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Suit No.86 of 1986, decided on 17th February, 1987.

---S.6--Civil Procedure Code (V. of 1908), O.XXXVII, R.3 & O. V. Rr.17 & 20--Suit for recovery of bank loan--Defendant Company s officials remaining personally un-served except one of its Directors- Substituted service through, publication also effected on remaining defendants--Plea of served defendant's counsel that proceedings be left in abeyance till all the defendants were served through summons repelled--Service of remaining defendants through publication was good service unless order of Court holding such service as good was vacated by Court--Suit having been filed under summary Chapter of Civil Procedure Code, held, was to be disposed of as early a possible--No application for-leave to appear and defend suit having been filed within statutory period, Court would be left with no option but to pass a final decree--Suit was decreed as per prayer in plaint.

Zahid Hussain Borhani for Plaintiff.

Naim-ur-Rehman for Defendant No.2.

Defendants No.1, 3 and 6 called absent.

Date of hearing:- 17th February, 1987.

This is a suit by a foreign bank for recovery of a sum o Rs.1,092,429.04 under the Banking Companies ;Recovery of Loan) Ordinance, 1979. This suit was filed on 29-1-1,986 and the diary the case shows that several attempts were made for service of the summons of suit on the defendants. Defendant No. 1 is a limited company with its Head Office at 62-New Cloth Market, M.A. Jinnah Road, Karachi and defendants No.2 to 6 are its Directors.

2. It is stated by the learned counsel for the plaintiff that alongwith the suit he had also filed an application under Order XXIX, rule 2 C.P.C. for service of the summons on the defendant No.1 "through its Secretary or any Director or other principal officer or in any other manner as may be just and expedient in the circumstance of the case". The provisions relating to the service on the statutory companies contained in Order XXIX, rule 2(a) are as follows:-

"Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served.

(a) on the Secretary, or on any Director, or other principal officer of the corporation."

3. Mr. Naimur Rehman has filed power on behalf of defendant No. 2. It appears that after having filed power on behalf of Defendant No. 2 the learned counsel visited the office and collected the papers from the office as is evident from his note on the order-sheet. This note is as follows:-

"Received copy of plaint alongwith Annexures on 4-5-1986.

Naimur Rehman

-------- --------------------------------------

Advocate or Defendant No.2

4-5-1986."

4. On 29-4-1986 Additional Registrar has passed an order which shows that the summons were published in the Morning News, dated 14-2-1986. It is also noted that the summons issued for service through bailiff and also through registered post had returned un-served with the report that office of the Defendant No. 1 was found locked and houses of Defendants Nos. 2 to 6 were also found locked. The postal remarks were to the effect "refused to accept by all the defendants."

5. The office in spite of publication and Mr. Naimur Rehman's appearance issued summons to the remaining defendants. But the defendants could not be served through bailiff.

6. Learned counsel for the plaintiff then moved an application under Order V rules 17 and 20, C.P. C. In para three of this application it was stated that "under the circumstances, if fresh summons are ordered through Bailiff the same shall be an exercise in futility and shall amount of defeating the very purpose for which the Banking Companies Recovery of Loans Ordinance, 1979 was promulgated, and there will be no end to the proceedings and the defendants shall manage to remain unserved." This application was fixed for order in Court alongwith an office note. This office note is as follows:

"The Advocate for the Plaintiff has moved this application under Order V, rules 17 and 20, C. P. C. read with rule 8 of the Barking Companies (Recovery of Loans) Rules 1980 read with section 151, C. P. C. praying that the service on the defendants 1, 3 and 6 may be held good on the basis of the publication made under rule 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979. It is submitted that this a suit filed for recovery of Rs. 1,092,429.04 Under Ordinance, XIX of 1979. The summons and publication issued to the defendants as Rule 8 of the Banking Co. Recovery of Loans Ordinance. Publication was received vide circulation in Morning News, dated 14-2-1986 but the summons to the Defendants No.1, 3, to 6 issued by Registered A/D returned with the report "Refused to Accept", but the Defendants 1, 3 to 6 are not being served by Bailiff. It is further submitted that 5 attempts have been made by Bailiff but returned "with the report that the Co. of Defendant No.1 was found locked and Defendants 3 to 6 are not residing on the given addresses.

Perhaps the above application alongwith the office reference may be placed in Court for orders."

The case came up for hearing in Court before me on 7-12-1986 and after hearing the counsel and perusing the office note the following order was passed:-

"According to the office note several attempts have been made by the Bailiff to serve the defendant, but they have refused to accept the summons. They have also been served by publication in the newspaper "MORNING NEWS", dated 14-2-1986.

In view of the above service through publication, as well as through Bailiff, the service should be held good and the case to proceed according to rules."

7. Today the, case has been put up before me for final disposal. Mr. Naim-ur-Rehman, who has filed power on behalf of Defendant No.2 on 29-4-1986 and, has also collected the copies of plaint and Annexures on 4-5-1986, now contends that he has accepted service only on behalf of the Defendant No.2 and other defendants remain un-served.

8. The contention of the learned counsel for the plaintiff is that the service on the defendant No.2, who is admittedly a Director of Defendant No.1 is effective service for Defendant No.2 as well as for defendant No.1, which is a limited company. Learned counsel further submits that the service has already been held good through publication by order, dated 7-12-1986 and unless this order is vacated, this order holds the field and as none of the defendants has filed any application praying for leave to defend as postulated by Order XXXVII, rule 3, C.P.C. they are now debarred from filing any such application after three months of the service and as such the suit should be decreed.

9. In my opinion, the argument of Mr. Naim-ur-Rehman that merely because he has accepted service for defendant No.2 and not for other defendants, the proceedings should be left in abeyance and no order should be passed till all the defendants are served through summons, have no substance. This suit has been filed under Summary Chapter and must be disposed of as early as possible. Admittedly no application for leave has been filed within ten days and there is no option left with the Court but to pass a final decree as enjoined by Order XXXVII, C.P.C.

10. In the end, Mr. Naim-ur-Rehman, learned counsel for the Defendant No.2 contends that he has filed an application under Order XXXVII, rule 3, C.P.C. but the application seems to have been misplaced in the office.

11. This assertion of the learned counsel remains unsupported. Neither the application is traceable on the file nor any affidavit has been filed giving full details where and with whom such an application was filed. Merely to make an oral grievance that such an application has been moved few months back is not enough.

12. Learned counsel for the plaintiff opposes any adjournment on the ground that had such an application been filed as alleged by the counsel for the defendant, there was ample time and opportunity to make enquiry from the office during the last nine months and either to trace out the application or to move fresh application with the leave of the Court. As nothing has been done and n6 efforts have been made to trace out the application which is claimed to have been filed in May 1986, no indulgence can be shown to the defendants.

13. In the circumstances, I have no option but to strictly comply the provisions of Order XXXVII and Banking Companies (Recovery of Loans) Act. I would, therefore, decree the suit with costs as prayed in the plaint.

A.A. B-10/K. Suit decreed.

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