Bank Of Punjab vs Rizwan Akhtar etc.

Stereo. H C J D A 38 Judgment Sheet

LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

R. F. A. No. 40 of 2020 / BWP

The Bank of Punjab Versus Rizwan Akhtar & another R. F. A. No. 41 of 2020 / BWP

The Bank of Punjab Versus Bashir Ahmed

JUDGMENT

Date of Hearing: 30.09.2021.

Appellant(s) By: Ch. Riaz Ahmad, Advocate Respondent(s) By: Mr. Muhammad Basit Babar Chaughtai, Advocate for Respondent No. 1 in R. F. A.

No. 40 of 2020 / BWP.

ABID HUSSAIN CHATTHA, J: This Judgment shall decide R. F. A. No. 40 of 2020 as well as connected R. F. A. No. 41 of 2020 involving common questions of law and facts.

2.R. F. A. No. 40 of 2020 was instituted under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”) against the impugned Judgment dated 11.12.2019 and Decree dated 10.04.2020 passed by the Banking Court, Bahawalpur. Precisely, Respondent No. 1 filed a suit for declaration on 03.01.2013 with respect to a leased vehicle, Suzuki Bolan, bearing Registration No. BRS-12-517, Model 2012 leased by Respondent No. 1 from the Appellant Bank by availing the Yellow Cab Scheme under Section 9 of the Ordinance against the Appellant and Respondent No. 2, the concerned Insurance Company. The latter did not contest the suit and was proceeded ex-parte before the Banking Court. The Appellant contested the suit and was granted leave to defend the suit. After trial, the Banking Court vide Judgment dated 11.12.2019 decreed the suit of Respondent No. 1 against the Appellant to the tune of Rs. 164,700/- along with markup @ 8% from the date of institution of the suit till

R. F. A. No. 41 of 2020 / BWP

realization of the amount due. The Judgment was pronounced on 11.12.2019 but as Respondent No. 1 was directed by the Banking Court to make good the deficiency of Court fees, the Decree was not drawn instantly. Accordingly, the Decree was drawn on 10.04.2020 after compliance with the aforesaid direction of the Banking Court. Importantly, the certified copies of the Judgment were applied by the Appellant on 24.01.2020 which were prepared on 20.04.2020 and were collected on 27.04.2020. The Appeal against the Judgment and Decree was filed on 06.05.2020. Respondent No. 2 did not appear before this Court and is accordingly, proceeded ex-parte today.

3.R.F.A. No. 41 of 2020 was instituted under Section 22 of the Ordinance against the impugned Judgment dated 11.12.2019 and Decree dated 13.04.2020 passed by the Banking Court, Bahawalpur. Precisely, the Respondent filed a suit for declaration on 26.10.2016 under Section 9 of the Ordinance with respect to a leased vehicle, Suzuki Bolan, bearing Registration No. KWS-11-1966, Model 2011 leased by the Respondent from the Appellant Bank under the Yellow Cab Scheme. The Appellant contested the suit and was granted leave to defend the suit. After trial, the Banking Court vide Judgment dated 11.12.2019 decreed the suit of the Respondent against the Appellant to the tune of Rs. 564,500/- along with markup @ 8% per annum from the date of institution of the suit till realization of amount due. The Judgment was pronounced on 11.12.2019 but as Respondent was directed by the Banking Court to make good the deficiency of Court fees, the Decree was not drawn instantly. Accordingly, the Decree was drawn on 13.04.2020 after compliance with the aforesaid direction of the Banking Court. Importantly, the certified copies of the Judgment were applied by the Appellant on 24.01.2020 which were prepared and collected on 28.04.2020 by the Appellant Bank. The Appeal against the Judgment and Decree was filed on 06.05.2020. The Respondent could not be served due to change of his residence. Substituted service was dispensed with today and the Respondent is proceeded ex-parte as the Appeal is being decided with the other connected Appeal based on common questions of law and facts.

