SAIF UR REHMAN KHAN Versus BANKING COURT, ISLAMABAD

ORDER

FIAZ AHMAD ANJUM JANDRAN, J.--- Through instant writ petition, petitioner impugns order dated 24.11.2020 passed by the learned Judge Banking Court whereby objections pursuant to notice under Order XXI, Rule 66 of the Code of Civil Procedure, 1908 were rejected.

2. Essential and relevant facts for the adjudication of instant writ petition are that petitioner availed loan facility from the respondent No.2 but failed to pay the same within the stipulated period which constrained the latter to file a recovery suit which was decreed vide ex-parte judgment and decree dated 30.01.2014. The decree was then converted into execution petition in terms of section 19(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance 2001"). Petitioner in response to notice filed objections but the same were rejected vide impugned order.

3. Learned counsel for the petitioner objected the impugned order on two grounds i.e. that the value of the mortgaged property is not determined in accordance with fair market value and that the amount of installments already paid by the petitioner were not excluded/adjusted from the outstanding amount.

4. On the other hand, learned counsel for the respondent No.2 objected upon the maintainability of the petition in terms of section 22(6) of the Ordinance 2001, which bars filing of appeal, review or revision against interlocutory order of Banking Court and that petitioner has not provided any receipt to substantiate claim of the payment of installments and that value of the mortgaged property has been determined on the basis of evaluation dated 06.03.2019.

5. Heard, record perused.

6. The Ordinance 2001 is a special law with overriding effect. Section 19(1) bestows authority to the Banking Court to convert the judgment and decree into execution proceedings without the need to file the separate application. Section 22(6) bars filing of appeal, review or revision against any interlocutory order of the Banking Court, as argued by learned counsel for the respondent bank. The prohibition contained in the said section excludes an order passed under subsection (11) of section 15 or subsection (7) of section 19.

7. Sections 15(11) and 19(7) pertain to disposal of disputes by the Banking Court relating to the sale of the mortgaged property. Thus controversy at hand falls within the exception referred to above and, therefore, the stance of the learned counsel for the respondent bank is misconceived.

8. As mentioned above, the Ordinance 2001, being special law retains overriding effect. It provides remedy of appeal against any judgment, decree, sentence or final order passed by the Banking Court in terms of section 22(1) of the Ordinance, 2001.

9. The impugned order disposes of all the objections of the petitioner and is a final order for which remedy of appeal is provided in the Ordinance 2001. Needless to mention that in presence of statutory remedy, recourse in terms of Article 199 of the Constitution, cannot be pressed into service as an alternate remedy.

10. Consequently, instant writ petition is disposed of with observation that the petitioner, if so desires, may avail appropriate remedy in accordance with law on the subject.

KMZ/41/Isl. Order accordingly.