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Petitioner: EMIRATE BANK INTERNATIONAL VS Respondent: Messrs UNITED GROUP OF COMPANIES
Court Name: Sindh High Court Judge(s): Mushtaq A. Memon Title: EMIRATE BANK INTERNATIONAL vs Messrs UNITED GROUP OF COMPANIES Case No.: Suit No,718 of 1987 and Civil Miscellaneous Application No,2436 of 1991 Date of Judgment:1998-01-07 Reported As: 1998 CLC 743 Result: Suit decreed
Judgment ORDER ' By this order I propose to dispose of, Civil Miscellaneous Application No,2436 of 1991 preferred by the defendants Nos.2, 3, 6, 8 to 11, 15, 17 and 18 under section 5 of Limitation Act with the prayer that 10 days' period provided under Article 159 of the Limitation Act is not applicable to the present matter, and in the alternative, delay in filing the applications for leave to defend the suit filed by the said defendants be condoned. In the application, it is urged that the summons were published in daily Morning News of 30th October, 1987 and the said defendants did not subscribe nor read the said Newspaper. Secondly, it is urged that the summons were issued in the form prescribed for proceedings under Order XXXVII, C.P.C. And did not show that the proceedings had been filed under the Banking Companies (Recovery of Loans) Ordinance, 1979. Thirdly, it is urged that proceedings under Order XXXVII, C.P.C., can be filed only on the basis of negotiable instruments and the present proceedings are not based on any instrument, as above. Additionally, it is urged that copy of the plaint was not attached with the summons published in the newspaper and, therefore, the service was bad in law and in fact. Fourthly, it is urged that the defendants Nos.1 to 6, 8 to 11, 15, 17 and 18 came to know of the institution of the suit when Yaqoob Ahmed, a Group Employee of defendants Nos.1, 9, 10 and 11 visited the Court and upon finding that the suit had been filed, had obtained the summons whereafter application for leave to defend was filed within 10 days. As regards defendant No,3, it is stated that the summons were received on 16-11-1987 directly. The application is supported by seven affidavits including one sworn by the above-named Yaqoob Ahmed who has stated that on 16-11-1987 he had visited the Court in connection with other cases of defendants Nos.1, 9, 10 and 11 and upon coming to know about the present suit, had obtained summons from the bailiff and delivered them to the defendants.
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2. It may be noted that the above proceedings were instituted on 3-8-1987 under summary chapter under the Banking Companies (Recovery of Loans) Ordinance, 1979 read with Order XXXVII, C.P.C., for the recovery of Rs,57,688,449.18 with interest thereon. The defendants Nos.1, 2, 6, 8, 9, 10, 11, 15, 17 and 18 filed applications seeking unconditional leave to defend the suit on 12-11-1987 whereas defendant No,3 filed similar application on 25-11-1987. On 23-2-1993, the office was directed to put up a comprehensive note giving details as to dates on which summons by registered post and through bailiff were issued, dispatched and returned with the remarks of the bailiff and postal authorities on them in order to decide applications for leave to defend filed on behalf of defendants Nos.1, 2, 3, 6 to 11, 15, 17 and 18. In pursuance of such order the office has reported that the summons were issued in all the three modes on 22-10-1987. The summons were received on behalf of the said defendants by one Yaqoob on 22-11-1987 when he had approached the bailiff himself. The publication was effected in the daily Morning News, dated 30-10-1987 whereas the summons sent through registered post A/D were returned undelivered with the remarks by postal authorities as 'left'. I have perused the report of the bailiff and find that the summons were collected by the said Yaqoob on 2-11-1987 on behalf of defendants Nos. 1, 2, 6, 8 to 11, 15, 17 and 18. The report further shows that the summons was served on defendant No,3 at his given address on 16-11-1987. Even in the affidavits-in-rejoinder submitted by the defendant No,2 on .Behalf of defendant No,9, the defendant No,3 on behalf of defendants Nos.10 and 11 have mentioned the same, date i,e,, 2-11-1987 when the summons were received by the Group Employee Yaqoob from the bailiff. It is pertinent to note that the defendant No,3 who is stated to have received summons from the bailiff on 16-11-1987 has filed affidavits on behalf of defendants Nos. 10 and 11 as the Director and had signed Vakalatnama of the learned counsel representing the defendants Nos.10 and 11 on 12-11-1987. Such defendant evidently had knowledge of proceedings and I propose to discuss the effect of such knowledge acquired by the defendant No,3 separately hereafter. 