YASIR CHAUDHRY vs ZARAI TARAQIATI BANK LIMITED (ADBP) through Branch

ORDER

Present first appeal proceeds against judgment and decree dated 22-11-2004, whereby the learned Judge Banking Court, after dismissing appellant's application for leave to defend the suit, passed a decree for recovery of Rs.3,67,287, with costs and cost of funds, against the appellant.

2. Precisely stated facts of the case are that the respondent-Bank filed the suit for recovery of Rs.3,67,287 along with return/cost of funds, against the appellant, before the learned Banking Court, which issued requisite summons to her. Pursuant thereto, the appellant filed the application seeking leave to defend the suit, which was resisted by the respondent-Bank and ultimately the learned Judge Banking Court, after dismissing appellant's application for leave to defend the suit, proceeded to pass a decree for recovery of Rs.3,67,287 together with costs and cost of funds, against the appellant, vide impugned judgment and decree dated 22-11-2004, hence the present appeal.

3. Learned counsel for the appellant, while referring to the statement of accounts and para.3 of the plaint, has submitted that the stance of the appellant is inconsistent, inasmuch as no proper statement of accounts in support of the plaint has been placed on record.

4. Summoned record has been perused with the assistance of the learned counsel for the appellant.

5. After hearing the learned counsel and upon the examination of the summoned record, we find that the appellant was served through proclamation, in two daily newspapers (one in English language and one in Urdu language), on 30-1-2004 through bailiff on 6-2-2004, while he filed the application for leave to defend the suit on 10-3-2004. Section 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 provides that the defendant shall file the application for leave to defend within thirty days of the date of first service by anyone of the modes laid down in subsection (5) of section 9. In this case, as noted above, the appellant was, firstly, served through proclamation in the newspapers on 30-1-2004 and he, admittedly, filed leave application on 10-3- 2004, thus, on the face of it, his application was barred by time, whereas the same, in view of the aforenoted provision of law, had to be filed within a period of thirty days. This aspect of the case has also duly been adverted to and decided by the learned Judge Banking Court, who has held that no good ground for condonation of delay in filing the application for leave to defend the suit has been made out. Appellant's A application deserved to be dismissed on the short ground that the leave application was fired out of time.

6. The learned Banking Court, after discussing the question of limitation, has also decided appellant's application on merits. It was admitted by the appellant that he availed loan facility, executed the documents and failed to liquidate the balance decretal amount. We have also examined appellant's application for leave to defend the suit and find that in the said application, the appellant admitted having availed two loan facilities, allegedly paid a sum of Rs.3,45,121 and further admitted that a sum of Rs.2,40,879 is still outstanding, which amount he is prepared to liquidate. The learned Banking Court has adverted to every aspect of the case and rightly came to the conclusion that the appellant failed to raise substantial questions of law and facts, in which evidence need to be recorded. The appellant could not make out a case for the grant of leave to defend the suit and the learned Bank in g Court rightly dismissed his application.

7. Now coming to the solitary contention raised by the learned counsel, suffice it to say that the appellant did not take the said plea in his application for leave to defend the suit. We have re- examined appellant's said application and are unable to find that any such ground, which has been agitated by the learned counsel before this Court, was raised by the appellant in his leave application. Paras.7 and 8 of the plaint relate to the statement of accounts, which state that a sum of Rs.4,54,110 is outstanding against the appellant. In reply to the said paras, although it was averred that the same are incorrect, yet, as noted above, availing of two loan facilities and outstanding amount of Rs.2,40,879 was admitted by the appellant, however, it was not pleaded that the statement of accounts is not in consonance with the averments contained in the plaint. It is settled law that a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which has not been raised before the lower forums. Reference can be made to Anwar Ali and others v. Manzoor Hussain and another 1996 SCM R 1770; Amir Shah v.

Ziarat Gul 1998 SCM R 593.

8. In the above perspective, we have examined the impugned judgment and find that the learned Banking Court did not commit any legal errors in passing the decree. We have no reasons to reverse the impugned judgment and decree, hence, the same are maintained.

9. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed.