Dr. JAVED IQBAL and 2 others vs ASKARI BANK LIMITED through Attorney
This civil appeal is directed against the order of the Banking Court dismissing the appellants' application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 12(2) of the Code of Civil Procedure, 1908, which sought to set aside an ex parte decree passed against them. The core legal questions involved whether the appellants were duly served with summons at their correct address, whether the ex parte decree was sustainable, and whether the application to set aside the decree was barred by limitation and lacked grounds of fraud or misrepresentation. The Lahore High Court held that the appellants were validly served through prescribed modes at their last known address, that the subsequent change of address was communicated to the bank and the rent deed executed well after the decree, and that the application under section 12 of the Ordinance and section 12(2) C.P.C. was time-barred and devoid of any proof of fraud or misrepresentation. The court dismissed the appeal in limine, affirming that failure to file a Petition for Leave to Defend within the statutory period rightfully led to the decree.
- Whether an ex parte decree passed under the Financial Institutions (Recovery of Finances) Ordinance, 2001 can be set aside without establishing fraud or misrepresentation under section 12(2) C.P.C.?
- Does a change of address communicated to a bank after the institution of a recovery suit invalidate the service of summons effected at the defendant's last known address?
- Whether an application to set aside a decree under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 filed beyond the prescribed thirty-day period is maintainable?
- Can a ground regarding a defendant being out of the country at the relevant time be raised for the first time in an appeal when it was never pleaded before the trial court?
- Section 22, Financial Institutions (Recovery of Finances) Ordinance 2001
- Section 12, Financial Institutions (Recovery of Finances) Ordinance 2001
- Section 12(2), Code of Civil Procedure 1908
- Section 9, Financial Institutions (Recovery of Finances) Ordinance 2001
- Section 10, Financial Institutions (Recovery of Finances) Ordinance 2001
ORDER
' This appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) is directed against order dated 11.1.2017 whereby application of the appellants under section 12 of the Ordinance read with section 12(2), C.P.C. Was dismissed.
2. Relevant facts are that respondent bank filed suit for recovery of Rs,2143571.23 along with costs and cost of fund on 21.10.2015. Notices were issued to the defendants as per mode prescribed under section 9 of the Ordinance. However, no one appeared on behalf of the defendants and no Petition for Leave to defend (PLA) was filed, hence suit was decreed on 24.5.2016. The appellants/defendants filed application under section 12 of the Ordinance read with section 12(2), C.P.C. On 27.6.2016 to set aside the judgment and decree. The said application was dismissed on 11.1.2017, hence this appeal.
3. Learned counsel for the appellants argued that appellants were not served through any mode prescribed under law as address given in the plaint was not correct and appellants were already shifted to rented premises in Johar Town, Lahore. He further submits that bank was intimated regarding new address on 21.10.2015. Learned counsel also referred to rent deed executed by appellant No,
1. He further submits that appellant No,3 was out of Pakistan at the relevant time, therefore, learned Court wrongly held that appellants were duly served.
4. We have heard the arguments of learned counsel for the appellants at limine stage.
5. The record shows that suit was filed against appellants on 21.10.2015 in which, notices were issued through all modes prescribed under section 9 of the Ordinance. The appellants neither appeared nor filed their PLA within prescribed period, hence suit was decreed on 24.5.2016. The main contention of the appellants is that their address in the plaint was not correct, hence they were not served. We have considered this argument in the light of available record and have noted that address given in the plaint was House No,787, Nasheman-e-lqbal Cooperative Housing Society, Lahore and same address was also admittedly mentioned by the appellants in their affidavits filed along with application under 12 of the Ordinance read with section 12(2), C.P.C.
6. The argument of learned counsel for the appellants that respondent bank was duly informed regarding change of address through letter dated 21.10.2015 has also no basis. The said letter shows that same was received by bank on 21.10.2016 which was much after passing of decree on 24.5.2016.
Reliance of the appellants on rent deed is also misplaced. The said rent deed in favour of appellants for House No,243, H.3, Johar Town, Lahore is dated 30.6.2016, which is also after the judgment and decree passed by the learned Court. The plea of the appellant No,3 that he was out of country at relevant time was never raised before learned Court below, hence this ground cannot be agitated for the first time in appeal. Even otherwise, copies of passport enclosed does not show that when respondent No,3 entered in Pakistan if at all he was out of country.
7. From above discussion, it is evident that address given in the plaint was last known address available with the respondent bank and therefore, appellants were not only served through affixation but also through publication in newspapers. The appellants were bound to file their PLA within 30 days and in case of failure, the Banking Court had rightly passed the decree under section 10 of the Ordinance. The appellants could file application under section 12 of the Ordinance within 30 days to set aside the decree dated 24.5.2016, however, the same was filed on 27.6.2016, beyond the limitation period prescribed under the law. The appellants have also not shown any element of fraud or misrepresentation on part of respondent bank in obtaining judgment and decree dated 24.5.2016, therefore, provision of section 12(2), C.P.C. Was also not attracted.
8. In view of above, no illegality or infirmity is found in the impugned order dated 11.1.2017.
Accordingly, this appeal is dismissed in limine.