3. At the time of hearing, the learned counsel for the applicants/defendants has referred to section 22(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, hereinafter referred to as 'the Act XV of 1997', which is to the following effect: "22.---(1) Subject to subsection (2), the provisions of the Limitation Act, 1908 (Act IX of 1908), shall not apply to any suit, application or other proceedings filed or transferred to a Banking Court under this Act." ' On the basis of above provisions the learned counsel submits that the application under section 5 of the Limitation Act has become infructuous and the matter may, therefore, be posted for consideration of applications seeking leave to defend the proceedings. As regards the applications for leave, it is urged that by virtue of section 9(8) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, hereinafter referred to as the 'Ordinance XXV of 1997', all the applications for leave to defend are to be deemed as replies filed under subsections (2) and (3) of the said provision. The learned counsel has candidly submitted that Article 159 of the Limitation Act was earlier applicable to the applications for grant of leave on account of reference to Order XXXVII, C.P.C., contained in section 7(2) of the 1979-Ordinance. Reference in this respect was made to the judgment in National Bank of Pakistan and another v. Emirates Bank International Ltd., Karachi (1993 SCM R 931). As regards the contention relating to form of summons, the learned counsel has referred to Order 48, Rule 3, C.P.C., and to passage from the Treaties Understanding Statutes by S.M. Zafar at page 140 to contend that forms are merely guides and may be used with adaptations. The learned counsel, however, has vehemently urged that section 22(1) of Act XV of 1997 applies retroactively to all the cases transferred for hearing under Act XV of 1997. The only exclusion, according to the learned counsel, is that the decided cases cannot be re-opened by reference to the said provisions. It is further urged by the learned counsel for the defendants that section 8 of Act XV of 1997 specifically permits re-opening of the decided cases which would apply
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as exception to the general rule and lend support to the fact that section 22(1) is intended to operate retrospectively. According to Mr. Arfin by virtue of section 22 of Act XV of 1997, the provisions of the Limitation Act, 1908 do not apply to any suit, application or proceedings filed before or transferred to a Banking Court. It is further contended that the present proceedings are being heard by this Court as a Banking Court within the meaning of section 2(b) of Act XV of 1997 and the law of limitation having been made inapplicable, the period prescribed for filing an application for leave to defend in terms of Article 159 of the Limitation Act also extinguishes and the application for leave to defend is required to be considered on merits alone. The learned counsel for the defendants has urged that the use of word ' any' in section 22 of the 1997 Act enlarges the scope and the words ' suit, application or other proceedings' have to be given wide and liberal meaning. Reliance in this respect is placed on Shaheen Air Port Service v. Sindh Employees' Social Security Institution (1994 SCM R 881). According to the defendant's counsel, section 22(1) of Act XV of 1997 cannot be restricted in its application to the cases falling under the Banking Tribunals Ordinance, 1984 alone, section 12 whereof had made Limitation Act inapplicable. 4. In reply, Mr. Sajid Zahid has urged that vested rights accruing in favour of a party cannot be taken away except through express legislation. On such basis it is urged that upon failure of the defendants in applying for grant of leave to defend the proceedings, the plaintiff became entitled to decree by virtue of section 7 of 1979-Ordinance read with Order XXXVII, Rule 2, C.P.C. Such right(s) is not effected by section 22(1) of Act XV of 1997. It is further urged that the said provision of Act XV of 1997 did not extend to the proceedings initiated under the 1979-Ordinance, like the present matter. In support of his first submission, the learned counsel has placed reliance upon judgment of Hon'ble Supreme Court in Trinity Private School and another v. Mumtaz H. Hidayatullah and others (1997 SCM R 494). 