R. F. A. No. 41 of 2020 / BWP

4.At the very outset of hearing of these Appeals, learned counsel for Respondent No. 1 in R. F. A. No. 40 of 2020 raised a preliminary objection as to the maintainability of these Appeals. He submitted that the Appeals are barred by limitation under Section 22(1) of the Ordinance, if the period of 30 days is reckoned from the date of Judgments, excluding the period consumed in obtaining the certified copies of the Judgments and as such, are liable to be dismissed. Conversely, learned counsel for the Appellants contended that the Appeals are within time, if the period of 30 days is reckoned from the date of Decrees, excluding the period consumed in obtaining certified copies of the Decrees and as such, the dates of Judgments are irrelevant since Appeals could not have been filed against Judgments without Decrees. From the dates mentioned above, it is explicitly clear that the instant Appeals against the impugned Judgments were barred by time but against the impugned Decrees were within time. The factual position as aforesaid was conceded by both the learned counsels. Learned counsel for the Appellant, however, stated that since the Appeals are accompanied by an application under Section 5 of the Limitation Act, 1908 (the “Limitation Act”), therefore, the delay, if any, in filing the Appeals against the impugned Judgments may be condoned. In rebuttal, it was averred that the Limitation Act is not applicable to Section 22(1) of the Ordinance.

5.The following questions were framed requiring determination of this Court:-

(i)Whether an Appeal filed beyond the period of 30 days from the date of Judgment is barred by limitation, notwithstanding that an Appeal against Decree is filed within 30 days from the date of Decree under Section 22(1) of the Ordinance?

(ii)Whether the Limitation Act is applicable to the provisions of the Ordinance in general and Section 22(1) of the Ordinance in particular to condone delay?

R. F. A. No. 41 of 2020 / BWP

6.The queries raised above are answered, in seriatim, in the following paragraphs. It is imperative to analyze and examine the scheme of the law enshrined in the Ordinance which undoubtedly is a special law promulgated with the objective to provide a specialized legal forum to resolve disputes between a ‘customer’ and a ‘financial institution’ regarding or emanating from a ‘finance’. In an attempt to achieve the desired purpose, the legislature consciously provided special procedures governing the proceedings right from the institution of the suit to its culmination into the execution of the relief provided including the remedies available to the contesting parties during the proceedings. It would be beneficial to first reproduce Section 22(1) of the Ordinance for ready reference as the scheme of law encapsulated in the Ordinance would then be deciphered to understand its true import, context and perspective.

“Subject to sub-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final Order prefer an appeal to the High Court.”

7.From the bare perusal of the aforesaid provision of law, it is manifest and unequivocally clear that each term, “Judgment” or “Decree” or “Sentence” or “Final Order” has been used in it separately and independently. None is dependent upon the other. It follows that any Judgment or Decree is required to be appealed against within 30 days either from the date of such Judgment or from Decree since the Ordinance allows and permits filing of an Appeal against both the Judgment and the Decree independently and separately. The Judgment is not dependent upon the passing of the Decree or conversely, an Appeal can be filed without a Decree. The Ordinance is a special law and as per Section 4 of the Ordinance, the provisions thereof shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

8.The terms, “Judgment” and “Decree” have been used and employed both independently and jointly in various provisions of the Ordinance. For instance, Section 10(1) of the Ordinance provides that

