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Petitioner: RAHEEL IKHLAS VS Respondent: Messrs CITIBANK N.A.Honorable Justice Naseem SikandarS. Abid Mumtaz Tirmazi,Ashar Elahi
2002 C L D 1102
2002 C L D 1102
[Lahore]
Before Naseem Sikandar and Muhammad Sair Ali, JJ
RAHEEL IKHLAS‑‑‑Appellant
versus
Messrs CITIBANK N.A. ‑‑‑Respondent
First Appeal from Order No.408 of 2001, decided on 21st March, 2002.
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑
‑‑‑‑S.12‑‑‑Ex parte decree, setting aside of‑‑‑Service to defendant not denied‑‑‑Defendant was served personally as well as through citation in newspaper‑‑‑Suit was decreed ex parte by the Banking Court due to non‑appearance of the defendant‑‑‑Application under. S.12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to set aside the ex parte decree was dismissed by the Banking Court‑‑‑Validity‑‑‑Where the defendant was served through personal service and served through citation as well, the Banking Court was justified in remarking that personal service having not been denied in the petition the petitioner could not approach that Court' under S.12 of the Banking Companies (Recovery of Loans. Advances, Credits and Finances) Act, 1997.
National Bank of Pakistan v. Tradewell (Pakistan) Corporation and 2 others 1991 CLC 1243; Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Maj. Pervez Shakoor and 4 others v. Muhammad Usman 1991 MLD 536; Nazam Din and others v. Jalal Din and others 1992 MLD 510; Hassan Din and another v. Jalal Din and 2 others 1991 CLC 33; Lt.‑Col. Mohsin Shah v. Mst. Qaseema Wahid and others 1995 MLD 1032; (Col. Retd.) Ashfaq Ahmed and others v. Sheikh Muhammad Wasim 1999 SCMR 2832; Abdul Ghafoor v. Executive Engineer, Rasool Division and 2 others PLD 1988 Lah.180 and Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514 distinguished.
S. Abid Mumtaz Tirmazi for Appellant.
Ashar Elahi for Respondent.
Date of hearing: 19th February, 2002.
JUDGMENT
NASEEM SIKANDAR, J.‑‑‑This first appeal assails an order of the Banking Court‑IV, Lahore, dated 3‑11‑2001 whereby the application made by the present appellant under section 12 of the Banking Companies (Recovery of Loans Advances. Credits and Finances) Act (XV of 1979) was rejected.
2. An ex parte decree of Rs. 1,73,007 was passed in favour of the respondent Messrs Citi Bank on 29‑5‑2001. The present appellant through the aforesaid petition sought setting aside of that decree. Learned Banking Court refused to oblige Inter alia on the ground that the was personally served on 14‑4‑2001 and, therefore. he could not file an application under section 12 of the Act which, according to the learned Court, came into play only when the service was not lawfully effected.
3. It is the case of the appellant that the Banking Court was not justified in summarily rejecting his application. Particularly for the reason that personal service was denied by him. Also that he had alleged payment of all sums due against him to the respondent Bank. In support of his submissions that the learned Judge Banking Court declined his prayer for setting aside of the decree without application of mind and that in the given situation the decree ought to have been set aside, learned counsel relied upon re: National Bank of Pakistan v. Tradewell (Pakistan) Corporation and 2 others (1991 CLC 1243), re: Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 SC 362), re: Maj. Pervez Shakoor and 4 others v. Muhammad Usman (1991 MLD 536), re: Nazam Din and others v. Jalal Din and others (1992 MLD 510), re: Hassan Din and another v. Jalal Din and 2 others (1991 CLC 33), re: Lt.‑Col. Mohsin Shah v Mst. Qaseema Wahid and others (1995 MLD 1032) and re: (Col. Retd.) Ashfaq Ahmed and others v. Sheikh Muhammad Wasim (1999 SCMR 2832).
4. Learned counsel for the respondent, however, supports the impugned order. It is stated that in view of the ratio settled in re: Abdul Ghafoor v. Executive Engineer, Rasool Division and 2 others (PLD 1988 Lahore 180) the impugned judgment and decree cannot be set aside. Secondly, that the assertion of non‑service was necessarily against record, The learned Judge Banking Court having observed that the petitioner was personally served, no application under section 12 of the Act could be entertained at that stage. According to the learned counsel the ex parte decree against the present appellant cannot otherwise be set aside because he had knowledge of hearing and had sufficient time to appear and answer the claim. To support the submission learned counsel relies upon re: Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others (1988 CLC 514).
5. Having heard the parties we are in agreement with the submissions made at the bar by the respondent‑Bank. The assertions against personal service are certainly against record. Also it appears that the petitioner was served through citation as well. The Banking Court appears justified in remarking that personal service having not been denied in the petitioner, the petitioner could not approach that Court under section 12 of the Act. In the given situation, therefore, the reliance of the learned counsel on the aforesaid case‑law is hardly of any relevance.
6. Appeal rejected.
Q.M.H./M.A.K./R‑119/L
Appeal dismissed.