SHER ALI AKHTAR and anothers vs Messrs HABIB BANK LTD. and another
This constitutional petition challenged orders passed by the Special Court (Banking), which had dismissed the petitioners' application to accept already mortgaged property as security for the purpose of obtaining leave to defend a recovery suit. The core legal question was whether property already mortgaged to a bank could legally be accepted as security for the condition of leave to defend a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979. The High Court held that the Banking Court erred in treating the petitioners' application as a review petition rather than a compliance request. Relying on established precedent, the Court held that the term 'security' under Section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, is broad enough to include security already held by the bank against the loan. Consequently, the impugned order was declared to be without legal effect, and the petition was allowed, affirming that previously mortgaged assets qualify as valid security for the purpose of conditional leave to defend.
- Can property already mortgaged to a bank be accepted as security for the purpose of granting leave to defend a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979?
- Does the term 'security' in Section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, include security already held by the bank against the loan?
- Section 12(5), Banking Companies (Recovery of Loans) Ordinance 1979
1. ' MUKHTAR AHMED JUNEJO, J.---This Constitution petition is directed against the orders dated 10404989 and dated 23-5-1990 passed by the Presiding Officer Special Court (Banking) Karachi (hereinafter to be mentioned as the Banking Court).
2. ' Respondent No,1 Habib Bank Ltd. Filed Suit No,148/1987 against the petitioners in the Banking Court for recovery of Rs,1,63,329.04. The petitioners being defendants in the said suit, moved the Banking Court for grant of unconditional leave to defend the suit on various grounds. Under an order dated 10-10-1989 the Banking Court granted to the petitioners leave to defend the suit subject to furnishing of security by 15-11-1989. In pursuance of such orders the petitioners moved the Banking Court to accept as security the property, which was already mortgaged by them with the respondent No,1. The Banking Court under the impugned order dated 23-5-1990 dismissed application of the applicants which he took to be review application. Hence this Constitution petition.
3. ' Mr. J.H. Rahimtoola, learned counsel for the petitioners argued that the petitioners had not moved the Banking Court for review of the order dated 10-10-1989 and that the Banking Court had either to accept the surety or to reject it and that the application of the applicants to the effect that the property already mortgaged with respondent No,1 ' be accepted as security, cannot be treated as an application for review of the order dated 10-10-1989.
4. ' Mr. Gulzar Ahmed, learned counsel for the respondent argued that the property already mortgaged with the respondent No,1 cannot be accepted as security in pursuance of the order dated 10-10-1989.
5. In the case of Usman Hussain v. Habib Bank Limited and others PLD V 1988 Kar. 628, it was held that the word security used in subsection (5) of section 12 of Banking Companies (Recovery of Loans)
6. 'Ordinance, 1979 will include even the security which was originally accepted against the loan. In view of aforesaid authority the Banking Court was not right in declining to consider request of the petitioners.
7. ' The Banking Court appears to have fallen in gross error by treating application of the petitioners for acceptance of the mortgaged property as security in compliance of Court's order dated 10-10- 1989, to be an application for review of the order dated 10-10-1989.
8. ' For the aforegoing reasons, the impugned order dated 23-5-1990 is declared to be unwarranted by law and of no legal effect and the constitution petition is accordingly allowed.
9. ' There are reasons for our short order in identical terms dated 26-2-1992.