R. F. A. No. 41 of 2020 / BWP

if the defendant fails to obtain leave to defend from the Banking Court, the allegation of facts in the Plaint shall be deemed to be admitted and the Banking Court may on the basis of contents of the Plaint or such other material as the Banking Court may require in the interest of justice, pass a “Decree” in favour of the plaintiff. In contrast, Section 10(12) of the Ordinance stipulates that where the application for leave to defend is rejected or where a defendant fails to fulfill the conditions attached to the grant of leave to defend, the Banking Court shall forthwith proceed to pass “Judgment and Decree” in favour of the plaintiff and against the defendant. Further, under Section 11(1) of the Ordinance, the Banking Court is empowered to pass an “Interim Decree” in respect of part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff. Importantly, Section 11(2) of the Ordinance further provides that the “Interim Decree” passed as aforesaid shall for all purposes including Appeal and Execution, be deemed to be a “Decree” passed under this Ordinance and any amount recovered thereby, or recovered in execution thereof, shall be adjusted at the time of the “Final Decree”. This “Interim Decree”, notwithstanding the pendency of any Appeal, is subject to modification at the time of final disposal of the suit and the Banking Court may pass such order as it may deem just and proper. Similarly, Section 12 of the Ordinance deals with the power of the Banking Court to set aside a “Decree” which is passed under Section 10(1) of the Ordinance, that is to say, the “Decree” passed on the basis of allegation of facts in the Plaint which by fiction of law is deemed to be admitted and include the “Ex-parte Decree”. Section 13(1) of the Ordinance, which relates to disposal of the suit also uses the expression “Interim or Final Decree” without reference to the term “Judgment”. Section 14 of the Ordinance is with respect to any suit relating to mortgages and provides that where the suit is filed for the enforcement of a mortgage of an immoveable property, the Banking Court will not be required to pass a “Preliminary Decree” as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (the “CPC”) but shall directly pass an “Interim or Final Decree” for

R. F. A. No. 41 of 2020 / BWP

foreclosure or sale. Interestingly, Section 16 of the Ordinance deals with “attachment before Judgment” and grants powers to the Banking Court to pass various orders within the scope and mandate of that Section. Conspicuously, Section 16(4) of the Ordinance stipulates that nothing contained in sub-sections (1) to (3) of Section 16 of the Ordinance shall affect the powers of the Banking Court under Order XXXVIII, Rules 5 and 6 of the CPC to “attach before Judgment” any property other than any property mentioned in Section 16(1) of the Ordinance. Section 17 of the Ordinance provides for passing of the “Final Decree” by the Banking Court. Section 19 of the Ordinance spells out a procedure with respect to execution of the “Decree” and sub-section (1) thereof begins with the expression, upon pronouncement of “Judgment and Decree” and further states that the case will be heard by the Banking Court for execution of its “Decree”. In the rest of Section 19 of the Ordinance, the term “Decree” singly is employed for a number of times. Section 21 of the Ordinance also provides that an “Order” with respect to imposition of fines and costs shall be deemed to be a “Decree” passed under the Ordinance for the purpose of execution. Section 23(2) of the Ordinance also uses the terms “Interim Decree” and pronouncement of “Judgment and Decree” separately. Finally, Section 27 of the Ordinance stipulates that subject to the provisions of Section 22 (Appeal), no Court or other authority shall revise or review or call, or permit to be called, into question any “Proceeding”, “Judgment”, “Decree”, “Sentence” or “Order” of the Banking Court.

9.It is, therefore, quite evident that the scheme of law encapsulated in the Ordinance uses the terms “interim Decree, “Final Decree”, “Decree”, “Judgment”, “Order” and “Final Order” at times independently or separately and at times in unison or conjointly to enunciate and declare various powers of the Banking Court. From the scheme of the law, it transpires that the term “Decree” wherever employed in the Ordinance includes the terms “Interim Decree” or “Final Decree” unless mentioned specifically as “Interim Decree” or “Final Decree” in the peculiar context independently. Similarly, the

