Messrs SAFA TEXTILE LTD. vs Messrs HABIB BANK LTD. and 3 others

ORDER

1. ' The appellant through this appeal has impugned the order dated 2-10-2000 passed by the learned Judge, Banking Court No,III, Karachi in Banking Suit No,1222 of 1993, filed by the respondent No,

1. By the impugned order, the application under section 12(2), C.P.C. Filed by the appellant was dismissed.

2. ' The appeal emanates from the following facts and circumstances:-- ' The respondent No,1 filed suit for recovery of Rs.3,22,6148 under Orders 34 and 37, C.P.C. Read with section 9 of the Banking Tribunals Ordinance, 1984 against Messrs Safa Plastics and its partners namely, Muhammad Jamal Siddiqui, Mrs. Safa Jamal Siddiqui as well as against the appellant, with the facts that the financial facilities were extended to Messrs Safa Plastic against the securities, inter alia guarantees executed by the appellant. The borrower and the guarantor failed to liquidate the outstanding amount of financial facility i.e. The suit amount. The suit was decreed by judgment dated 26-2-1998. The appellant moved an application under section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act No,XV of 1997, (in short the Act) on the ground that no personal service was effected on the appellant. The address of the appellant in title of the plaint was incorrect. The application was resisted by the respondent-Bank. The learned Judge, dismissed the application by order dated 2-10-2000.

3. ' The appellant moved second application under section 12(2), C.P.C. Read with section 151, C.P.C., inter alia, on the following grounds:--

(i) No proper service has been effected upon the appellant.

(ii) The address of the appellant was incorrectly shown in the title of the plaint.

(iii) Annexures I and J of the plaint are two fabricated and forged guarantees shown to have been executed by the appellant.

(iv) The dates of the guarantees are shown as 17-5-1989 and 30-11-1989 were also incorrect.

(v) The seal/stamp affixed is also fabricated.

(vi) The alleged guarantees were not in accordance with the sanction limits.

(vii) The appellant is neither beneficiary nor the guarantor or borrower or customer.

4. ' The above application was also dismissed by order dated 2-10-2000, impugned through present appeal.

5. ' Mr. Saalim Salam Ansari, learned counsel for the appellant's main contention was that the learned Banking Judge erred in dismissing the application on the sole ground that the provisions of section 12(2) are not applicable to the proceedings of Banking Court by following the dictum of Messrs Gold Star International and another v. Muslim Commercial Bank 2000 MLD 421, which is in conflict with the. View taken by the various Division Benches of this Court. He further pointed out that view taken by learned members of the Division Bench of the Lahore High. Court is that under section 21 of Act XV of 1997, subject to the provisions of appeal, the judgment and decree attains finality and cannot be called in question. Act XV of 1997 which is a special law provides the remedies to the parties concerned including the right of appeal under section 21 of the Act and an application in the nature of section 12 of the Act if and when warranted by the circumstances. Since the special law takes care of the various situations itself, application under the general law i.e. Section 12(2) of C.P.C. Would not be competent. To hold, otherwise, would amount to circumvent the provisions of a special law which will erode the verb; object and purpose of the said law.'

