IN THE COURT OF JUDGE BANKING COURT No.

III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Emirates Global Islamic Bank Limited, An Islamic Banking Company established under the Laws of the Islamic Republic of Pakistan and having its registered office at 162, Bangalore Town, Main Shahrah-e-Faisal, Karachi and a branch located at 173-Y Commercial Phase-III DHA, Lahore

Vs
Abdul Waheed Son of Muhammad Tufail R/o House No. 755 F-II, WAPDA Town, Lahore also residing at House No.149 Block-3 Sector C-1 Town Ship, Lahore according to Identity Card.

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT

Respectfully Sheweth:

1. That the Petitioner has filed the above titled application which is yet to be fixed. 2. That this honable Court issued notice/summon to the applicant /defendant whom was not duly served. It is pertinent to mention here that the respondent bank/plaintiff with melafide intention succeed in obtaining the ex-party decree in his favour and against the applicant/defendant. 3. That the established law that if an ex-party decree is passed due to improper service of summons that is liable to be set aside on this score alone. It is crystal clear that the service could not be affected upon the applicant/defendant.

4. That the execution proceedings on the basis of ex-parte decree offends the principle of natural justice in as much as neither the applicant/defendant serve with any notice nor he was provided any opportunity to be heard the impugned decree is void abintio hence liable to set aside and its subsequent execution proceedings are liable to be stayed. 5. That the real facts which have been remain hidden from the Court are such as, that the defendant bank had totally failed to serve Notices, AD and all other modes of services over petitioner/defendant, that the respondent/plaintiff completely know about the real address of the applicant/defendants as mentioned in the plaint/suit for recovery U/s 9 of Financial Institutions (Recovery Of Finances) Ordinance, 2001, and the address as mentioned in the Identity Card of applicant/defendant. That the address as mentioned in the Identity Card of the applicant/defendant has already taken from the applicant alongwith the other documents at the time when the loan was disbursed to the applicant/defendant. That the bank was well informed about the address as mentioned in the Identity Card, whereas not even a single Notice has ever been served on the said address of the applicant/defendant. That the bank was also well informed that applicant/defendant had left the residence long time ago as the address mentioned in the suit. That it is a well settled law that before declaring any person ex-parte the court ought to ensure that all reasonable and possible efforts for effective services on the parties shall be taken. 6. That the respondent/plaintiff had a complete knowledge of the correct address of applicant/defendant. Why do not they try to serve him notice at the address as mentioned in the Identity Card of applicant/defendant.? Which is clear cut violation of sub section (5) of section (9) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and it fall under misrepresentation and fraud. While decree is obtained against the applicant/defendant illegally unlawfully. Hence the section (12)/2 of CPC is completely maintainable in such a kind of situation. It is valid ground to set aside the ex-parte decree on this score alone. 7. That the Identity Card of No.35202-2512935-9 and copy of Identity Card was also under the possession of the respondent/plaintiff but with melafide the bank did not bother to mention it along with suit. 8. That the impugned ex-parte judgment and decree dated 15.11.2010 is against the law and facts of the case and the same is liable to be set-aside. 9. That the service through media of newspapers is not sufficient especially when the applicant received no newspaper. It is pertinent to mention here that the newspaper agency has failed to provide any acknowledgement for the applicant.

10. That the report of process server is totally misconceived and against the law. The applicant very humbly submits that there is no report of the process server according to the provisions of Section 9 (5) of the Financial Institution

(Recovery of Finance) Ordinance 2001. Therefore, the service through this mode has not been affect upon the applicant hence the ex-parte decree is liable to be set-aside. 11. That as per record the process server vide his report date 16.10.2010 reported that the applicant is absconding and avoiding to receive the summons, this report is totally false frivolous and fictitious. That the applicant remained available at his residential place all the time on the address as mentioned in the I.D card. Whereas the witness is concerned the report of the process server is illegal, false, fabricated because no any address or Identity Card Number is not available on record, in short a stereo type report has been made by the process serves on all the summons on 16.10.2010 which is sufficient proof of the fact that the reports are fictitious and bogus. 12. That malafide of the process serving staff is evident from the fact that on one of the summon the process server reported that the applicant is absconding and is avoiding to receive the summon whereas the applicant has deserted the said residence since long and is residing at House No. 149 Mohalla Block No.3 Sector C-1 Town Ship Lahore while the bank is well informed. Whereas the rules of processing of summons are as under (i) Endorsement of Identifier on the original process. If the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality indentifying such person or place of residence or the house or property on which the process is served.

