Khawaja MUHAMMAD BILAL vs UNION BANK LIMITED through Branch

' MIAN SAQIB NISAR, J.--The appellant was a defendant in a suit for recovery filed by the respondent-Bank in which notices to the appellant were issued under all the mcdes available as per the provisions of section 9(2) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The newspaper publication in the Daily Nation is dated 6-7-2000 whereas in Daily Musawat is 27-7-2000. The appellant did not file any leave application, therefore, an ex parte decree dated 8-9-2000 was passed against which the appellant moved an application under section 12(2), C.P.C. For setting aside the ex parte decree dated 8-9-2000 along with application under section 10 for the grant of the leave as also an application for the condonation of delay. The application to set aside the ex parte decree has been rejected by the learned Banking Court vide impugned order.

2. Learned counsel for the appellant contends that one of the newspapers i.e. Musawat, in which publication was made, is not wide circulated newspaper and thus such publication would not be deemed to have been effected. It is also submitted by learned counsel for the appellant that the appellant was out of country when the publications were made. Therefore, there is no intimation of the institution of the suit and issuance of notice.

3. It is submitted that the proper court-fee had not been paid upon the plaint, thus, it was not a suit in the eye of law. It is stated that parties had agreed for the charge of mark-up at the rate of 14% but in the statement of account the respondent-Bank unauthorizedly and erroneously had charged mark-up at the rate of 20%.

3-A. We have heard the learned counsel for the parties. As far as the question of service is concerned, that according to case titled Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497, the service by any of the modes provided arrd effected under the said law, is sufficient service. In this case not only in one of the two newspapers the notices were published and from the publication thereof the notices would be deemed to have been properly served upon the appellant. We are not convinced that publication in the Daily Musawat, which has no wide circulation, would be an effective service. As regards the question that the appellant was out of country when the Court issued notices, no evidence has been brought on the record in this behalf. So far as the submission that the mark-up has been erroneously charged by the respondent-Bank is concerned, it may be held that as the leave had not been granted to the appellant, the contents of the statement of account as also the plaint deemed to be correct and, resultantly, the Court below has rightly awarded the decree on that basis.

4. The last submission that the suit was deficient qua the court-fee, it may be stated that as per case titled Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 the litigating party cannot raise the question of court-fee in a suit in which deficiency in the court-fee, as ordered by the Banking Court before passing of a decree, was made good by respondent, thus, even if there was a defect that stood cured under the law. No case for interference in the impugned judgment and decree is made out. Dismissed accordingly.