Messrs WAQAS ENTERPRISES and others vs ALLIED BANK OF PAKISTAN and 2

' MUNAWAR AHMED MIRZA, J.---This petition for leave to appeal is directed against the judgment dated 21-11-1996 passed by Lahore High Court in F.A.O. No,113 of 1989.

' Relevant facts briefly mentioned are that Allied Bank of Pakistan, respondent No,1 herein, on 23rd February, 1988 instituted suit for recovery of Rs,8,55,716.50 alongwith mark-up against the petitioners and respondents Nos.2 and 3 before Banking Tribunal, Lahore. On first date of hearing, the Banking Tribunal issued process in accordance with prescribed procedure. Respondent Abdul Bari had appeared and contested the proceedings whereas the petitioners and respondent No,3 remained absent. After considering the evidence brought on record by respondent-bank and contesting defendant, the suit was decreed by means of judgment dated 10th July, 1988.

3. It may be seen that during pendency of proceedings petitioners approached the Banking Tribunal and submitted an application on 9th of July, 1988 praying for setting aside ex parte order.

However, on 11th July, 1988 another application seeking setting aside of ex parte decree was moved by the petitioner mainly on similar ground. The Banking Tribunal considering the material and affidavits submitted by parties eventually rejected this application vide order dated 19th March; 1989. Petitioners had challenged the above decisions before Lahore High Court through FAO No,113/1989, which was dismissed by means of judgment dated 21-11-1996, operative portion whereof is reproduced below:-- "13. Learned counsel for the appellants next objected to the procedure adopted by the Tribunal for disposal of the application for setting aside the decree by arguing that the appellants should have been allowed an opportunity to lead evidence to prove the averments made in the application, as according to the learned counsel a duty was cast upon the Tribunal to find out whether or not service had been effected in accordance with law. We are surprised by this submission. The Tribunal had framed the relevant issues. The parties themselves stated that they did not wish to produce any evidence but instead would rely upon the affidavits filed by them. Having themselves agreed to this procedure it does not lie in the mouth of the appellants to raise any objection subsequently.

14. Be that as it may, there are indications on the record to show that the appellants were aware of the proceedings in the suit most important of which being that one of the guarantors of the appellants and admittedly received the process and had also appeared before the Tribunal. As he had been sued as a guarantor and the appellants as principal debtors on receipt of the notice the natural reaction of the guarantor would be to establish contact with the person on whose behalf he had furnished the guarantee.

15. In order to satisfy ourselves about the bona fides of the appellants we have asked the learned counsel to show us the prejudice that was caused to the appellants on account of ex parte proceedings against them. We also indicated our willingness to examine the defence to the suit itself which according to the appellants, they would have set up if an opportunity was given to them. Learned counsel for the appellants has not been able to render any satisfactory answer and did not dispute the receipt of the loan. From this fact also we are of the view that only intention in filing the application for setting aside ex parte proceedings is to delay the proceedings."

4. Mr. Farooq Zaman Qureshi, Advocate Supreme Court, learned counsel for petitioners strenuously urged that service upon petitioners was never effected. Besides, no opportunity has been afforded at any stage to substantiate this aspect, therefore, entire proceedings drawn by Banking Tribunal against petitioners are devoid of lawful authority. It was argued that the petitioners had never obtained any amount from the bank nor executed documents or opened any letter of Credit, therefore, according to him, decree had been passed against the petitioners contrary to facts and law. It was stressed hard that Courts below have completely misread the evidence and misconstrued the legal position, causing serious detriment to petitioners.

5. Kh. Saeeduz Zafar, Advocate Supreme Court, learned counsel for respondent No,1 led us through documents, which were executed by petitioners and showed signatures, which had been affixed by petitioner Ashfaq Hussain on said documents. Learned counsel maintained that admitted signatures on record, completely tally with those signatures which appear on various documents forming basis for passing decree dated 10-7-1988 by the Banking Tribunal. It was argued that parties were allowed full opportunity to lead evidence and their respective affidavits were taken into consideration, while deciding application concerning setting aside of decree. Our attention was also drawn to the concluding portion of impugned judgment, which indicated that receipt of loan from the bank was not disputed by petitioners.

6. We have minutely examined the entire record in the light of arguments advanced before us by learned counsel for parties. The order sheets pertaining to proceedings recorded by Banking Tribunal clearly reveal that notices under section 6 of the Banking Tribunals Ordinance, 1984, were issued and all the methods stipulated by law were adopted. The proclamation had been duly made in the newspaper 'Daily Nation' dated 19-4-1988. During proceeding pertaining to setting aside of ex parte decree, petitioners were contended with filing of affidavits. It is pertinent to mention that Ashfaq had appeared before the Banking Tribunal on 7-2-1989 and gave following statement: "I produce affidavit Exh. A.1 and rely on the affidavits already filed with the application and the material on the file. I close the evidence of the applicant."

' Subsequent grievance endeavouring to display failure of providing opportunity to lead evidence, are ostensibly misconceived and contrary to record.

7. It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature alongwith other relevant material to effectively resolve the main controversy. We, therefore, carefully went through this process and compared documents attributed to have been executed by petitioner Ashfaq Hussain with his admitted signatures on record, which obviously had complete similarity and tallied with each other. The other evidence on record also negated the stand of petitioner as regards merits. When learned counsel for petitioners was confronted with aforesaid situation he felt great difficulty in disputing this factual aspect.

Now keeping in view above discussion, opinion formed on the basis of comparison of signatures and scrutiny of preponderant material on record we are satisfied that impugned judgment does not suffer from any impropriety or legal infirmity.

' For the above reason, this petition has no merits accordingly same is dismissed and leave refused.