JAMSHED HASSAN BUTT Versus MCB BANK LIMITED Ms. Tasneem Akhtar Awan

ORDER

C.M. No. 1-C of 2014

Through this application, the applicant-appellant made a prayer for suspension of operation of the order and decree dated 12-5-2011 passed by learned Judge Banking Court No-IV, Lahore.

2. We have noticed that this appeal was filed on 17-6-2011 along with the appeal an application for grant of interim relief i.e. C.M. No.1-C of 2011 was also filed in which this Court passed the following order on 10-4-2012:-

"Subject to deposit of Rs.6,00,000 before the respondent-bank within a period of one month, the operation of the impugned judgment and decree dated 12-5-2011 shall remain suspended till the next date of hearing."

Thereafter, the injunctive order was confirmed by this Court through order dated 8-5-2012 passed in C.M. No.1-C of 2012 and subsequently C.M. No.1-C of 2011 was dismissed as withdrawn on 18-6-2012.

3. The case came up for hearing before this Court on 11-11-2014 and an observation was made by this Court as under:-

"As more than six months have lapsed, in view of section 22(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the injunctive order is no more in the field."

4. The instant application has been filed for grant of ad interim injunction. At this stage, it would be useful to reproduce subsection (7) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which reads as under:-

"(7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the judgment-debtor."

5. The plain reading of subsection (7) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it abundantly clear that any order of stay of execution of a decree shall automatically lapse on the expiry of six months from the date of the order. It has been further provided that after lapse of six months the amount deposited in Court shall be paid over to the decree-holder. The injunctive order granted on 10-4-2012 had lapsed by operation of law.

6. It is correct that the word 'shall' and 'may' are interchangeable when used in a provision of law. It is also correct that the word 'shall' when used in a statute is not mandatory as a rule of thumb; but no universal rule can be laid down to determine as to whether a provision is directory or mandatory in nature. Every enactment has to be construed on its own merit in the light of the general object intended to be secured by that legislation. Thus, while construing the provision of an enactment the entire scheme of the enactment, the nature of the provision in question should be taken into consideration. We are of the considered opinion that the basic purpose of enacting Financial Institutions (Recovery of Finances) Ordinance, 2001 is to provide speedy measures for recovery of outstanding loans and finances.

To our mind, the Financial Institutions (Recovery of Finances) Ordinance, 2001 is a remedial statute which has been enacted in order to improve and facilitate the speedy recovery of the outstanding loans due to the financial institutions. A remedial statute is thus always enacted to supply such defects and bridge such difficulties which arise, either from general imperfection of human laws or change in the circumstances by passage of time.

Therefore, we are of the opinion that the word 'shall' used in subsection (7) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is mandatory in nature.

7. The filing of instant application for grant of injunctive relief amounts to circumvent the provisions of section 22(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

8. For what has been discussed above, we are of the opinion that the present application for grant of ad interim relief, which has already lapsed by operation of law, is misconceived and the same is dismissed.

ZC/J-2/L Appeal dismissed.