PAKLIBYA HOLDING Co. (Pvt.) Ltd. vs SUALEHEEN S. PIRACHA

' This is a suit under the Banking Companies (Recovery of Loan) Ordinance, 1979, for Rs,76,85,809.43 with interest at the rate of 14 per cent per annum with quarterly rest from 16-7-1986 till payment.

2. Summons was issued to the defendant in modes prescribed under Rule 8 of the Banking Recovery of Loan Rules, 1980, framed under the Ordinance. On 14-11-1986, publication of summons took place in the daily Morning News, Karachi, but the defendant could not be served by other modes. On 11-8-1987 the Additional Registrar held service by publication on the defendant good. It was also ordered that since the defendant had also refused to accept the summons, summons may be pasted on his last known address, which took place subsequently.

3. On 12-10-1987 the defendant filed C M A No,4444/87 being an application under Order 37, rule 3, C.P.C. For leave to appear and defend the suit. Another application bearing C.M.A. No,4379/88 under Section 5 of the Limitation Act for condonation of delay in filing CMA No,4444/87 was filed by the defendant on 15-8-1988.

4. On the face of it, the plaintiffs application for leave to defend is time- barred, I will, therefore, first take up C.M.A.-4379/88 under Section 5 of the Limitation Act and if it is allowed by me, the former will be considered on merits.

5. In the affidavit accompanying the defendant's application under Section 5 of the Limitation Act, it is alleged that the Plaintiff was fully aware at the time of filing the suit that the defendant's show room at first floor Mahboob Chambers, Abdullah Haroon Road, Karachi, was closed for almost three years and the defendant had been maintaining an office on the third floor of the building. In spite of this, the plaintiff got the summons issued on the wrong address. It is also denied by him that the bailiff ever brought to him the summons in the suit which he refused to accept. It is further contended by him that he does not read the Morning News and, therefore, he was not aware of the publication of the summons in that newspaper. It was on 7-10-1987 that his Sales Representative visited the office of the Plaintiff and was informed by the dealing official of the Plaintiff that the present suit had been filed against him. Therafter, he came to the Court and discovered that the summons was served on him by affixation and the suit was fixed on 12-10-1987 when the defendant also filed the said application bearing C M A-4444/87 for leave to defend the suit. It is, therefore, urged by the learned counsel for the defendant that there is sufficient ground for condonation of delay in filing C M A-4444/87.

6. In the counter-affidavit the Attorney of the Plaintiff has opposed the application stating that the defendant was duly served by publication on 14-11-1986 as per rule made under Banking Companies (Recovery of Loan) Ordinance, 1979, and the contention of the defendant that he does not read the daily Morning News is untenable in law. Reference is also made by him to the bailiff's report dated 11-8-1987 which states that the defendant had refused to accept service of summons through him. It is also denied that the Plainitiff had closed his office. In any case it is urged that the defendant did not intimate any change of address to the Plaintiff. In support reference was also made to PLD 1990 SC 497 wherein it was held that if service is effected by one or more modes of the service provided for in Rule 8 of the Banking Companies (Recovery of Loans), Rules, 1980, it is good service. In the present case it is urged that service was first effected by publication as far back as 14-11-1986, then on 11-8-1987 by bailiff and lastly on 22-9-1987 by affixation of Court notice.

7. It is evident that there had been inordinate delay on the part of the defendant in filing his application for leave to appear and defend the suit under Order 37, rule 3, C.P.C. In Ahmed Autos v.

Allied Bank of Pakistan Limited reported in PLD 1990 SC 497 it was held that service in any of the three modes prescribed under Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 is good service. The defendant has failed to substantiate that there was any just cause for not filing his application under Order 37, rule 3, C.P.C. Within the statutory period of ten days. I agree with the learned counsel for the plaintiff that service on the defendant has been affected in different modes and the defendant has failed to furnish any plausible explanation for such long delays. Under the law a defendant is required to give explanation for each day's delay A which the defendant has failed to do. Hence C.MA. No, 4379/88 has no merit and is hereby dismissed. Resultantly, C.MA.

4444/87 under Order 37, Rule 3, C.P.C. Is also dismissed and the suit is decreed in terms of Order 37 Rule 2 (2) C.P.C. As prayed.