13. That the report of courier staff is also not available on the recode because the acknowledgement signed by applicant or anybody else on behalf of the applicant is not available hence the ex-parte judgment and decree is liable to be set-aside. 14. That the claim of the decree holder is based on illegal unlawful assertions and further illegal amounts which are not warranted by law.

15. That the applicant has been condemned unheared which is against the principle of AUDI ALTERM PARTEM as such the judgment and decree dated 15.11.2010 is liable to be set-aside. The spirit of law is that no body should be condemned unheard hence the applicant should be allowed to appear and defend his legal rights in the case.

In view of submission made above it is therefore most respectfully prayed that the instant applicant may kindly be accepted and ex-parte judgment/ decree dated 15.11.2010 obtained by the respondent/ bank on the basis of fraud misrepresentation and concealment of facts may kindly be set-aside in the interest of justice and fair play.

It is further prayed that the after setting aside the impugned judgment/decree dated 15.11.2010 thus the applicant may kindly be allowed to file the applicant seeking leave to defend the suit. It is further prayed that during the pendency of the instant applicant the execution petition may kindly be suspended/stayed. Any other relief which this Honorable Court deems fit and proper may also awarded.

APPLICANT/DEFENDANT

through

Muhammad Kamran Saddiquie

Advocate High Court Iman Law Associates 48-Lower Mall View Garden Society Saddiquie Law Chamber, Lahore.

THE COURT OF JUDGE BANKING COURT No.III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Emirates Global Islamic Bank Limited, Lahore

Vs
Abdul Waheed

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT

PETITION UNDER SECTION 151 CPC FOR SUSPENSION OF THE OPERATION OF THE IMPUGNED EX-PARTE JUDGEMETN/DECREE DATED

Respectfully Sheweth:

1. That the Petitioner has filed the above said application before this honble court in which no date of hearing has been fixed so far. 2. That the contents of the main application may kindly be read as integral part of this petition. 3. That the petitioner has prima facie good arguable case in this favour and there is very likelihood of its success. 4. That the balance of convenience also lies in favour of the petitioner. 5. That if the operation of the impugned ex-parte judgment/decree dated 15.11.2010 is not suspended and the proceedings of the execution petition is not stayed the petitioner shall suffer an irreparable loss and injury. Under the above submissions it is therefore most respectfully prayed that the operation of the impugned ex-parte

judgment/decree dated 15.11.2010 may kindly be suspended and the proceedings of the execution petition may kindly be stayed till the final decision of this application.

PETITIONER

through

Muhammad Kamran Saddiquie

Advocate High Court Iman Law Associates 48-Lower Mall View Garden Society Saddiquie Law Chamber, Lahore.

THE COURT OF JUDGE BANKING COURT No.III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Emirates Global Islamic Bank Limited, Lahore

Vs
Abdul Waheed

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT

APPLICANT U/S 5 OF LIMITATION ACT FOR CONDO NATOR OF DELAY IF ANY IN THEFILLING OF THE ABOVE TITLED APPLICANT.

Respectfully Sheweth: 1. That the Petitioner has filed the above titled application which is yet to be fixed. 2. That the respondent/decree holder obtained an ex-parte decree from this honorable court on15.11.2010. 3. That the execution proceedings on the basis of ex-parte decree offends the principle of natural justice in as much as neither the applicant/defendant serve with any notice nor he was provided any opportunity to be heard the impugned decree is void abintio hence liable to set aside and its subsequent execution proceedings are liable to be stayed. 4. That the applicant/defendant is filing the application legal by in time. That to a week ago the applicant/defendant got information about the decree when the applicant/defendant phone to the official/ Relationship Manager of the bank there the applicant got information that a decree dated 15.11.2010 has already been taken ex-parte against the applicant/defendant illegally, unlawfully, through misrepresentation. That the delay as explained above neither intentional nor deliberate or willful but the same was due to the above reason.

The applicant/defendant when it came in to the knowledge appeared without any delay and filed the titled application.