6. ' The view expressed by the learned members of the Division Bench of Lahore High Court in case referred to above is in conflict with the view expressed by the members of the Division Benches of this Court in Mian Muneer Ahmed v. United Bank Ltd. PLD 1998 Karachi 278 and Tawakal Export Corporation and others v. Muslim Commercial Bank and another 1997 CLC 1342 that the provisions of section 12(2), C.P.C. Are applicable to decrees passed under the Banking Companies (Recovery of Loans)Ordinance, 1979 and the Banking Tribunal Ordinance, 1984. The same view was reiterated by the learned members of Division Bench in National Bank of Pakistan v. Messrs Khairpur Textile Mills and others 2001 CLC 1187, consisting of Sabihuddin Ahmed and Mushir Alam, JJ., in the following words:- "7. As regards Mr. Gulzar Ahmed's doubts as to the maintainability of an application under section 12(2), C.P.C. It may be observed that under section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, a Banking Court has all powers vested in a Civil Court under the C.P.C. In the exercise of its civil jurisdiction. Section 3 provides that provisions of this Act are in addition to and unless expressly provided not in derogation of any other law for the time being in force. The recent trend of judicial precedent indicates that these provisions are not confined to civil suit before Courts of general jurisdiction strictly covered by the C.P.C. But to different proceedings of a civil nature. In the cases of Mian Muneer Ahmad v. United Bank Ltd. PLD 1998 Karachi 278 and Tawakal Export Corporation and others v. Muslim Commercial Bank and another 1997 CLC 1342, two Division Benches of this Court have held that the provisions of section 12(2), C.P.C. Are applicable to A decrees passed under the Banking Companies (Recovery of Loans)

7. Ordinance, 1979 and the Banking Tribunals Ordinance, 1984. No provision of the 1997 Act (which replaces these two Statutes) has been pointed to indicate that the principle laid down in the above cases would not apply to decrees under this Act. We, therefore, find Mr. Gulzar Ahmad's apprehension to be misconceived."

8. ' The same view was adopted by another Bench of this Court with regard to the maintainability of the application under section 12(2) of the C.P.C. In Banking cases, in Dadabhoy Cement Industries Ltd. v. Messrs N.D.F.C. 2002 CLC 166 and approved by apex Court in Dadabhoy Cement Industries Ltd. v. Messrs N.D.F.C. PLD 2002 SC 500.

9. ' Therefore, we are of the view that learned Judge has not followed the principles of judicial discipline which requires that the law declared by this Court should be unreservedly followed by the Courts subordinate to it, enshrined in Article 201 of the Constitution, he instead followed the view taken by Lahore High Court, which was not a correct approach in case of conflict of views between two High Courts.

10. ' Next question which requires examination, whether the grounds taken by the appellant attract the provisions of section 12(2), C.P.C. Which could be pressed into service on the ground enumerated in subsection (2) viz. Misrepresentation, fraud or without jurisdiction.

11. ' The main ground urged by learned counsel for the appellants in support of the application was that the respondent/ plaintiff by suppressing the fact has obtained the decree on false and defective documents i.e. Guarantees. Mere falsity of a claim to the knowledge of the person putting forward the claim, would not be a ground for setting aside the decree on the ground of fraud. If any reference is required, the case of Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 may be referred, wherein the apex Court has dealt with the proposition in a very lucid manner, in the following terms:-- ' The more important question to be determined in such a case was whether the use of forged document in Court proceedings for obtaining and in fact obtaining a judgment on its basis amounts to fraud or not? We would like to answer this simple question equally simply. Suppose a forged copy of the Court's judgment is used to bar the suit. The suit is held barred on its basis. The defendant had all the opportunity to file a correct/true copy of the judgment. He did not file it in the proceedings. He could challenge the correctness of the copy of the judgment filed in the proceedings. He did not do it. Will these factors preclude him from agitating against the forged judgment by recourse to section 12(2), C.P.C. Or earlier to it by a separate suit. If the falsity of the document was known to the party during the proceedings, then on account of inter parties contest, the party having the knowledge may be precluded from invoking that provision, or earlier to it of instituting a first suit. The law on what is fraud has been correctly stated and the statement is inclusive of the exception as laid down in the case of Mst. Izat, in the following words:-- 'Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the party has deliberately put forward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party.'

12. ' Therefore, we are of the view that the plea of misrepresentation/fraud is not available to the appellant. It may also be observed that the provisions of section 12(2), C.P.C. Would apply if the fraud or misrepresentation is alleged during the proceedings of the suit in Court and not anything done outside the Court.

13. ' For above reasons, the appeal was dismissed in limine on 11-9-2003 being meritless, these are the reasons for short order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.