RIAZ AHMAD (RANA RIAZ ANJUM) and another vs The BANK OF PUNJAB

ORDER

' This appeal is directed against order dated 09.07.2013 passed by the learned Judge Banking Court, Multan whereby he dismissed the application filed under section 12(2), C.P.C. by the appellants.

2. The facts necessary for disposal of this appeal are that the respondent bank filed a suit for recovery of Rs.755,682/- from the appellants, wherein the appellants filed the application for leave to defend along with an application under Order I, Rule 10, C.P.C. for impleading State Life Insurance Company as party to the suit. After hearing the arguments of the parties, the learned Judge Banking Court dismissed the application for leave to defend as well as the application filed under Order I, Rule 10 of C.P.C. and decreed the suit on 18.06.2012. The appellants thereafter filed an application under section 12(2), C.P.C. for setting aside judgment and decree dated 18.06.2012 on the ground that the respondent bank had filed the insurance claim with State Life Insurance Company which shows that it had obtained the decree by practicing fraud upon the Banking Court. It was further stated that the bank's claim lay against the Insurance Company and not against the appellants. Written reply to the said application was filed by the respondent Bank. After hearing the arguments on the said application; learned Judge Banking Court dismissed the same on 09.07.2013.

3. Learned counsel for the appellants reiterated the stance taken in the application filed under section 12(2), C.P.C. and further submitted that Banking Court ought to have framed the issues and recorded evidence before dismissing the said application.

4. After hearing the arguments addressed by the learned counsel for the appellants and perusal of the record we have come to the conclusion that this appeal has no merit and is liable to be dismissed. The application filed under section 12(2), C.P.C. did not mention any particulars constituting fraud and misrepresentation on the part of respondent bank in obtaining the judgment and decree from the Banking Court. The fact that the respondent bank had applied to the insurance company for realization of the insurance claim had no bearing on the A recovery suit filed by it against the appellants which was only concerned with the determination of liability against the appellants. Be that as it may, the appellants had full opportunity to defend their case before the learned Banking Court which decided the suit on the basis of the available record. The application filed by the appellants under Order I, Rule 10, C.P.C. was rightly dismissed by the learned Judge Banking Court as under the provisions of the Financial Institutions (Recovery of Finances)

Ordinance, 2001, the insurance company cannot be made a party in a recovery suit. The realization of the insurance claim, if at all it happens, is a matter to be agitated before the learned Executing Court. It is also not necessary for a Court to always prove issues on an application filed under section 12(2), C.P.C. more so when the particulars of fraud and misrepresentation are missing (See Messrs Dadabhoy Cement Industries Limited and 6 others v. National Development Finance Corporation Karachi (PLD 2002 SC 500).

5. In the circumstances, this appeal being devoid of any merit is hereby dismissed with no orders as to cost.