5. That in the above circumstance which was beyond the control of the applicant/defendant which were created by the respondent/plaintiff melafidly, so it would be just to condone the delay if any for filing the above titled application in the interest justice equity any fair play. 6. That if the delay in the filing of the application is not condoned the applicant/defendant will suffer irreparable loss and injury and his valuable rights shall be infringed. 7. That is always in the interest of justice equity and fair play that the matter in controversy between the parties should be resolved by giving them an adequate opportunity of being heard on merits and findings of the court must be such as to ensure that the justice has no merely been administered but seems to have been done in its true letter and spite.

PETITIONER

through

Muhammad Kamran Saddiquie

Advocate High Court Iman Law Associates 48-Lower Mall View Garden Society Saddiquie Law Chamber, Lahore.

IN THE COURT OF JUDGE BANKING COURT No.III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Abdul Waheed

Vs

Emirates Global Islamic Bank Limited, Lahore

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT AFFIDAVIT OF Abdul Waheed Son of Muhammad Tufail R/o House No. 755 F-II, WAPDA Town, Lahore also residing at House No.149 Block-3 Sector C1 Town Ship, Lahore according to Identity Card.

Respectfully Sheweth:
1. That the above titled execution petition is pending adjudication before this honble Court and fixed for hearing 17.02.2011 2. That the Petitioner has filed the above titled application which is yet to be fixed. 3. That this honable Court issued notice/summon to the applicant /defendant whom was not duly served. It is pertinent to mention here that the respondent bank/plaintiff with melafide intention succeed in obtaining the ex-party decree in his favour and against the applicant/defendant. 4. That the established law that if an ex-party decree is passed due to improper service of summons that is liable to be set aside on this score alone. It is crystal clear that the service could not be affected upon the applicant/defendant. 5. That the execution proceedings on the basis of ex-parte decree offends the principle of natural justice in as much as neither the applicant/defendant serve with any notice nor he was provided any opportunity to be heard the impugned decree is void abintio hence liable to set aside and its subsequent execution proceedings are liable to be stayed. 6. That the real facts which have been remain hidden from the Court are such as, that the defendant bank had totally failed to serve Notices, AD and all other modes of services over petitioner/defendant, that the respondent/plaintiff completely know about the real address of the applicant/defendants as mentioned in the plaint/suit for recovery U/s 9 of Financial Institutions (Recovery Of Finances) Ordinance, 2001,

and the address as mentioned in the Identity Card of applicant/defendant. That the address as mentioned in the Identity Card of the applicant/defendant has already taken from the applicant alongwith the other documents at the time when the loan was disbursed to the applicant/defendant. That the bank was well informed about the address as mentioned in the Identity Card, whereas not even a single Notice has ever been served on the said address of the applicant/defendant. That the bank was also well informed that applicant/defendant had left the residence long time ago as the address mentioned in the suit. That it is a well settled law that before declaring any person ex-parte the court ought to ensure that all reasonable and possible efforts for effective services on the parties shall be taken. 7. That the respondent/plaintiff had a complete knowledge of the correct address of applicant/defendant. Why do not they try to serve him notice at the address as mentioned in the Identity Card of applicant/defendant.? Which is clear cut violation of sub section (5) of section (9) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and it fall under misrepresentation and fraud. While decree is obtained against the applicant/defendant illegally unlawfully. Hence the section (12)/2 of CPC is completely maintainable in such a kind of situation. It is valid ground to set aside the ex-parte decree on this score alone. 8. That the Identity Card of No.35202-2512935-9 and copy of Identity Card was also under the possession of the respondent/plaintiff but with melafide the bank did not bother to mention it along with suit. 9. That the impugned ex-parte judgment and decree dated 15.11.2010 is against the law and facts of the case and the same is liable to be set-aside. 10. That the service through media of newspapers is not sufficient especially when the applicant received no newspaper. It is pertinent to mention here that the newspaper agency has failed to provide any acknowledgement for the applicant. 11. That the report of process server is totally misconceived and against the law. The applicant very humbly submits that there is no report of the process server according to the provisions of Section 9 (5) of the Financial Institution (Recovery of Finance) Ordinance 2001. Therefore, the service through this mode has not been affect upon the applicant hence the ex-parte decree is liable to be set-aside. 12. That as per record the process server vide his report date 16.10.2010 reported that the applicant is absconding and avoiding to receive the summons, this report is totally false frivolous and fictitious. That the applicant remained available at his residential place all the time on the address as mentioned in the I.D card. Whereas the witness is concerned the report of the process server is illegal, false, fabricated because no any address or Identity Card Number is not available on record, in short a stereo type report has been made by the process serves on all the summons on 16.10.2010 which is sufficient proof of the fact that the reports are fictitious and bogus. 13. That malafide of the process serving staff is evident from the fact that on one of the summon the process server reported that the applicant is absconding and is avoiding to receive the summon whereas the applicant has deserted the said residence since long and is residing at House No. 149 Mohalla Block No.3 Sector C-1 Town Ship Lahore while the bank is well informed. Whereas the rules of processing of summons are as under (i) Endorsement of Identifier on the original process. If the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality indentifying such person or place of residence or the house or property on which the process is served.