5. It may be noted that the provisions of the 1979-Ordinance, on its own did not prescribe any time for filing application for leave to defend. However, by virtue of section 7 read with section 3 of the Ordinance, an application for leave to defend was found to be covered by Article 159 of Schedule to the Limitation Act, hence required to be filed within 10 (ten) days from the service of summons. Such view was expressed by a Single Bench of this Court (Mamoon Kazi, J., as he then was) in Suit No,67 of 1987 holding that the provisions of Article 159 of the Limitation Act are to be read in conjunction with Form 4 in Appendix 'B', C.P.C. Which is applicable to all suits filed under Order XXXVII, C.P.C., consequently, Article 159 should equally apply to suits, filed under section 7(2) of the 1979-Ordinance. 6. The contention of Mr. Arfin is two-fold. Firstly, by reference to sections 7 and 9 of the 1997-Act, it is urged that the present proceedings have to be continued from the stage it had reached under the 1997-Ordinance. It is contended that by virtue of section 9(8) of the 1997-Ordinance, all applications for leave to defend pending in the proceedings filed earlier were to be treated as reply under section 9(2) and (3) thereof. Secondly, it is urged that the language of section 22(1) of the 1997-Act, by clear intendment had rendered the provisions of the Limitation Act inapplicable for leave to defend had created a vested right, the same could and has validly been taken away through section 22(1) of the 1997-Act. 7. The question that arises next is as to whether such interpretation of section 22 of the 1997-Act is permissible in law and if so, the provision is intra vires the legislative competence. It is true that the Law of Limitation is procedural in nature and should normally be applied as existing on the date of institution of suit or proceedings and, thus, is applied retrospectively. However, it is an established position that when retrospective application of a Statute results in disturbance and impairment of vested rights or inflicts such hardship or injustice as could not have been within the contemplation of the law-maker, the Statute is not to be construed retrospectively. Such position is duly laid down in the case of Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 197. It may be noted that by application of
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the Law of Limitation, some title'in the property may have been acquired or a right to sue may have become barred under an earlier Act or provisions, change of Law of Limitation cannot weaken the title so acquired or revive the right to sue which had become barred. I am supported in this view by an old judgment of the Privy Council in Appaswami v. Subramaya Odayer AIR (1888) 12 Madras 26 (PC) wherein it was held that the repeal or amendment of a statute of limitation does not apply to a claim already barred by the statute, because by lapse of the statutory period, the rights of the parties have become vested. In the event of possible impairment of vested rights, the law applicable to a suit or proceedings is the one in force at the date of institution of the suit. The pending proceedings have to be governed by the provisions that were in force at the time of its institution and not by the provisions of subsequent statute coming into operation during its pendency. Such proposition finds support from judgment in Palai Central Bank v. K. Joseph Augusty (AIR 1966 Kerala 121). In the present case the language employed in section 22(1) of 1997-Act evidently, does not affect barred rights in express words. In my view section 22(1) of the 1997-Act does not contain any provision so retrospective in effect as to revive and make effective a barred right. If a remedy becomes barred under the Law of Limitation in force, a subsequent change in or repeal of the Law will not by itself, in the absence of a very clear language, revive, or rather re- create the remedy. The particular remedial right stands extinguished and the substantive right, if any, and the procedure for its enforcement is rendered ineffective. Indeed, by virtue of proviso to subsection (2) of section 22, a clear right has been created affording fresh cause of action for institution of proceedings after promulgation of the Act. It may further be noted that the right to apply for leave to defend is dependent upon institution of proceedings and once accrued; it becomes barred by application of the then prevalent law of Limitation resulting in creation of a vested right in favour of the plaintiff. Such view finds support in the case of Bank of India Ltd. v. Muhammad Ashraf and others (PLD 1965 Kar. 69). 8. In support of the principle that the Law of Limitation is not always procedural and cannot affect the barred and extinguished rights, the following judgments are relevant:--- (1) Indurai Bhaurai Desai v. Shivlal Nabhubhai (AIR 1925 Bombay 339). (2) Raghunadan Misra v. Mahadeo and others (AIR 1993 Oudh 38(2). (3) M. Krishnaswa mi Naicker v. Thiruvengada Mudaliar and another (AIR 1935 Madras 245). (4) Pearey Lal and another v. Solu Gir (ILR 1945 Allahabad 896). (5) Pitambar Mohapatra v. Lakshmidar Mohapatra and others (AIR 1949 Orissa 64). (6) Mangapathi Naidu v. M.K. Krishnnaswami Naidu and others (AIR 1950 Madras 762). (7) KM. KR. KR. Ramanathan Chettiar by Partner K.M. KR. KR. Lakshmanan Chettiar v. N.M. Kandappa Goundan and others (AIR (28) 1951 Madras 314). 