Shahid Saleem vs Bank Alfalah Ltd.

Stereo H.C.J.D.A.38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

RFA No. 1201 of 2016

Shahid Saleem Versus Bank Al-Falah Limited

JUDGMENT

Date of hearing: 20.11.2018 Appellant by: Ch. Imran Arshad Naro, Advocate.

Respondent/Bank: Mr. Muhammad Asif Ismail, Advocate.

MUZAMIL AKHTAR SHABIR, J: The appellant, who was defendant before the Banking Court, has called in question the judgment and decree dated 24.10.2016 passed by Judge Banking Court-I, Gujranwala, whereby the suit for recovery of Rs.463,643.40/- filed by respondent bank has been partially decreed.

2.It has been argued by learned counsel for the appellant that the impugned judgment has been passed without deciding the PLA filed by the appellant, therefore, the same is not sustainable in the eye of law.

3.Conversely, learned counsel appearing on behalf of respondent Bank submits that the judgment and decree has been passed by taking into consideration all the grounds available to the appellant and the court below has turned down inadmissible claims of the respondent bank while partially decreeing the recovery suit for an amount of Rs.367,651.48/- and in support of his contentions, he relies upon paragraph 2 of the impugned judgment.

4.Heard. Record perused.

Dated 20.11.2018.

5.It has been observed that the suit was decreed on 24.10.2016. In paragraph 1 of the impugned judgment, the court had mentioned that the appellant neither appeared before the said court nor had filed application for leave to defend the suit as per law, therefore, he is proceeded against ex-pare. However, it is evident from the order dated 27.01.2016 that application for leave to defend had been filed on 19.01.2016, a copy of the said application is also available on the file. Even the learned counsel for the respondent bank has also not denied the fact that the said application was filed and was not decided. Consequently, the afore referred observation made by the Judge Banking Court is not based on proper appreciation of the record of the case and without deciding the said application, the case could not have been decided keeping in view the procedure provided in Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and any judgment and decree passed without decision of the PLA is void and not sustainable in the eye of law. Reliance in this regard is placed on the judgment of this Court reported as Iyaz-ul-Haq Chaudhry vs. NIB Bank Limited through Authorized Attorney and 4 others (2016 CLD 1741 (Lahore)). So far as the contention of the learned counsel for the respondent bank that the matter has been decided by the Banking Court after taking into consideration all the available grounds is concerned, suffice it to say that mandatory requirement to decide the PLA before passing the final judgment and decree cannot be ignored by treating the same as a mere technicality. Consequently the said ground has no substance and is turned down.

6.For what has been discussed above, we hold the afore referred judgment and decree as not sustainable in the eye of law and by setting-aside the same, the matter is remanded to the Judge Banking Court-I, Gujranwala for decision of the matter afresh after providing opportunity of hearing to the parties where the application for leave to

Dated 20.11.2018.

defend filed by the appellant shall be deemed to be pending. The Banking Court shall decide the matter expeditiously, preferably within three months from receipt of order of this Court.

7.The appeal is allowed in the foregoing terms.

(AYESHA A. MALIK) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

*Naveed*