R. F. A. No. 41 of 2020 / BWP

term “Order” includes the terms “Interim Order” or “Final Order” unless the latter two terms are employed independently in peculiar context. Thus, it is apparent that the terms “Judgment” and “Decree” are used at times separately and at times jointly. It is in this context that Section 22 of the Ordinance with respect to Appeal provides that any person aggrieved by any “Judgment” or “Decree” or “Sentence” or “Final Order” passed by the Banking Court may file an Appeal within 30 days from the date of passing of such “Judgment” or “Decree” or “Sentence” or “Final Order”. The only logical conclusion derived from scheme of law as a whole is that conferment of concurrent right to Appeal against the “Judgment” or “Decree” necessarily implies that an aggrieved party does not have to wait for the drawing of a “Decree” upon pronouncement of a “Judgment” and must file an Appeal within the stipulated period from the date of passing of “Judgment” under Section 22(1) of the Ordinance. The period of limitation if allowed to be computed from the subsequent date of the Decree, as in the present case, would necessarily make the preceding period of limitation regarding the Judgment redundant leading to absurd results. It is universally accepted principle of interpretation of statutes that no provision of a statute or a specific meaningful word in a provision of the statute should be interpreted in a manner to render the same as meaningless or redundant. It is equally important that a provision of a special statute should be interpreted with reference to the special scheme of the law and the objective it endeavors to achieve.

10.Before drawing final conclusions, it would be advantageous to explore provisions of the general law as contained in the CPC since Section 7(2) of the Ordinance declares that the Banking Court shall follow the procedure prescribed in the CPC in all matters where procedure has not been provided for in the Ordinance. The term ‘Decree’ is not defined in the Ordinance but is defined in Section 2(2) of the CPC which reads as follows:

“Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with

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regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include--

(a)any adjudication from which an appeal lies as an appeal from an order, or

(b)any order of dismissal for default.

Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:”

The term “Judgment” “means the statement given by the judge of the grounds of a decree or order” as stipulated in Section 2(9) of the CPC. The term “Order” under Section 2(14) of the CPC “means the formal expression of any decision of a Civil Court which is not a decree”. Section 96(1) of the CPC grants the right of an Appeal against original Decree in the following terms:

“Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from any decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.”

11.It may be noted from the above quoted provision of law that Appeal is only permitted against the term “Decree”. Rule 1 of Order XLI of the CPC mandatorily requires that every Appeal shall be accompanied with a copy of the Decree appealed from and (unless the Appellate Court dispenses therewith) of the Judgment on which it is founded. Thus, it becomes clear that under the provisions of the CPC an Appeal against an original Decree cannot be instituted without a Decree. The same is the position in terms of Section 100 of the CPC with reference to filing of second Appeal. However, in contrast Section 109 of the CPC confers the right to Appeal from a Judgment, Decree or Final Order of a High Court to the Supreme Court. Order XLV, Rule 1

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of the CPC in this behalf, provides that in this Order, unless there is something repugnant in the subject or context, the expression “Decree” shall include a Judgment or a Final Order. Therefore, there is concurrent conferment of right to Appeal against Judgment or Decree or Final Order regarding Appeals from the High Court to the Supreme Court.

12.The precise issue under deliberation in these Appeals also came before the learned Division Bench of the Sindh High Court in case titled “First Pakistan Security Limited and others versus Bank Alfalah Limited” (2020 C L D 269). It was held therein while interpreting Section 22(1) of the Ordinance in the context where the date of Judgment preceded the date of the Decree that the conjunction “or” indicates that an Appeal can be filed either against a Judgment or a Decree. It was expressly concluded that the Appeal can be filed against any Final Order including a Judgment or a Decree, hence the period of limitation will start from the date of Judgment and not from the date of the Decree. Learned Division Bench relied on the cases reported as “Apollo Textile Mills Ltd. and others versus Soneri Bank Ltd.” (PLD 2012 Supreme Court 268) and “Imtiaz Ali versus Atta Muhammad and another” (PLD 2008 Supreme Court 462). In the case of Apollo Textile Mills Ltd, the issue similar in nature was highlighted and discussed in detail but was left for final adjudication later in some other appropriate case as leave was refused by the Honorable Supreme Court of Pakistan on merits. However, the Imtiaz Ali case explored the proposition involved in these Appeals conclusively with reference to Order XII, Rule 2 of the Supreme Court Rules, 1980 which provided that the petition of Appeal shall be presented within thirty days from the date of grant of the certificate by the High Court or the date of impugned Judgment, Decree or Final Order of the High Court provided that the Court may for sufficient cause extend the time. In this behalf, it was noted that the Appellant was not required to wait for the preparation of the Decree as the Appeal could be filed against the Judgment also as the law did not bound to file Appeal against a Decree only. Therefore, the period spent for the preparation of Decree cannot