9. In the first case a suit was filed in 1916 for redemption and recovery of possession of property mortgaged in June, 1761. Upon finding that the first Limitation Act IX of 1871, applied to the mortgage, it was held that the right to sue was barred by the Act IX of 1871 and the mortgagor's right to the land was also extinguished. Resultantly, cause of action could not be claimed to have been revived by virtue of Article 148 of the Limitation Act, 1908. 10. In the second case mortgage was created in 1890 by conditional sale and after non-payment of debt by the stipulated time, mortgagee sold the property with possession to a third party in the year 1896. In 1931 suit for redemption of the mortgaged property was filed which was resisted on the ground that the claim was barred under Article 134 of the Limitation Act, the period of limitation being 12 years prior to amendment introduced by Act I of 1921. The objection raised in defence was upheld by holding that "The Law of Limitation is not always a law of procedure, that is to say, a purely objective law; for amongst its other consequences it as the creation of rights prescription; and if those rights have vested in individuals under one law of limitation, they cannot be divested by the introduction of a new law of limitation, or an amendment in the law".
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11. In the third case, the plaintiff whose right to sue for money had become enforceable by lapse of time had sought to base his claim on amendment of section 20 of the Limitation Act which became effective from 1st January, 1928 and upon consideration of the facts and law, it was held that "the statute of limitation, being a law of procedure, is generally retrospective in its operation but there is no provision in the Act so retrospective in its effect as to revive and make effective a barred right". 12. In the next judgment Justice Bidubhusan Malik in a suit for recovery of money on the basis of a bond found "that the right of action which is barred by limitation at the time when the new Act or amendment came into force cannot be revived by the subsequent change in the law". In this case the arguments to the effect that such principle applies to repeals and not to amendments was also repelled by reference to section 6 of the General Clauses Act. 13. In the Orissa case although by drawing distinction between the remedy to recover the debt, the right to recover the same was held to exist, the principle which found favour with the Division Bench hearing the matter was that "the fundamental principle that the law of limitation applicable to a suit is the law prevailing at the time of its institution is subject to this exception that its applicability will not operate so as to revive a right that has been extinguished on account of the pre-existing law of limitation". 14. In the sixth case the same principle was reaffirmed by holding that while it is true that a suit is governed by the provisions of Limitation Act in force when it is instituted but it does not carry sweeping effect and is subject to the condition that the right sought to he enforced had not already been extinguished under the law as it previously stood. 15. In the last case a Division Bench of the Madras High Court while holding that the Law of Limitation being procedural law, its provisions operate retrospectively in the sense they apply to causes of action which arose before their enactment, further found that it was equally well- established that if a right to sue had become barred by the provisions of the Limitation Act then, in force, the barred right is not revived by the application of new enactment. It was further held that rights cannot always be held enforceable in a Court of law on the ground that the same had not extinguished. 16. To the same effect are judgments in: (i) Baijnath v. Dulari Hajjam (1928 ILR (50) Allahabad 865). (ii) S.C. Frashar and another v. Vasantsen Dwarkadas and others (AIR 1963 SC 1356). (iii) Jagdish v. Saligram (1945 ILR (24) Patna 391). (iv) Government of Rajasthan and another v. Sangram Singh and others. (AIR 1962 Rajasthan 43). ' which were cited by the learned counsel for the plaintiff. 17. In the present case, another question which requires consideration is if the time, prescribed for making an application seeking leave to defend having already expired, would stand revived upon promulgation of section 22(1) of the 1997-Act. As already observed, the right to plead limitation which accrues upon lapse of statutory period, is in every sense a right, even though it arises under a statute which is procedural. The principle has quite emphatically been laid down in Maxwell v. Murphy (1957) 90 CLR 261 which was cited with approval by Privy Council in Yew Bon Tev v. Kenderaan Bas Mara reported in 1983 PSC 1200 in the following words: "Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceeding may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a case of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the abridgment might again be classed as procedural. But if the time is enlarged when a
