UNITED BANK LTD vs Messrs S. G. RAUF AND COMPANY and 2 others

1. ' C.M.A. No,3806 of 1987 is an application under Order 37 Rule 3, C.P.C. For leave to defend. It is not accompanied by an application under section 5 of the Limitation Act. Hence a preliminary objection has been taken to this application by Mr.Noorul Hassan, learned counsel for the plaintiff that it is barred by limitation having been presented after 10 days of the service of summons.

2. ' From the perusal of the record it appears that the summons of this suit were published in an English newspaper 'MORNING NEWS' dated 10-7-1987. Simultaneously the summons were sent by Registered Post A/D to all the three defendants separately and there is the endorsement of the postman dated 26-7-1987 to' the effect that the same were refused. Simultaneously the summons were also sent through Bailiff and the endorsement of the Bailiff shows that the defendants had received the summons on 18-8-1987. The diary of the Additional Registrar dated 19-8-1987 is reproduced as under:- "19-8-1987 ' Publication issued against the defendants under Rule 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979.. Publication has been received vide circulation in Morning News dated 10- 7-1987.

3. ' Summons issued to these defendants 1 to 3 by bailiff as well as Registered A/D returned served on 18-8-1987. M/s. Liaquat Merchant and Co. Advocates filed power on behalf of defendants Nos.1 and 2.

4. ' Let defendants file application for leave to appear and defend the suit within 10 days from the date of service.

5. ' Adjourned to 1-9-1987."

6. ' Mr.Noorul Hassan has cited a Division Bench decision of this Court in the case of Pak. Insurance Corporation v. Grindlay's Bank Ltd. Reported in 1987 CLC 2164, wherein it was held that where defendant was served with summons by publication on a specified date, application for leave to defend the suit made after 10 days of such publication, would be time-barred.

7. ' Mr. Justice Ahmad All U.Qureshi sitting singly in the case of United Bank Ltd. v. All Habib & Co.

8. Reported in 1988 CLC 292 and some other Judges of this Court in some other cases have dealt with this point and explained the above D.B. Ruling.

9. ' After taking into consideration these two decisions and a number of other decisions of this Court on this point, I am of the clear view that it is the satisfaction of the Court as to whether service by a particular mode was good service or not, which will be the deciding factor. From the diary of the Additional Registrar it appears that he was satisfied about the goodness of service by all the three modes i,e, by publication, by Registered Post A/D and by service through Bailiff. It was argued by Mr.Liaquat Merchant that his satisfaction was the cumulative effect of all the three modes and that he had not specified by which of these modes the defendants were served satisfactorily, therefore, it cannot be said that he had held any particular mode satisfactory and therefore, it is wrong to conclude that the service by publication was held satisfactory by the Additional Registrar. I am not impressed by contention of Mr.Liaquat Merchant. From the above order it is quite clear that the Additional Registrar had not held that service by publication or by Registered Post A/D was unsatisfactory. Hence even if service by publication was considered to be somewhat loose, then also the service by Registered Post A/D was good being accurate and precise. Sub-rule (2) of Rule 10-A of Order V, C.P.C. Makes it quite clear that an endorsement by a postal employee that the defendant refused to take delivery of the summons by Registered Post A/D shall be deemed by the Court issuing the summons to be a prima facie proof of service of summons. Hence I am satisfied that the defendants were served by Registered Post A/D on 26-7-1987, so also by publication dated 10-7-1987. The application is, therefore, clearly time-barred. The defendants' counsel has not made any application under section 5 of the Limitation Act and therefore, the question of condoning delay does not arise. Hence C.MA. No,3806 of 1987 is dismissed.

10. ' The effect of dismissal of the application is that the suit is decreed for the sum of Rs,1,88,04,471.71 against the defendants jointly and severally with interest @ 14% p.a. With quarterly rests from the date of filing of the suit till recovery. A preliminary decree is passed in Form V-A Appendix 'D' of the 1st Schedule for the mortgaged property. If the decretal amount is not paid within 6 months, final decree of the sale of mortgaged property shall follow. If the sale proceeds of the mortgaged property fell short of the decretal amount, the plaintiff is at liberty to proceed against the defendants according to law. The costs of the suit shall be borne by the defendants.