is on record as Annexure "A" to the reply of the Bank accompanied by a certificate of registration and a copy of Form-I from the office of the Registrar of the Firm. Now it is not the case of the appellant in this F.A.O. Or in the arguments addressed by his counsel at the bar that he was not present in Pakistan on the said date i.e. 5-10-1991 when the partnership deed was executed and on 11-1-1992 when the said Form-I was subscribed to and filed with the Registrar.
8. The partnership deed clearly narrates that the same was entered into by the appellant and respondents Nos.3 to 5. The said Form-I states the names of the said persons as partners and is subscribed to by all of them acknowledging the correctness of the contents of the said Form-I.
There is no denial of the fact that respondent No.3 was a partner or Managing Partner of the said Firm and was duly served. Under section 7(2) of the said Act Banking Courts in all matters with respect to which the procedure has not been provided for in the said Act, has to follow the procedure laid down in the Civil Procedure Code, 1908. Order XXX, Rule 3, C.P.C. Lays down that where persons are sued as partners in the name of their firm the summons shall be served either upon any one or more of the partners or at the principal place on which the partnership is carried on within Pakistan upon any person having at the time of service, control or management of the partnership business there, as the Court may direct, and such service shall be deemed good service upon a firm so sued whether all or any of the partners are within or without Pakistan. The proviso to the said sub-rule (3) lays down that where a partnership stood dissolved to the knowledge of the plaintiff before institution of the suit, the summons shall be served upon every person within Pakistan whom it is sought to make liable. Section 25 of the Partnership Act, 1932 makes every partner liable jointly with the all other partners and also severally for all acts of the firm done while he is partner.
9. In view of the said legal provisions, to our mind, the appellant was served in the manner prescribed by law.
10. Learned counsel with reference to the said case of U.B.L. 1991 M LD 1803 argued that in view of the mode of service prescribed in section 9(3) of the said Act, 1997, the said provisions of Order XXX, C.P.C. Would. Not come into play. We are unable to agree with the said argument. His Lordship of the High Court of Sindh at Karachi while making the said observation also observed that the provisions relating to service of summons laid down. In C.P.C. Would not be applicable unless they are in consonance with or complementary to rule 8 of the Banking Companies (Recovery of Loans)
Rules, 1980. We may, however, state here that the said observations were made by his Lordship while rejecting the arguments of the learned counsel for the applicant in the said case to the effect that the provisions of the said rule 8 declaring service by any prescribed mode including publication in the newspaper to be good service are violative of Order 5, rule 20, C.P.C. In the present case the firm itself was sued and its partners were also impleaded. Service was effected admittedly on respondent No.3 and by virtue of said Order XXX, C.P.C. The service would be held good notwithstanding that the appellant was within or without Pakistan. Be that as it may, said section 9(3) of the Act, 1997 itself declares the service duly effected in any of the modes prescribed therein including the publication one in English language and one in Urdu language daily newspaper with a I wide circulation within the territorial limits of the trial Court.
11. We also find that there is allegation at all either in the application filed before the learned trial Court or in the present F.A.O. Regarding malice or collusion inter se the respondent-Bank and the said remaining judgment debitors/partners of the firm in the matter of impugned proceedings. On the other hand we find that bona fide efforts were made first to obtain leave to defend, then to challenge the interim decree and then to file R.F.A. Against the final decree in this Court. Incidentally there is no reference at all to the fact, apparent on the face of record, that the defendants in the suit including the appellant had filed the said R.F.A. No. 411 of 1999 in this Court against the said final decree, dated 15-1-1999 which is now being sought to be set aside by the appellant. The application filed on 28-12-1999 is completely silent about the said aspect of the case although para.6 thereof states that the trial Court record had been perused by or on behalf of the appellant.
We find that a certified copy of the said order, dated 8-11-1999 of this Court in R.F.A. No. 411 of 2000 issued on 27-11-1999 at pages 531 to 535 of the trial Court record. Even if it be assumed that the document was not there at the time of filing of the application. Memo. Of this F.A.O. Which has been drafted quite elaborately is also complete by silent regarding the said filing of the R.F.A. And its dismissal in the manner stated in the said order. When confronted, the learned counsel states innocently that the R.F.A. Was not filed by his client. We are unable to accept the said statement in view of the said date of affairs evident on the face of record.
12. The F.A.O. Accordingly is without any force and is dismissed in limine.