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be exempted. It was importantly held that a distinction must be drawn between law that does not permit an Appeal to be filed without Decree in contrast to law which permits an Appeal even against Judgment or Order. In the former case, period consumed in the preparation of Decree would be allowed while in the latter case, the period of limitation would start from the date of pronouncement of Judgment or Order. Accordingly, it was concluded that Appeal filed after one day of period of limitation created valuable right in favor of the other side and in the absence of sufficient cause for filing of delayed Appeal, the request for condonation was declined. Reliance is also placed on case titled, “Nakuleswar Sikdar versus Barun Chandra Chakravorty and another”

(1971 SCMR 54).

13.Here, it would be appropriate to also mention the case titled, “Abdul Sultan K. Merchant versus Messrs First General Leasing Modaraaba and others” (2007 CLD 523) where when confronted with an analogous situation, learned Division Bench of the Sindh High Court with reference to an Appeal filed on 08.05.2001 emanating from a banking suit held that where Appeal was filed within time on the basis of the Judgment but Decree was filed after the period of limitation, the Appeal was declared to be barred by limitation since it did not accompany a copy of the Decree. The said Judgment is in the form of a short order without reference to any law or reasons. However, it is noted with profound respect that the Ordinance was promulgated on 30.08.2001, whereas, the said Judgment was delivered on 08.03.2006. Therefore, the reporter has apparently made a mistake in drawing head notes with reference to Sections 9 and 22 of the Ordinance. In fact, the said decision was rendered under Section 21(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (the “Act of 1997”) which reads as under:-

“Subject to sub-section (2), any person aggrieved by a decree, or an order refusing to set aside a decree, or an order permitting or preventing the sale of property, or a sentence passed by a banking Court established under section 4 may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court:...”

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From the above, three conclusions emerge. First, an Appeal under Section 21(1) of the Act of 1997 could only be filed against the Decree like Section 96 of the CPC. Second, the learned Division Bench of the Sindh High Court rightly held in the case of Abdul Sultan K. Merchant (supra) that Appeal filed against the Decree was time barred although the Appeal against Judgment was within time since Appeal against Judgment was not provided under the Act of 1997. Third, the distinguishing comparative text or language employed in Section 22(1) of the Ordinance vis-à-vis Section 21(1) of the Act of 1997 conspicuously highlights the conscious departure on the part of the legislature, providing a concurrent remedy of Appeal against the Judgment or Decree under Section 22(1) of the Ordinance.

14.From the comparative analysis of Section 22(1) of the Ordinance as well as relevant provisions of the CPC and case law discussed above, it can thus be safely concluded that the right of Appeal is always exercised in accordance with the provisions of the applicable statute since the right to Appeal, as such is not an inherent right but the creature of the statute. The legislature is well within its right and competence to structure or fashion the conferment of the right in a particular manner and subject to conditions that it may impose in this behalf. The right to Appeal shall, therefore, be always interpreted in the light of the text of the statute under which it is granted. Thus, under the provisions of Section 22(1) of the Ordinance, the remedy of Appeal is concurrently available against a Decree or a Judgment. Hence, our answer to query framed under paragraph No. 5(i) of this Judgment is that under Section 22(1) of the Ordinance, an Appeal not filed within 30 days from the date of Judgment becomes barred by limitation even though an Appeal against Decree following such Judgment is within time.

15.Now we turn to answer the second query. Section 24 of the Ordinance is reproduced below:-

“(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908)

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shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance.

