' MUHAMMAD SAIR ALI, J.---This First Appeal is directed against order, dated 2-5-2000 of the learned Judge Banking Court, Lahore High Court, refusing to set aside judgment and decree, dated 8-12-1998. The decree, dated 8-12-1998 for Rs,221,722,270 with costs was passed against all the twelve defendants in the suit, including the four appellants who were proceeded against ex parte.
2. The suit was filed on 31-1-1984 under Banking Tribunals Ordinance, 1984 by respondent No,1 i,e, Habib Bank Limited initially against respondent No,2 i,e, Messrs Awan Textile Mills Limited, the predecessor-in-interest of the appellants and respondents Nos. 3 to 8. Appellant No,1 Mst. Nahid Saeed was also a defendant in her capacity as guarantor. On service of show-cause notices, all the defendants in the suit jointly filed reply to show-cause notice on 13-2-1994.
3. The predecessor-in-interest of the appellants i,e, Muhammad Saeed Akhtar Awan (defendant No,2 in the suit) died in a fatal road accident on or around 23-7-1994. On implement of appellants as legal heirs of late Muhammad Saeed Akhtar Awan, amended plaint was filed by the Bank. Show- causes notices were published for service of the minor appellants Nos. 2, 3 and 4 in daily "Business Report", dated 12-4-1995, "Nawa-i-Waqt", dated 15-4-1995 and "Frontier Post", dated 13-6-1995. The service was thus duly effected on appellants through their real mother i,e, appellant No,
1. Who was also a defendant in the suit. Reply to show-cause notice was filed by appellants on 19-9-1995, long beyond the 10 days statutory period provided under section 6(2) of Banking Tribunals Ordinance.
1984.
4. On promulgation of Banking Companies (Recovery of Loans; Advances, Credits and Finances)
Act, 1997, the case was transferred to Lahore High Court, Lahore, in Banking jurisdiction. After notifies including publication in the newspapers, the case was taken up by the learned Judge Banking Court resulting in judgment and decree, dated 8-12-1998. Owing to non-appearance, respondent No,2 (the company) and the appellants were proceeded against ex parte. Appellants on 21-5-1999 vaguely claiming knowledge only a day before, sought setting aside of the decree through an application under section 12(2), C.P.C. And section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. This application was disposed of by the learned Judge Banking Court on 2-5-2000 for having become infructuous on statement of the decree-holder regarding satisfaction of the decree. Appellants being aggrieved of order, dated 2-5-2000 filed the present appeal there against.
5. Learned counsel for the appellant has inter alia contended non-service of notices upon appellants on transfer of the case to the High Court and has sought protection of the interest of the minors (appellants Nos.
2. A 3 and 4) in the matter. Be that as it may. We are of the opinion that the appellants were not entitled to defend the suit for filing reply to show-cause notice beyond 10 days period of limitation.
In judgment, dated 10-5-2001 in R.F.A. No, 75 of 2000. We observed that:--- "Leave petitions of the appellants were, thus, time-barred thereby debarring them from seeking defence of the suit. Appeal being continuation of the suit cannot entitle the appellants to bypass the statutory bar of limitation of seeking in appeal defence of the suit through removal of judgment and B decree passed in the suit.
' Other point's raised by the learned counsel for the appellants relate to leave for defence of the suit. Lapse of limitation forecloses appellants right to seek Court's consideration to other grounds relevant for suit's defence only."
We have thus no choice but to decline appellants' appeal IC against order, dated 2-5-2000.
6. Nevertheless, liquidated damages of Rs,36,953,712 incorporated in the decretal amount of Rs, 221,722,270 are reducible therefrom. Liquidated damages as claimed by the respondent-Bank could not have been awarded either under section 11(4) of the repealed Banking Tribunals Ordinance, 1984 or under the provisions of Banking Companies (Recovery of Loans. Advances, Credits and Finances) Act, 1997. This constituent of the decree being patently illegal is directed to be reduced from the decretal amount. The decree shall thus be modified to be for an amount of Rs, 18,47,68,558 alongwith costs.
6. The appeal is accordingly disposed of in above terms.