Sheikh MUHAMMAD USMAN Versus JUDGE BANKING COURT NO.1 M. Salman Masood

ORDER

Through this constitutional petition, the petitioner-defendant has sought the indulgence of this Court by making the following prayer:--

"In light of foregoing it is most respectfully submitted that the instant writ petition may 3 kindly be accepted and the Impugned Order dated 28-5-2014 passed by learned respondent No.1 may kindly be set aside in its entirety.

It is further prayed that the learned respondent No.1 may kindly be directed to hear and allow the application of the petitioner-defendant through a specific order before passing of any further order.

It is further prayed that the respondent No.1 may kindly be directed to call all original documents in possession of the respondent Bank at the time of hearing of Leave to Defend Application.

It is further prayed that during pendency of writ petition the proceeding before the learned respondent No.1 may kindly be stayed.

Any other relief that may be appropriate under the circumstances may kindly be granted."

2. The brief facts of the case are that respondent No.2-plaintiff filed a Suit for recovery of Rs. 1,23,94,661.39 against the petitioner-defendant in the year 2010. The petitioner-defendant in pursuance to the notices issued by the respondent No.1 filed an application for grant of leave to defend the suit under section 10(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the Ordinance, 2001). In the application for leave to defend the suit the petitioner-defendant did not deny the execution of charged documents, but the defence raised by the petitioner-defendant was that respondent No.2/bank obtained signatures of the petitioner-defendant on blank documents. It has been further observed that in reply to Para No.5 of the plaint the petitioner-defendant did not deny the availing of finance facility. However, it was averred that the mark up was agreed @ Rs.7.25% instead of 11.25% and the finance facility to be repaid in twenty years. Similarly, in reply to Para No.12 of the plaint the petitioner-defendant submitted that the petitioner-defendant has already repaid an amount of rupees six million but the statement of accounts reflects the receipt of an amount of Rs.5.8 million out of which Rs.5.566 million have been adjusted towards mark up. This application for leave to defend remained pending till 13-5-2014; on which date the petitioner-defendant filed an application under sections 7/9 of the Ordinance, 2001 read with Order XIII, rules 1 and 2 and section 151, C.P.C. In this application the petitioner-defendant took a diametrically opposite stance. In Para No.3 of the application the petitioner-defendant averred that petitioner-defendant has neither signed any document nor has put his thumb impressions upon the documents attached with the plaint. The learned Banking Court through order dated 16-5-2014 observed that no miscellaneous application can be entertained or decided before grant of leave to defend the suit. However, it was further observed that the application filed by the petitioner-defendant shall remain part of the file and adjourned the case for advancing arguments on an application for leave to defend the suit. On 28-5-2014 the learned Judge Banking Court No.1 Lahore passed the impugned order and observed that since an order has already been passed upon the application filed under sections 7/9 of the Ordinance, 2001, and since, Banking Court is not invested with the powers to review its order and adjourned the case for hearing of arguments on application for leave to defend the suit. Hence, this writ petition.

3. Learned counsel for the petitioner-defendant argued that learned Judge Banking Court while passing the impugned order dated 28-5-2014 erred in law. A duty was cast upon the learned Judge Banking Court No.1 Lahore/respondent No.1 to firstly decide the application filed under sections 7/9 of the Ordinance, 2001; before hearing the arguments on an application for leave to defend the suit. The learned counsel further argued that respondent No.1 while passing the impugned order erred in law as no specific order had been passed upon the application filed by the petitioner-defendant and it has been wrongfully observed that since an order has been passed upon an application filed under sections 7/9 of the Ordinance, 2001 the same could not have been reviewed.

4. We have considered the arguments advanced by the learned counsel for the petitioner-defendant and perused the available record.

5. The arguments advanced by the learned counsel for the petitioner-defendant is hinged upon section 7 of the Ordinance, 2001.

