M.S Apex Agro vs Faysal Bank Ltd

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

F.A.O.No. 44 of 2024/BWP

M/s. Apex Agro Chemicals (Pvt.) Vs. Faysal Bank Limited. Limited, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 03.02.2025. Ms. Feroza Yasmeen Goraya and Mian Faiz-ul- Hassan, Advocates for appellants.

Syed Arshad Iqbal Bukhari, Advocate for respondent- Bank.

Through this Appeal filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the appellants have called in question order dated 18.04.2024 passed by the Judge Banking Court, Bahawalpur, whereby application for setting- aside ex parte judgment and decree dated 23.06.2016 filed by the appellants has been dismissed.

2.Learned counsel for the appellants states that the appellants were not properly served before passing ex parte decree against them, which aspect of the matter has also not been properly considered while passing the impugned order, whereby application filed by the appellants to set-aside ex parte decree has been dismissed.

3.Perusal of the record shows that the appellants, while obtaining Finance Facility from the respondent, themselves mentioned their address as “House No. 373, Katra Ahmed Khan, Ahmedpur East, District Bahawalpur” on the requisite documents and during the pendency of the recovery suit, they were served on the said address through all modes prescribed under the Banking Laws before they were

proceeded against ex parte culminating in ex parte decree against them. The claim of the appellants to challenge the said decree at this stage is that due to change of address, they had not been residing at the given address, hence could not be served with notices before ex parte decree was passed against them. In order to obtain benefit of changed address for setting aside ex parte proceedings and decree, it was mandatory for the appellants to timely convey their changed address to the respondent-Bank, which had not been done in the present case; besides the appellants do not claim to have conveyed change of their address to the respondent at any stage prior to passing of the impugned decree, hence adverse presumption cannot be drawn against the respondent. The appellants after decree has been passed cannot be allowed to take benefit of inaction on their own part to convey change of address at the proper stage. In these circumstances and in view of principles laid down in judgments reported as Mian Nadeem Akhtar versus Judge Banking Court No.III, Multan and 3 others (2015 CLD 1969 Lahore) and Naseem Ullah Khan versus United Bank Limited (2007 CLD 1552 Lahore) it is manifestly clear that due to non-communication of changed address to the respondent-Bank, the appellants cannot claim that they were not served at the proper address before proceeding ex parte against them.

4.The claim of appellants No.2 and 3 is that they were not available in Pakistan when service was ordered to be made in the recovery suit as they had been living in Saudi Arabia/UAE for the purpose of earning of livelihood, which appears to be an afterthought as the said stance that they had shifted abroad was also not timely brought to the notice of the

respondent-Bank. The appellants were duty bound and mandatorily required to keep their whereabouts known and in case they change address, they were required to disclose their fresh correct address to the respondent- Bank for the reason that it is the duty and obligation of the debtor to follow the creditor to pay his/its debt(s) and not the other way around. Reliance in this behalf may be placed on Habib Bank Ltd. versus Hamza Board Mills and others (PLD 1996 Lahore 633).

5.In addition to the above grounds the appellants have also raised certain factual grounds, which unless the decree is set aside cannot be determined at this stage and the appellants in the circumstances may, if advised, raise the same before the Executing Court at appropriate stage. There is no misreading or non- reading of record and illegality or jurisdictional defect in the impugned order for this Court to interfere in the same; hence the impugned order whereby the application filed by the appellants to set aside ex parte decree against them has been dismissed is upheld.

6.For what has been discussed above, this Appeal being devoid of any merit is dismissed.

(ASIM HAFEEZ) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

*Zeeshan Khan*