' MIAN HAMID FAROOQ, J.---The appellant/ judgment-debtor No,2, through the filing of the present appeal, has called in question order dated 25-6-2001, whereby the learned Judge Banking Court dismissed the applications, filed by the appellant, for setting aside the ex parte judgment and decree dated 10-11-1997 and for the condonation of delay.
2. Briefly stated, the facts culminating to the filing of the present appeal are that the respondent- Bank filed a suit for the recovery of Rs,8,14,612, against M/s.. Toosi International and the appellant, before the Banking Court, Lahore and upon the presentation of the plaint, the learned. Banking Court issued summons through all the modes of service provided under section 9 (3) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and through the publication made in two daily newspapers i,e, Pakistan Observer and the Daily Pakistan. As the appellant did not file any application seeking leave to defend the suit, even after the expiry of the stipulated period of 21 days, therefore, the learned Banking Court proceeded to pass an ex parte decree dated 10-11-1997 for the recovery of Rs,8,14,612 together with costs against the appellant and respondent No,2. On 30-6-1998, the appellant filed an application, under.Section 12 of the aforenoted Act No,XV of 1997, for setting \aside the ex parte decree dated 10-11-1997 and as the same was grossly barred by time, therefore, the appellant thought it fit to file an application under section 5 of the Limitation Act, seeking condonation of delay in filing the earlier application. These applications were resisted by the respondent-Bank, however ultimately, the learned Judge Banking Court, after finding that the appellant had knowledge of the passing of the decree and the delay of each day has not been explained, proceeded to dismiss the said application vide impugned Judgment dated 25-6-2001, hence the present appeal.
3. Although notice was received by the respondent-Bank for today as is evident from the report of the Process Server on the notice, yet nobody has entered appearance to represent the respondent-Bank, thus it is proceeded ex parte.
4. The learned counsel for the appellant has contended that the appellant was not properly served and as he was not in the knowledge of the institution/pendency of the suit, thus could not file application seeking leave to defend the suit. He has further contended that the appellant attained the knowledge about the ex parte decree on 16-6-1998, when he received a letter from the bank, therefore the application, filed by the appellant on 30-6-1998, was within time.
5. Upon the examination of the record of the case, we find that when the plaint was presented before the learned Banking Court, it issued summonses, through all the modes prescribed under section 9 (3) of the aforenoted Act XV of 1997. Summons through registered post acknowledgement due issued to the appellant which bears the address i,e, 48-B, Brandreth Road, Lahore, were returned by the postal authorities with the report that the addressee has gone out of Lahore. It has nowhere been reported by the postal authorities, on the returned registered letter, that the address of the appellant is incorrect, while on the other envelope addressed to Messrs Toosi International, it was reported that no firm by this name exists on the given address. We further find from the record that the summons were also issued to the appellant through courier service, receipt of which has been placed on record. These summons deemed to have been served upon the appellant, as the same were not returned back to the Banking Court, as we do not find the said envelope on record. Additionally, the summons were also published in one English Language and one Urdu Language newspapers, the prints whereof have been placed on record. It appears from the record that the learned Banking Court adopted all the modes of service prescribed under the law. Section 9 (3) of the Act, XV of 1997, provides that the service duly effected in any of the aforesaid modes shall be deemed to be a valid service for the purpose of this Act. It flows from the above that the appellant was served through more than one mode of service, as in our view, he deemed to have received the summons through courier service, and intentionally avoided to receive the summons through registered post acknowledgement due and was able to manoeuvre a fictitious report on the envelope, which is different if compared with the reports on the other envelope sent on the same address. So far as the proclamation in the newspaper is concerned, the same is held to be a valid service, as per the law declared by the Honourable Supreme Court of Pakistan in a case reported as M/s. Ahmad Autos and another v. Allied Bank of Pakistan (PLD 1990 SC 497). It has inter alia been held in the said judgment that "service by publication is held to be a good service and that where the defendant does not obtain leave to defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled for decree".
6. Another aspect of the case is that the address of the appellant furnished by the respondent- Bank in the suit was 48-B Brandreth Road, Lahore. The summons were issued to the appellant and the publication was effected on the same address. Surprisingly the address, which has been provided by the appellant in his application for setting aside the ex parte decree and the affidavits filed in support of two applications before the learned Banking Court, shows the same address.
Additionally, letter dated 16-6-1998, on the basis of which, the appellant claims that he attained the knowledge about the passing of the ex parte decree, incidentally bears the same address. Not only this, but in the present appeal and in all the other documents also including the affidavits, the appellant has shown to be the resident of the above said address. It flows from the above that the address given in the plaint and in the summons was the true and correct address of the appellant and the summons were issued to the same correct address. In the above perspective, it cannot be pleaded by the appellant under any stretch of imagination that he has not been served. In the above backdrop, we are of the firm view that the appellant was properly and legally served and he neglected to file an application for leave to defend the suit and choose to file an application for setting aside ex parte decree after an inordinate delay of more than seven months.
7. Now adverting to order dated 25-6-2001, whereby the appellant's two applications were dismissed. Admittedly judgment and decree was passed on 10-11-1997 and the application under section 12 of the Act No,XV of 1997 together with an application under section 5 of the Limitation Act, were filed on 30-6-1998, i,e, after the expiry of a period of nearly eight months. Under section 12 of Act XV of 1997, such an application could be filed within 21 days from the date of the decree or where the summons were not duly served, when he has attained the knowledge of the decree. In view of our findings given above, as we have held that the appellant was duly served, as prescribed under the law, and thus he had knowledge of the passing of the decree, therefore, even if the period of limitation is taken from the date of the knowledge, even then the application under section 12 was clearly barred by time and has rightly been dismissed by the learned Banking Court.
In the above perspective, we are not inclined to believe that the appellant attained the knowledge on 16-6-1998, after the receipt of the letter from the tank. Additionally, we feel that the said plea is manipulated an afterthought and not in consonance with the record of the ease, as noted above.
8. So far as the application under section 5 of the Limitation Act is concerned, as we have held that the appellant had knowledge of the passing of the decree and the plea of attaining the knowledge, through letter dated 16-6-1998, is afterthought and not plausible, therefore, no "sufficient cause" was made out for the condonation of delay. Furthermore if the period for filing the application under section 12, is at all to be taken from 16-6-1998, the delay, thereafter till 30-6-1998, is unexplained in the said application as under the law, each day's delay is to be explained by the party seeking condonation of delay. Above all, section 22(1) of Act XV of 1997 provides that provisions of Limitation Act, 1908 shall not apply to any suit, application or other proceedings filed or transferred to the Banking Court under this Act. As the application under section 5 of the Limitation Act was filed before the Banking Court in the proceedings undertaken under the Act, XV of 1997, therefore, per force of the aforenoted provision of law, the provisions of Limitation Act, including section 5, were not attracted, thus the application under section 5 of the Limitation Act, filed by the appellant, notwithstanding the grounds urged therein, itself was incompetent and has rightly been dismissed.
9. Seeing from any angle, we do not find any legal infirmity either in passing the impugned judgment and decree or with the impugned order dated 25-6-2001, passed by the learned Banking Court and to our tinned, the said order does not call for any interference by this Court, thus we maintain the same.
10. Upshot of the above discussion is that the present appeal is devoid of any merits, thus the same is dismissed with no order as to costs.