6. The scheme of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is that the suit involving the financial matters between the Financial Institutions and the customers should be decided expeditiously in a summary manner and all the vexatious and mal a fide pleas of defence should be curtailed so that the proceedings may be completed within shortest possible time. For this purpose, subsection (3) of section 10 of the Ordinance, 2001 has been specifically enacted which provides that an application for leave to defend should be in the form of written statement. It further provides that the written statement should contain a summary of substantial questions of law as well as facts in respect of which in the opinion of the defendant evidence is required to be recorded. If subsection (3) is read with sub section (10) of the Ordinance, 2001 it becomes manifest that the Banking Court without loss of time is required to frame issues as soon as the leave to defend is granted and the case shall then be fixed for recording of evidence and disposal of suit. Thus, the legislature with specific purpose has directed the defendant to summarize the substantial questions of law and facts in the application for leave to defend the suit. In the present case the application for leave to defend the suit was filed on 18-3-2010 and thereafter before grant of leave an ancillary application was filed on 13-5-2014 in which the petitioner-defendant took a diametrically opposite defence. It is an established principle that before grant of leave to defend the suit the defendant cannot move the Court to adjudicate upon any of his rights of defence. The law specifically prohibits taking into consideration the defence of the defendant before leave to defend is granted. As a specific procedure has been provided under the law that the defence of any nature involving legal or factual controversy can only be considered after the grant of leave to defend the suit and any ancillary application would not maintainable. This Court in a judgment reported as Messrs Waheed Corporation through proprietor and another v. Allied Bank of Pakistan through Manager (2003 CLD 245) has settled the principle that the defendant cannot file any ancillary/interlocutory application unless he is allowed by the Court to defend the suit. The dictum laid down by this Court has been further followed by this Court in a judgment reported as Falcon Ventures Pvt. Ltd. through Chief Executive, Iftikhar Ahmad v. Punjab Banking Court No.II, Lahore and another (2004 CLD 726) and it was observed that the defendant cannot even file any interlocutory application in order to raise point of jurisdiction of Court till the leave to defend was granted.

7. To our mind the object behind Financial Institutions (Recovery of Finances) Ordinance, 2001 is to provide speedy measures for recovery of outstanding loans and finances of the Financial Institutions. The Ordinance, 2001 is a remedial statute and the remedial acts/statues as explained by Crawford in statutory construction; are thus enacted in order to improve and facilitate remedies already existing for the redress of wrong or injury as well as to correct defects, mistakes and omissions.

8. We would like to refer to section 22 of the Ordinance, 2001. Subsection (6) of section 22 reads as under:--

"(6)---No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19".

9. The perusal of subsection (6) takes us to the conclusion that where the statute has not provided appeal against an order then the same cannot be challenged by way of constitutional petition as any such allowance would amount to negating the provisions of the statute. We are fortified in our mind by the judgment of the Hon'ble Supreme Court of Pakistan reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165) wherein the Hon'ble Supreme Court of Pakistan has held that where a statute exclude a right of appeal, the same could not be by passed by bringing it under attack in constitutional jurisdiction. The Hon'ble Supreme Court of Pakistan in a judgment reported as Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) has held that if the language used in the statute is such that it leaves no room for doubt as to intention of the legislature, then the intent of the legislature will have to be given effect and even acts performed without jurisdiction or mala fides will not be opened to judicial scrutiny.

10. As discussed above the petitioner-defendant has given an application for leave to defend the suit on 18-3-2010; but neither denied the availing of finance facility nor execution of the charged documents; but thereafter filed an ancillary application on 13-5-2014 taking a diametrical opposite stance. We must observe that an order in the nature of Writ of Certiorari or Mandamus is a discretionary order. Its object is to faster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court it must be shown that the order sought to be set aside had occasioned some injustice. If the order does not work any injustice to the parties in that case the extra ordinary jurisdiction ought not to be allowed to be invoked.

11. For what has been discussed above, we are not inclined to interfere with the order dated 28-5-2014 in exercise of power under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Resultantly, this writ petition is dismissed in limine.

KMZ/M-351/L Petition dismissed.