14. That the report of courier staff is also not available on the recode because the acknowledgement signed by applicant or anybody else on behalf of the applicant is not available hence the ex-parte judgment and decree is liable to be set-aside. 15. That the claim of the decree holder is based on illegal unlawful assertions and further illegal amounts which are not warranted by law.

16. That the applicant has been condemned unheared which is against the principle of AUDI ALTERM PARTEM as such the judgment and decree dated 15.11.2010 is liable to be set-aside. The spirit of law is that no body should be condemned unheard hence the applicant should be allowed to appear and defend his legal rights in the case.

In view of submission made above it is therefore most respectfully prayed that the instant applicant may kindly be accepted and ex-parte judgment/ decree dated 15.11.2010 obtained by the respondent/ bank on the basis of fraud misrepresentation and concealment of facts may kindly be set-aside in the interest of justice and fair play. It is further prayed that the after setting aside the impugned judgment/decree dated 15.11.2010 thus the applicant may kindly be allowed to file the applicant seeking leave to defend the suit. It is further prayed that during the pendency of the instant applicant the execution petition may kindly be suspended/stayed. Any other relief which this Honorable Court deems fit and proper may also awarded.

Deponent VERIFICATION: Verified on oath at Lahore on this ____ day of _____ 2011 that all the content of above affidavit are correct and true to the best of my knowledge and belief.

Deponent

THE COURT OF JUDGE BANKING COURT No.III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Emirates Global Islamic Bank Limited, Lahore

Vs
Abdul Waheed

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT

PETITION UNDER SECTION 151 CPC FOR SUSPENSION OF THE OPERATION OF THE IMPUGNED EX-PARTE JUDGEMETN/DECREE DATED AFFIDAVIT OF Abdul Waheed Son of Muhammad Tufail R/o House No. 755 F-II, WAPDA Town, Lahore also residing at House No.149 Block-3 Sector C1 Town Ship, Lahore according to Identity Card.

I, the above named deponent solemnly affirm and declare as under;

That the Contents of the accompanying petition are correct and true to the best of dependants knowledge and belief and nothing has been concealed there from. Moreover, the deponent has not filed any other petition except the instant petition in any other Court.

Deponent VERIFICATION: Verified on oath at Lahore on this ____ day of _____ 2011 that all the content of above affidavit are correct and true to the best of my knowledge and belief.

Deponent

THE COURT OF JUDGE BANKING COURT No.III LAHORE

In re:
SUIT FOR RECOVERY OF Rs.3,840,624.68/-UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE ORDINANCE), 2001

Emirates Global Islamic Bank Limited, Lahore

Vs
Abdul Waheed

APPLICATION UNDER SECTION 12 OF FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 AND UNDER SECTION 151 AND 12 (2) OF CPC ON BEHALF OF DEFENDANT

APPLICANT U/S 5 OF LIMITATION ACT FOR CONDO NATOR OF DELAY IF ANY IN THEFILLING OF THE ABOVE TITLED APPLICANT. AFFIDAVIT OF Abdul Waheed Son of Muhammad Tufail R/o House No. 755 F-II, WAPDA Town, Lahore also residing at House No.149 Block-3 Sector C1 Town Ship, Lahore according to Identity Card.

I, the above named deponent solemnly affirm and declare as under;

That the Contents of the accompanying petition are correct and true to the best of dependants knowledge and belief and nothing has been concealed there from. Moreover, the deponent has not filed any other petition except the instant petition in any other Court.

Deponent VERIFICATION: Verified on oath at Lahore on this ____ day of _____ 2011 that all the content of above affidavit are correct and true to the best of my knowledge and belief.

Deponent