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person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute of whilst he still has time to do so, very different considerations could rise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provided a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights." ' As to what is a vested right, the learned counsel has referred to following passage from the case of Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599): "29. What is a vested right? According to the Oxford English Dictionary, 'vested' means 'clothed, robed, dressed especially in ecclesiastical vestments....Vested rights essentially differ from rights which are contingent....That is, completely created...Vested interests may perhaps be defined as rights based not upon contract but upon custom'. A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine) a witness is a vested right, although the occasions for exercising it arises only if the witness says or has said something unfavourable and often after his examination-in-chief is over. The occasion to cross-examine may not arise or may not be exercised---but the right is not to be denied." 18. Section 22(1) of Act XV of 1997, therefore, in my view does not render the provisions of Limitation Act inapplicable to the cases where the time to apply for leave to defend had already expired. 19. The result, therefore, is that the plaintiff cannot be deprived from claiming benefit under Order XXXVII, Rule 2, C.P.C. Read with section 7(2) of the 1979-Ordinance by stretching the interpretation of section 22(1) of Act XV of 1997. 20. Mr. Sajid Zahid has further argued that the 1979-Ordinance, the Banking Tribunals Ordinance, 1984, Ordinance, XXV of 1997 and Act XV of 1997 are all remedial legislation promulgated with an object to regulate recovery of Bank dues within minimum possible time. The learned counsel has referred to sections 4 and 7 of 1979-Ordinance, section 6(2) and section 12 of the Banking Tribunals Ordinance, 1984 and section 7(6) and (7), section 8(1), section 9(3) and section 10 of Act XV of 1997. For the sake of reference the provisions referred by the learned counsel are reproduced hereunder: A. Sections 4 and 7 of the 1979-Ordinance: "4. Securing and repayment of loan due on the commencing day.---(1) This section applies only to loans outstanding on the commencing day. (2) A loan or part thereof outstanding on the commencing day shall, unless secured or repaid earlier, be secured and repaid as provided in this section notwithstanding the fact the period of limitation within which a suit for the recovery of the loan or part thereof could have been or may be filed, expired or expires on or after the first day of January, 1974. (3) Where, in the opinion of a banking company, a loan was, or has become or is discovered to be, unsecured or insufficiently secured, the borrower shall provide sufficient security therefore, within (ninth) days from the date of the notice served by the banking company on the borrower in any of the under mentioned modes, namely, by being--- (a) given or tendered to him, or (b) sent by registered post to his last known address on the record of the banking company, or (c) affixed on a conspicuous part of his last address known to the banking company, or (d) published in a newspaper.
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(4) Where a loan is not, or has not become, sufficiently secured under subsection (3), the banking company may apply to the Special Court for attachment of so much of the property of the borrower as is equal in value, with reasonable margin, according to banking practice to the outstanding amount of the loan. (5) Where the loan is, or has become, sufficiently secured under subsection (3), the outstanding amount shall, unless a different schedule of repayment is drawn by the bank, be repaid in accordance with the schedule of repayment agreed to at the time of sanction of the loan. (6) The decision of the bank in fixing the schedule of repayment under subsection (5) shall not be questioned in any Court. "Section 7. Procedure of Special…
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