' MIAN SAQIB NISAR, J.---In a suit for recovery, filed by the respondent-Bank, against the appellants, by refusing the leave application of the appellants, primarily being barred by time, learned Banking Court through the judgment and decree dated 21-3-2000, has allowed the suit to the tune of Rs.3,34,429.89.
2. Briefly stated the facts of the case are that on 24-12-1992, the respondent-Bank as successor of BCCI filed a suit for recovery of Rs.3,34,429.89, alleging therein that the appellants had approached the BCCI to provide loan facility which was given to the appellants, as over draft in the year 1980.
Subsequently, the facility was further enhanced and in order to secure the facility, appellant No,1, had mortgaged his property, certain guarantee documents, etc. Were also executed by the appellants, but they have failed to discharge their liability. The appellants were duly served through publication of notices in the daily "Aafaq" and "Jehannuma" dated 13-1-1993 and 12-1-1993: they did not file their leave application within ten days, which was out of limitation by five days. Anyhow, in their leave application, the appellants took up the plea that the suit is barred by time. The leave application of the appellants has been dismissed as being barred by time and also that the appellants had failed to make out a plausible defence with regard to the availing of the over draft facility and discharge of their liability. Thus the suit was decreed on 21-3-2000. Hence this appeal.
3. Learned counsel for the appellants contends that even if the leave application was dismissed as being barred by time, but as the suit of the respondent was clearly out of limitation, therefore, under section 3 of the Limitation Act, it was incumbent upon the Banking Court to have considered the question. It is argued that the facility was allegedly availed by the appellants in the year 1980 and the suit was filed in the year 1992, there is nothing on record to show if within the period of limitation, the appellants had ever acknowledged their liability, so as to extend the period under section 19 of the Limitation Act. According to the plaint of the respondent, it is stated that the cause of action had accrued to the respondent on 10-4-1991 and 11-4-1991 when the appellant wrote a letter to the respondent for acknowledgment of their liability. It is stated that the letter dated 10-4- 1991 was not with regard to the subject-matter of the present transaction rather it pertains to another transaction, which dispute was pending between the parties in another suit. As far as letter dated 11-4-1991, is concerned, same is a forged document.
4. We have heard learned counsel for the parties and according to the admitted facts of the record, the facility was granted to the appellant in the year 1980, the suit has been filed on 24-12- 1992, limitation for filing of the suit of the nature was three years from the date it became due, it is not mentioned in the plaint as to when it became due, no acknowledgment has been brought on the record by respondent to show if the benefit of section 19 of the Limitation Act, was available to it. Therefore, if any acknowledgment, after expiry of the limitation, as alleged by the bank has been made by respondent, still the suit cannot be considered to be within limitation, because once the limitation has expired and no acknowledgment has been made within the period of limitation, any acknowledgement made after the expiry thereof, would not extend the time. Thus irrespective whether the leave application of the appellants was filed after the period of limitation or not filed at all, it was the duty of the Banking Court under section 3 of the Limitation Act, to have examined whether the suit of the respondent was within time. In this behalf, reliance can be placed on PLD 1993 SC 147, therefore, without allowing the appellants the leave application to appear and defend the suit, the impugned decree is set aside and the matter' is remanded to the learned Banking Court to exercise its powers under section 3 of the Limitation Act, keeping in view the principles of section 19 of the Act and to examine and decide whether from the contents of the plaint and the attached documents thereto, the suit is within time or otherwise. It may however be observed that it has been brought to our notice that the mortgaged property has already been sold in execution of the decree. Learned counsel for the appellants has specifically stated before the Court that the appellant does not press for the setting aside of the auction, and in case the suit of the respondent/defendant is dismissed by the learned Banking Court, on the ground of limitation; the claim of the respondent shall be restricted only to the extent of the sale proceeds, which the bank has received from the auction of the property, if so permissible under the law.