' MIAN HAMID FAROOQ, J.--Instant first appeal, filed by the appellant/defendant No,1, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), proceeds against judgment and decree dated 12-1-2001, whereby the learned Judge Banking Court, after the dismissal of appellant's application for leave to defend the suit, passed a decree for the recovery of Rs,40,58,987.27 alongwith costs and future mark-up, favouring the respondent- Bank and against the appellant and respondent No,2.
2. Briefly stated, the facts culminating to the filing of the instant appeal are that the respondent- Bank filed a suit for the recovery of Rs,40,58,987.27, against the appellant and respondent No,2, claiming therein that a financial facility of Rs,30 lacs was provided to the appellant, inter alia, against the security of equitable mortgage of residential house. Upon the filing of the suit, the learned Judge Banking Court issued summons to the defendants, through ordinary process, registered A.D., courier service and also by proclamation in daily newspapers i.e. "The News" and "The Pakistan". Pursuant to the above, on 8-7-2000, an application, seeking leave to defend the suit, purportedly, on behalf of the appellant, was filed by one Ch. Kahlid Barlas, Advocate, supported by an affidavit of the learned counsel, before the learned Banking Court, while no such application was filed on behalf of respondent No,2 and as such he was proceeded ex parte vide order dated 21-10-2000. Ultimately, the learned Judge Banking Court, after hearing the parties on the aforenoted application which was termed by the appellant as "interim application", and after finding that the said application is devoid of merits and respondent No,2 has already been proceeded ex parte, passed a decree for the recovery of the suit amount alongwith costs and future mark-up in favour of the respondent-Bank and against the defendants, jointly and severally, vide judgment and decree dated 12-1-2001, which has prompted the appellant to file the present appeal.
3. The learned counsel for the appellant, while relying upon the report of the bailiff, on the summons, issued through the ordinary process, submits that as the appellant was not properly and legally served on account of incorrect address, therefore, he could not file a "proper application" for leave to defend the suit within the period prescribed under the law. He has added that the application, filed by the learned counsel (Ch. Khalid Barlas, Advocate), was only an "interim application", wherein, it was prayed that permission to file a detailed application may be granted.
Conversely, the learned counsel for the respondents has submitted that the learned Banking Court issued process through all the modes of service and, under the law, service through any of the modes would be deemed to be sufficient service, therefore, the appellant was legally served, but he failed to file an application for leave to defend the suit, within the prescribed period, therefore, the learned Banking Court was justified in dismissing the application, filed by the learned counsel of the appellant, and decreeing the suit.
4. Upon the examination of the record, we find that upon the presentation of the plaint by respondent No,1, the learned Banking Court issued summons to the defendants (appellant and respondent No,2) through all the modes of service, provided under section 9(3) of Act, 1997.
Summons issued to the appellant through ordinary process was returned by the bailiff of the Court with the following report:- {{URDU TEXT}} ' Summon issued to respondent No,2, through ordinary process was returned with the following report:-
5. Summons, through registered A.D., were also issued to the defendnts, as we find postal receipts on record, containing the addresses of the defendants, however, it is not proved on record as to whether the defendants in fact received registered letters or not. Envelopes contains summons issued to the appellant through courier service, were returned to the Banking Court with the report that the address is incomplete, however, we find from the record that the proclamation was duly made in two daily newspapers i.e. "The Pakistan" of its print dated 13-6-2000 and "The News" dated 15-6-2000. Consequent to the above, the appellant, on 8-7-2000, filed an application, supported by the affidavit of the learned counsel, with the following caption:- {{URDU TEXT}}
6. It flows from the above that the defendants were not personally served on account of change of the addresses, as manifests from the report of the bailiff which has also been relied upon by the learned counsel for the appellant to contend that the appellant was not residing at the given address. It is evident from the available record that the address, given in that summons, was the same, which was provided by the appellant a the time of obtaining of the financial facility. We have also examined the photo-copies of the documents, filed by the appellant in support of their claim, and find that the address of the appellant, in all those documents, is the same, which has been mentioned in the plaint and on which, the learned Banking Court issued the process. Even the account opening form shows the same address. It is evident from the perusal of the documents that undoubtedly when the account was opened and financial facility was obtained, the appellant furnished the only address to the respondent-Bank and thus we are of the view that the bank was justified in suing the appellant, thereby giving the same postal address. The learned counsel for the appellant has laid much stress on the point that if the appellant was not available on the given address, it was the duty of the respondent-Bank to have ascertained and furnished the fresh address. Suffice it to say that the said contention is ill-founded and misconceived, as, if the appellant after incurring the financial obligations qua the respondent-Bank, choose to change his residence or place of business, then it was his duty to furnish the latest and correct address to the respondent-Bank. It is established principle that the debtor is to seek the creditor and thus, the appellant was duty bound to abreast the respondent-Bank, the creditor, with the latest development about the whereabouts of the appellant.
7. So far as the registered letters are concerned, although we find postal receipts on record, which evidences that the registered letters were issued and dispatched to the defendants, yet those were not returned back, served or unserved and the presumption, under the law, would be that the defendants have received those letters.
8. Now coming to the publication made in the newspapers, the same was affected in two daily newspapers i.e. One in English language and one in Urdu. It has been envisaged under section 9(3) of the Act, 1997, that the "service duly affected in any one of the aforesaid modes shall be deemed to be a valid service for the purpose of this Act. Needless to add that the intent of the legislature, for providing simultaneous issuance of summons through different modes, is that if for any reason, the summons are not served through bailiff or registered post acknowledgment, it would be served in any case by publication. If any case is needed Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 can be referred.
9. In the above back drop, to our mind, the appellant was properly and duly served in accordance with law, but despite that he failed to file an application for leave to defend the suit within the prescribed period, under section 10 of Act, 1997. It has been held in Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCM R 2353, that the period, for purpose of computing the limitation for filing an application for leave to defend the suit, will be the date of first publication of the summons in the newspaper. In this case, as noted above, publications were made in two daily newspapers dated 13-6-2000 and 15-6-2000, therefore, even the "interim application" filed by the, appellant on 8-7- 2000 with the prayer that he may be allowed to file a detailed leave application, was barred by time, as the same was filed, admittedly, after the expiry of period of 21 days taken from 13-6-2000 and 15-6-2000. Additionally, upon the perusal of the contents of the said leave application, we do not find that the appellant was able to raise "serious and bona fide dispute". Even the said application was not supported by the affidavit of the appellant himself, inasmuch as the said application was not even signed by the appellant himself.
10. In the "-above perspective, we have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not call for any interference by this Court, moreso; when the learned counsel has not been able to point out' any grave legal infirmity, thereby unsettling the reasoned judgment, thus, the findings arrived at by the learned Banking Court are hereby maintained.
11. Upshot of -the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed leaving the parties to bear their own costs.