(2)A suit under Section 9 may be entertained by a Banking Court after the period of limitation prescribed therefor, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period.”

The aforesaid provision of law clearly stipulates that the provisions of the Limitation Act are applicable to all cases instituted after the coming into force of this Ordinance except as otherwise provided in the Ordinance. Section 22(1) of the Ordinance clearly provides a limitation of 30 days with respect to filing of an Appeal. It is settled law that if a specific provision of law provides a specific period of limitation, the cause or action contemplated therein must be initiated within the prescribed period. Therefore, an Appeal filed beyond the period of limitation of thirty days under Section 22(1) of the Act shall be barred by time. Further, an application for condonation of delay under Section 5 of the Limitation Act would be excluded or prohibited in view of Section 29(2) of the Limitation Act. Hence, applications under Section 5 of the Limitation Act accompanying the titled Appeals were not competent. Section 29(2) of the Limitation Act is quoted below:- “Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a)the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b)the remaining provisions of this Act shall not apply.”

16.Thus, the provisions of Section 29(2) of the Limitation Act are self-explanatory. In this regard, reliance is placed on case titled “Bank of Punjab versus Al-Wasay Engineering (Pvt.) Ltd. and others” (2017 P.C.T.L.R. 184 (Lahore)) where the particular proposition of

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law was explored with reference to Section 22(1) of the Ordinance with the same conclusion as aforesaid after following case titled, “NIB Bank Ltd. versus Muhammad Zia Ali Qureshi” (2016 CLD 2160); “Allah Dino and another versus Muhammad Shah and others” (2001 SCMR 286); “Messrs Pangrio Sugar Mills Ltd. versus Bankers Equity Ltd. and 5 others” (2015 CLD 637); and “Tariq Mehmood versus Atlas Bank Ltd. through Authorized Agent” (2015 CLD 959). Even otherwise, the only reason for delay stated in the applications filed under Section 5 of the Limitation Act in the instant Appeals is that the impugned Judgments were shown to be passed on 11.12.2019 but the Judgments were not announced in the open Court. Rather, on 10.12.2019, the learned Banking Judge after hearing the arguments, reserved the suits for Orders for 11.12.2019. Thereafter, the said suits were not reflected in the daily cause list of the day of the Banking Court. On 24.01.2020, the Appellant came to know with regard to the Judgments dated 11.12.2019 and hence, submitted applications for obtaining certified copies of the impugned Judgments and Decrees on the said date. Eventually, the certified copies were prepared after the Decrees were drawn on 10.04.2020 and 13.04.2020 which were collected by the Appellant on 27.04.2020 and 28.04.2020, respectively. The reason for delay put forward by learned counsel for the Appellant is without force and perusal of the Order sheet in both the Appeals clearly reveals that short Orders, as well as, the detailed Judgments both dated 11.12.2019 were passed by the Banking Court. It is apparent that the certified copy of the Judgments and Decrees were applied jointly, hence provided at the time of drawing of the Decrees. Notwithstanding the same, the issue becomes irrelevant since the Judgments admittedly, as stated above, were applied after the lapse of period of limitation. Thus the answer to our second query framed in paragraph No. 5(ii) of this Judgment is that the Limitation Act is generally applicable to the provisions of the Ordinance as stipulated in Section 24 thereof except as otherwise provided in the Ordinance. Since Section 22(1) provides otherwise, therefore, Section 5 of the Limitation Act is not attracted to the filing

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of Appeals under Section 22(1) of the Ordinance as stipulated in Section 29(2) of the Limitation Act.

17.In view of the above discussion, we hold that the instant Appeals are not maintainable being barred by limitation. Accordingly, applications under Section 5 of the Limitation Act as well as these Appeals are dismissed with no order as to costs.

(ANWAARUL HAQ PANNUN) (ABID HUSSAIN CHATTHA)

JUDGE JUDGE

Approved for reporting.

JUDGE

*Bilal & WaqaR*