1. ' The 1st application, C.M.A., No,1434 of 1998, appears to have been filed on 21-2-1998 seeking leave to defend the proceedings under section 10 of Act XV of 1997. The application listed at Serial No, 2, C.M.A. No, 1778 of 1998, is presented on 4-3-1998 for condonation of delay, if any, in filing the application for leave to defend. The application for condonation of delay listed at Serial No,2 is to be considered first.
2. ' Mr. Rizwan Ahmad Siddiqui, appearing for the defendants-Bank, has referred to the provisions contained in section 10 of the Act XV of 1997 and contends that service of summons through publication in the newspapers daily "Nawa-e-Waqt" on 25-1-1998 and Daily "Dawn" on 27-1-1998 never came to the knowledge of the defendant who came to know about institution of the present proceedings for the first time on 18-2-1998 when the summons were served by the Bailiff. According to the learned counsel, the defendant moved quite swiftly in applying for leave to defend on 22-2- 1998. Reference has been made to the affidavit of one Muhammad Salman Khan, attorney of the defendant-Bank, wherein it is averred that knowledge about institution of the proceedings was gained on 18-2-1998 when summons were served by the Bailiff. The explanation about the episode is contained in paragraphs 3, 4 and 5 of the affidavit which is as follows:-- "3. That I say that the summon of the above case which was issued from the office of this Hon'ble Court on 24-1-1998 was served upon the Bank on 18-2-1998 and soon on receipt of the summon on 18-2-1998 we came to know about the above suit and I filed applications under section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 on 21-2-1998 and prior to this knowledge I have no knowledge about the institution of this case.
4. That I say that I or any of the authorised officer of the Bank relating to this suit matter had no knowledge about the institution of this case.
5. That I say that I have no knowledge about the publication of notice in the daily newspapers which appeared on different dates and the same was communicated to me by my advocate Mr. Rizwan Ahmed Siddiqui on 21-2-1998, and for the best interest of the Bank, I file this affidavit and application under section 5 of the Limitation Act for the delay in filing leave to defend application.
3. Though the application is in time from date of knowledge of this suit and also from the date of service through Bailiff."
4. ' On the basis of the above averments, the learned counsel has urged that the defendant is entitled to condonation of delay in terms of section 10 of Act XV of 1997. Reliance in this behalf has been placed on judgment of a Division Bench of this Court in Messrs Wahid Ice and Cold Storage Plant v.
5. National Bank of Pakistan (PLD 1996 Kar. 529) and a Division Bench judgment of the Lahore High Court in Messrs Indus Match Co. Ltd. v. United Bank Ltd. (1996 CLC 1378).
6. ' Mr. Mansoor-ul-Arfin, appearing for the plaintiff, has urged, in reply that summons in the present proceedings, apart from publication in leading newspapers was sent through Registered Post and Courier Service (TCS) on 28-1-1998 and should be deemed to have been delivered to the defendants, the very next day in terms of section 27 of the General Clauses Act. According to the learned counsel, it is no body's case that address on the envelope containing the summons was incorrectly mentioned. The proof of despatch of summons through Registered Post and the Courier Services is available on the record and by reference to the rule laid in the case of Emirates Bank International v. Dost Muhammad Cotton Mills (1993 M LD 54), the learned counsel contends, service is to be assumed to have been effected on the defendant through the two modes on 29-1-1998. It is further contended by Mr. Arfin that even if the date of service of summons through Bailiff is taken as the material date, the defendant has failed to justify non-filing of application for leave to defend on the two intervening days which ought to have been explained. The learned counsel has referred to the averments contained in para. 3 of the counter-affidavit wherein the factual aspect with regard to above-referred contention is duly stated. Pertinently, the defendant has failed to file any affidavit-in-rejoinder controverting such assertions. The contents of para. 3 of the counter,ffidavit, being relevant, are reproduced hereunder:-- "That the contents of para. 3 of the affidavit are denied being false. It is submitted that the summons were issued and were published in Nawae-Waqt on 25-1-1998 and in Dawn on 27-1-1998.
7. The summons were posted from the office of the Court by Registered Post on 28-1-1998 and on the same date were also sent by TCS. I submit that the Registered Post dated 28-1-1998 is deemed to have been served on the next date as per law and as per advice received by me, which advice I verily believe to be true. Also I am advised, which advice I verily believe to be true, that service of summons by any mode of service will be good service. Service was effected on 25-1-1998 when the summons were published in Nawa-e-Waqt. If the summons were received by the defendant on 24-1-1998 through the Bailiff of the Honourable Court, then it is no excuse for delay in filing the application for leave to defend. Further, it is submitted by the deponent that the summons were received by him from the Court on 18-2-1998 and yet the application was filed on 21-2-1998. The delay of 19th and 20th February, 1998 has not been explained. The defendant has also not explained the delay of each day from 25-1-1998."
