Messrs AXLE PRODUCTS LIMITED vs Messrs ALLIED BANK OF PAKISTAN LTD.

ORDER

' SABIHUDDIN AHMED, J.---This petition emanates from a judgment of a Division Bench of the Sindh High Court dismissing the petitioner's appeal against an order of the Banking Court under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 hereinafter referred to as. The Ordinance, 2001 read with section 12(2) C.P.C. In the aforesaid application the petitioner sought setting aside the ex parte decree on the ground that it had been passed without proper service of summons upon them in Suit No,55 of 2003. Admittedly service of summons was effected through publication but the petitioner however contended that no personal service has been effected upon them either through bailiff or through registered post and courier and summons were pasted on an address where the petitioner's office had seized to exist.

2. While it is well settled that service through publication could only be resorted to upon the failure of other modes under the C.P.C. Nevertheless Mr. Aziz-ur-Rehman, learned counsel for the respondent forcefully contended that section 9 of the Ordinance, 2001 expressly stipulated service of summons through any of the five modes stated therein was valid. Mr. Saalim Salam Ansari learned counsel for the petitioner however argued that there was no reason for relying upon service through publication when it was evident that other modes had not even been resorted to.

3. Mr. Saalim Slam Ansari urged that an ex parte decree should not have been passed unless it was clearly shown that personal service through other methods stated in section 9 of the Ordinance, 2001 have been resorted to but summons could not be found to have been served. He relied upon a recent unreported judgment of a three member Bench of this Court in the case of Mobarak Ali v.

First Prudential Modaraba C.Ps. No,139-K and 273-K of 2006 decided on 4-1-2007. Mr. Aziz-ur- Rehman on the other hand referred to an earlier judgment of a two member bench in the case of Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 where a somewhat different view has been taken. Indeed the provision relating to service of summons contained in section 9 of the Ordinance, 2001 to be somewhat different from those in C.P.0 inasmuch as service through all modes is sought to be B simultaneously effected. Nevertheless the question whether this by itself is sufficient for holding substituted service valid without other methods having them resorted to needs to be examined.

4. It also needs to be considered that while a statute providing for a special procedure of trial in Banking matters might be justifiable on the ground of reasonable classification; whether the same principle could be extended to section 9 relating merely to service of summons?

5. Leave to appeal is accordingly granted inter alia to examine the above contentions. Parties would be at liberty to file additional documents within three weeks where after the appeal may be fixed for hearing at an early date in Karachi whenever a Bench consisting of three Honourable Judges is available.