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P L D 1999 Karachi 391

 

Before Nazim Hussain Siddiqui, CJ.

and Ghulam Rabbani, J

 

VICTORY CORPORATION and others—Appellants

 

versus

 

EMIRATES BANK—Respondent

 

First Appeal No.79 of 1998, decided on 24th August, 1999.

 

 

Sultan A. Shaikh for Appellants.

 

Riaz Kadir Brohi for Respondent.

 

Date of hearing: 3rd February, 1999.

 

JUDGMENT

 

NAZIM HUSSAIN SIDDIQUI, C.J.—This appeal under subsection (1) of section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, hereinafter called the Act, ‘is directed against the order dated 18-10-1998 passed by Mrs. Qaiser Iqbal, Judge Banking Court No. 1, Karachi, whereby the application filed under section 3 of the Limitation Act by the appellants was dismissed. The facts relevant for decision of this appeal are as follows.

 

The respondent, Emirates Bank International Limited had filed Suit bearing No.594 of 1985 against the appellant for recovery of Rs.78,83,425.14 under the Banking Companies (Recovery of Loans) Ordinance, 1979 hereinafter referred to as the said Ordinance. The’suit was decreed. Preliminary decree was passed on 12-2-1989 and final decree on 29-3-1992. The respondent filed execution application before this Court on 16-10-1997, which was transferred to the Banking Court and was presented before it on 7-2-1998. The appellant applied for dismissal of said execution application on the plea of limitation, which was dismissed by the order impugned in this appeal.

 

The only point involved in this matter is that whether it is Article 181 or 183 of the Limitation Act, which is attracted to this case. Article 181 prescribes a period of three years for an application for which no period of

 

limitation is provided elsewhere in the Schedule of the Act or by section 48 of C.P.C., while according to Article 183 to enforce a judgment, decree or order of any High Court in the exercise of its ordinary original jurisdiction or an order of the Supreme Court, is six years. Under. section 2(f) of the Ordinance Special’ Cwt; mcons in respect of case in kluch the outstanding amount of loan does not A exceed tell million rupees a person who is or has been a District Judge or Additional District Judge and in respect of any other case the High Court in the exercise of its original civil jurisdiction. Under the Act a Banking Judge shall be a person appointed as a Judge -of the Banking Court if he has been a judge of a High Court or has been a District Judge.

 

It is contended on behalf of the appellant that the execution application w:is ;iinc-hatred and under Article 181 it could be filed only within three ,,cars, while it was presented after the lapse of about five years

 

As against above, learned counsel for respondent has argued that Article 183 ‘is attracted -to the circumstances of the case and the execution application was filed within time. He also contended that, by virtue of section 22 of the Act; the right of the. respondent to sue for recovery had not extinguished on the date of promulgation of the Act, 1997. Therefore, the respondent could take the advantage of said section, which is as follows:-

 

“22. Application of the Limitation Act 1908 Act IX of 1908.–(11

 

Subject to subsection (2), the provisions of the Limitation Act, 1908

 

(Act IX of 1908), shall not apply to any’ suit, application or othe:

proceedings filed or transferred to a Barking Court under this Ac,.

 

(2) .The provisions of the Limitation Act, 1908 , (Act IX of 1908), shall apply to all cases instituted ,or filed in a Banking. Court after the. coming into force of this Act:

 

Provided that in relation to past transaction a fresh cause of action will be deemed to arise, for purposes of limitation only.; on the date on which this. Act comes into force.”

 

Mr. Sultan A. Shaikh, learned counsel for appellant, laid much emphasis on the fact that the decree in this matter was not passed by the High Court “in the exercise of its ordinary original jurisdiction” but in the capacity of Special Court as such Article 183 of the Limitation Act is not attracted. Above plea was considered :md repelled in the case of reported as Pakistan Fisheries, Karachi and others v t Jnitcd Bank Limited P1 -T) 1993 SC 109: Relevant observation of the SiLorcmc Court at page 128 is as tolln-,vs.-

 

“It seems to us that by the expression ‘original civil jurisdiction’. as used in the Ordinance, is meant the trial of the ‘suit on the original side of the High Court. The term has not been used in the. technical sense as understood with reference to the Letters Patent of some of the High Courts in the sub-Continent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court. “

 

Since the jurisdiction exercised by this Court under the Ordinance and

the Act is ordinary original civil jurisdiction the limitation period shall be

regulated by Article 183 of the Limitation Act. The finding of the Banking

Court that Article 183 is attracted and that the execution was filed

before expiry of six years is perfectly correct and no exception can be taken o

it. i

 

As regards plea concerning section 22 of the Act -it is noted that by virtue of section 12 of the Banking Tribunals Ordinance, 1984 the provisions of Limitation Act were made inapplicable to proceedings under the said Ordinance All finances granted under said Ordinance were based on mark-up and the amount due could be recovered under aforesaid Ordinance. There was no limitation period for said ,purpose. After repeal of the Banking Tribunals Ordinance the proceedings for recovery of mark-up based facility are governed by the provisions of the Act. Subsection (1) of section 22 provides the same relief about limitation which was available under the provisions of the Banking Tribunals Ordinance, 1984 in respect of suits, applications and other proceedings, which were transferred to the Banking Court under subsection (6) of section 7 of the Act. As per subsection (2) of section 22 of the Act the. provisions of Limitation Act would apply to all cases filed in the Banking Court after coming into force of this Act. So, the provisions of Limitation Act would apply to the categories of the cases falling under subsection (2) of section 22 ofl the Act. .

 

We find no merit in this appeal and the same is dismissed in limine with costs

 

M.B.A./V-6/K Appeal dismissed

 

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