8. I have considered that submissions of the learned counsel and am of the view that the defendant- bank is to be treated like any other litigant and cannot claim any preferential status. The summons in the present case were published in two leading daily newspapers on 25th and 27th January, 1998 respectively. The defendant-bank maintains a big organisation and in all reasonableness it cannot be accepted that the publication did not come to the knowledge of the defendant. It is a matter of common knowledge that big organisations like the defendant-bank, have arrangements for maintaining record of the various news items appearing in the print media and the press advertisement pertaining to such organisation. The contention that two publications did not come to the knowledge of the defendant, therefore, does not inspire confidence and cannot be accepted in the absence of any valid or justifiable explanation. In any event, the summons of proceedings filed under Act XV of 1997 are required to be sent in the four (4) modes specified under section 9(3) of the Act. The defendant being a banking company cannot plead ignorance of the said law and viewed in the such prospective, some specific averments ought to have been made explaining the receipt or otherwise of the summons. As has already been noted, nothing is stated in the affidavit of Muhammad Salman Khan about the summons sent through Registered Post and the Courier Service. Moreover, on behalf of the plaintiff specific averments is made about despatch of summons through Registered Post and Courier Service (TCS) on 28-1-1998 with further assertion about service having been effected through the above-referred two modes on the next day. The failure of the defendant to file an affidavit-in-rejoinder controverting the said assertion is significant and cannot be ignored. The learned counsel for the plaintiff has aptly referred to the case of Emirates Bank Ltd. (supra) wherein the rule about presumption of service of summons has correctly been stated in the following terms:--- "Insofar as the service by registered post is a matter of record, it was not necessary for the plaintiff to raise the question in its counter-affidavit and, in any case, the Court can suo motu take notice of question relating to limitation. As far as A.D. Cards, it is common knowledge that in large number of cases, if not in almost all cases, A.D. Cards are seldom returned by post-officer---see 1981 CLC 1495. It remains to be considered whether in the circumstances of the case, a presumption arises that the envelopes containing the summons were delivered to the defendants.
9. ' Section 27 of the General Clauses Act, 1897 provides: "Where any Central Act or Regulation made after the commencement of this Act authorises or requires any documents to be served by post---then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
10. ' As stated above, summons by registered A.D. Post were, in this case, dispatched on the 13th October, 1986, according to the noting on the copy of the summons which is on record. The fact that summons were sent in properly addressed and prepaid envelopes may be presumed---see Article 129, illustration (e), Qanun-eShahadat, 1984. Therefore, a presumption arises under section 27 of the General Clauses Act that summons were duly served on the defendants by registered post A.D. It is true that the presumption under section 27 of the General Clauses Act rebuttable but not only is nothing said about service by post in the affidavits of the defendants, no attempt was made by their counsel to rebut the presumption or to ask for any opportunity to do so. The defendants are represented by a senior and experienced counsel and it is inconceivable that the question of service by post was not present to their minds when they made their applications under section 5 of the Limitation Act. A further presumption that the envelopes containing the summons were delivered to the defendants on the day next after posting viz. 14th October, 1986, may al'o be drawn under the provisions of section 27---see PLD 1959 Kar.
11. 629."
12. In the present case service through publication, as already stated, was effected on 25-1- I 998 and 27-1-1998 respectively through the two daily newspapers. The summons were also sent through Registered Post and through Courier Service on 28-1-1998. The summons sent through the last mentioned two modes are to be deemed to have been served on the defendants the next day i,e, 2-1-1998. Even if the time for filing application under section 10 of the Act XV of 1997 is taken to have commenced from 29-1-1998, the application for leave to defend filed on 22-2-1998 is beyond the period prescribed by law. The defendant has failed to offer any explanation for the delay and has ather acted in clandestine manner creating doubt about its bona tides. Even otherwise, the defendant has not sufficiently explained the delay of two days after having admittedly come to know about initiation of present proceedings on 18-2-1998. The two cases referred by the learned counsel for defendant are clearly distinguishable from the present case. In the Karachi case service was effected only through publication and the summons sent through Registered Post and through Bailiff and undisputably returned unserved. In the present case, however, presumption about service through Registered Post and through Courier Service on 29-1-1998 has not been controverted nor has any attempt been made to dispel the plaintiff's contention. As regards the Lahore case, suffice to observe that the rule therein rather supports the case of the plaintiff. In that case, the provisions of Banking Companies Ordinance, 1984 - were the subject-matter of consideration and it was found that summons could not be sent simultaneously in the three modes prescribed by the said Ordinance. Conversely, the law contained in section 9(3) of Act XV of 1997 clearly provides for sending summons simultaneously in all the four modes namely through Registered Post, Courier Service, Bailiff and Publication. The defendant has failed to make out any case for condonation of delay and the application, C.M.A. No,1778 of 1998, in the circumstances, is dismissed.
13. As a result of dismissal of application listed at Serial No,2, application under section 10 of Act XV of 1997 cannot be considered being barred by time and, is resultantly, dismissed.
14. ' In consequence of dismissal of application for leave to defend, I have taken-up examination of the plaintiff's case. The learned counsel seeks short adjournment to make his submissions in support of their plaint. Put up for further orders on 21-8-1998.