ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

I.A. No.5 of 2022

___________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.127/2022 (Exemption).

2. For hearing of main case.

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14^th March 2022

Mr. Aftab Hussain Soomro, Advocate for Appellant.

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1. Exemption granted subject to all just exceptions.

2. Instant appeal has been filed against impugned judgment dated 04.10.2021 and decree dated 26.11.2021 passed by the learned Banking Court No.III, at Karachi in Suit No.188 of 2018 filed by the respondent-Bank has been decreed. Learned counsel for the appellant, at the very outset, submits that similar suit for the said amount between the same parties was filed by the respondent-Bank in the year 2010, however, the same was dismissed as withdrawn in view of the fact that certified copy of the statement of account was not furnished, hence the compliance of Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was not made. According to learned counsel, a lapse of about more than eight (8) years, another suit was filed by the respondent-Bank in respect of the same amount, which has been decreed through impugned judgment. It has been further contended by the learned counsel for appellant that in respect of same claim between the same parties, since earlier suit was dismissed as withdrawn without permission of the Court to file afresh, therefore, the second suit could not have been filed. Without prejudice to hereinabove submissions, learned counsel for the appellant has submitted that learned Banking Court has also erred in law and fact while allowing the cost of fund from the date of default instead of date of filing fresh suit, pointing out the date default, if any, committed by the appellant, whereas, the period of eight (8) years delay caused by the respondent in filing second recovery suit cannot be attributed towards the appellant, therefore, cost of fund may be calculated from the date of filing the second recovery suit.

Let pre-admission notice be issued to the respondent, to be served through first three modes, for a date to be fixed after four weeks, when objections/reply, if any, shall be filed with advance copy to the learned counsel for appellant.

J U D G E