' MIAN HAMID FAROOQ, J.---Present appeal, instituted under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 21-9-2001, passed by the learned Single Judge of this Court, in exercise of the Banking jurisdiction, whereby an application (Civil Miscellaneous No,142-B of 2000 in C.O.S. No,2 of 1997), filed by the appellants seeking setting aside of ex parte judgment and decree dated 3-11-1998, was dismissed.
2. Briefly stated the facts culminating to the filing of the present appeal are that the respondent- Bank, on 24-6-1997, filed a suit for recovery of Rs.222.518 Million, against the appellants, before this Court in exercise of its original jurisdiction, as Judge Banking Court, wherein, on 27-6-1997, notices were issued to the appellants through ordinary process, registered post acknowledgement due and through publication in the two daily newspapers, but as none filed the application, seeking leave to defend the suit, or entered appearance, therefore, the appellants were proceeded ex parte, vide order dated 16-4-1998. Subsequently the aforenoted suit was decreed with costs against the appellants, vide judgment and decree dated 3-11-1998. Pursuant to the passing of the aforenoted decree, the respondent-Bank filed an execution petition (2-B of 2000) wherein, execution process appears to have initiated. Upon attaining knowledge, on 1-5-2000, the appellants filed an application, under section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) (Civil Miscellaneous No,142 of 2000/BWP) seeking setting aside the ex parte decree dated 3-11-1998, which was resisted by the respondent-Bank by way of filing the reply and ultimately the said application was dismissed by this Court, vide order dated 21-9-2001, which has prompted the appellants to file the present appeal.
3. The learned counsel for the appellants has contended that the ex parte judgment and decree was procured by the respondent-Bank by furnishing incorrect addresses, whereas the latest addresses of the appellants were available with the respondent. Bank, inasmuch as the Bank addressed numerous letters to the appellants on the latest addresses, thus according to the learned counsel the impugned order is not sustainable in law. Conversely, the learned counsel for the respondent-Bank has supported the impugned order and has submitted that the latest addresses, which were provided in the plaint, were furnished in the execution petition and the appellants were, in fact, served on those addresses, therefore, the addresses provided by the appellants in the plaint were correct.
4. Upon the examination of the available record, we find that the learned Judge Banking Court, on the presentation of the plaint by the respondent-Bank, in view of the provisions of section 9(3) of Act XV of 1997, issued summons to the appellants through all the modes of service, prescribed under the law viz. Ordinary process, registered post acknowledgement due and by publication in two daily newspapers. The summons were ordered to be published in daily Dawn, Karachi' and `Nawa-i-Waqt, Multan' for 23-9-1997. Although the newspaper, i.e. Nawa-i-Waqr containing the publication of summons is available on record, yet we do not find any copy of the newspaper i.e. Dawn', containing the said publication, as directed by the learned Judge, while issuing the summons. When confronted, the learned counsel for the respondent has pleaded that, in fact, the proclamation was published in daily Dawn' also, but he was not able to produce any print copy of the said newspaper. Examination of order dated 16-4-1998, whereby the appellants were proceeded ex parte, also manifests that the learned Judge, after finding that the proclamation has been made only in daily Nawa-e-Waqt' dated 13-10-1997 and daily `Nawae-Waqt' dated 23-3-1998, proceeded to pass an ex parte order. Had there been any publication in the daily `Dawn', the learned Judge must have mentioned in his aforenoted order that the appellants have also been served through the publication of summons in daily `Dawn'. In the above backdrop, we are of the considered view that the initial order passed by this Court, on 27-6-1997 regarding service of the appellants was not complied with, the publication was not effected in daily 'Dawn' and the existing record fortifies our aforenoted view.
5. Section 9(3) of Act XV of 1997, provides that on a plaint being presented to the Banking Court, summons shall be served on the defendant through bailiff or process-server of the Banking Court, by registered post acknowledgement due, by courier and by publication in one English Language and one Urdu Language daily newspapers and service duly effected in any of the aforesaid modes shall be deemed to be a valid service for the purposes of this Act. Perusal of the record exhibits that though the learned Banking Judge ordered for the issuance of su 1 mons through different modes, including publication in two daily newspapers, one English Language and one Urdu Language, yet no summons were issued to the appellants "by courier" We feel that the learned Banking Court was under a legal obligation to order for the issuance of summons through all the modes of service as provided under the law and as the summons were not sent by courier, therefore, we are of the view that the provisions of section 9(3) of Act XV of 1997, have comprehensively been violated. It is true that the service effected in any of the aforesaid modes shall be deemed to be a valid service but that presupposes that the summons shall be issued through all the four prescribed modes of service. If any one of them is lacking then there would neither be the proper compliance of the provisions of section 9(3) of Ordinance XV of 1997, nor it could be argued that valid service has been effected.
6. Section 9(3) specially provides that the publication of the summons shall be made in one English Language and one Urdu Language daily newspaper. As noted above, despite the specific orders of the learned Judge Banking Court, existing record evidences that the summons were not published in English newspaper, thus, there is no compliance with the mandatory provisions of section 9(3) of Act XV of 1997. It is settled law that the penal provisions of law are to be construed very strictly. To our mind, the initial process for the issuance of summons to the appellants was in violation of the provision of section 9(3) of Act XV of 1997, therefore, notwithstanding the correct or incorrect addresses of the appellants, we feel that the appellants were not properly and legally served.
7. We have examined the impugned order and find that the learned Judge Banking Court has not embarked upon this aspect of the case, which, in our view, goes to the roots of the case, thus, we are inclined to set aside the impugned order.
8. Upshot of the above discussion is that the present appeal is allowed, the impugned order dated 21-9-2001, is hereby set aside with no order as to costs. Resultantly, the appellants' application, filed under section 12 of Ordinance XV of 1997 is also accepted and the ex parte judgment and decree dated 13-11-1998, is also set aside, consequently, the suit for recovery, filed by the respondent-Bank, shall be deemed to be pending before the learned Judge Banking Court, and the appellants are allowed a period of 10 days, for filing an application under section 10 of Ordinance XLVI of 2001, from today, which shall be decided by the learned Judge Banking Court, of course in accordance with law.