SAHIB KHAN vs AGRICULTURAL DEVELOPMENT BANK OF PAKISTANAnd Other
This petition for leave to appeal challenged an order of the Lahore High Court, which had dismissed the petitioner's Intra-Court Appeal against the refusal to stay execution proceedings initiated by the Agricultural Development Bank of Pakistan under the Banking Tribunals Ordinance, 1984. The petitioner, having suffered an ex parte money decree due to failure to apply for leave to defend, sought to stay execution proceedings. The Banking Tribunal had granted a conditional stay requiring a bank guarantee, which the petitioner failed to provide, leading to the recall of the stay. The core legal question was whether the High Court was justified in refusing to stay the execution proceedings despite the petitioner's challenge to the constitutionality of the Ordinance. The Supreme Court held that the Banking Tribunal acted within its authority in recalling the stay upon the petitioner's failure to comply with the condition of furnishing a bank guarantee. The Court affirmed that the mere pendency of a challenge to the validity of the Ordinance before a larger bench does not automatically warrant a stay of execution of a decree.
- Is a Banking Tribunal justified in recalling a stay order if the judgment debtor fails to furnish the required bank guarantee?
- Does the mere pendency of a constitutional challenge against the Banking Tribunals Ordinance 1984 before a larger bench constitute sufficient grounds to stay the execution of a decree passed by such a tribunal?
- Can a writ petition be used to nullify the effect of a default in complying with conditional stay orders granted by a Banking Tribunal?
- Banking Tribunals Ordinance 1984
- Article 25, Constitution of Pakistan 1973
ORDER
AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 14-6-1994 passed by a Division Bench of the Lahore High Court upon C.M.No.2 of 1994 in Intra-Court Appeal No.199 of 1994 filed by the petitioner against the dismissal of his Writ Petition No.2417 of 1994 by an order dated 28-2-1994 inter alia challenging the execution proceedings before the Banking Tribunal in respect of a decree passed against him by the said Court, declining the same by maintaining the above order of the learned Judge in Chambers.
2. It seems that respondent No. l bank initiated proceedings for the recovery of the alleged loan against the petitioner under the Banking Tribunals Ordinance, 1984 (Ordinance LVIII of 1984), hereinafter referred to as the Ordinance. The petitioner was served with the summons by publication. Since no application for permission to defend the suit was filed, the learned Banking Tribunal decreed the suit on 14-6-1993. It appears that the petitioner riled an application for setting aside the above decree. He also filed a miscellaneous application for staying the execution of the above decree till the decision. The same was stayed subject to furnishing of bank guarantee. Since the petitioner failed to furnish the bank guarantee, the stay order was recalled. Thereupon, the petitioner filed the aforementioned writ petition, which failed. His I.C.A also failed. Hence, he has filed the present petition for leave to appeal.
3. In support of the above petition. Mr. Izharul Haque, learned A.S.C appearing for the petitioner, has vehemently contended that in the above writ petition the, petitioner besides above challenging the constitution of the Bank Tribunal and, therefore,- the learned Judge in Chambers was not justified in dismissing the aforesaid writ petition in limine. His further submission is that the learned Judges of the Division Bench were not justified in declining the above I.C.A. For the above reason. He has pointed out that inter alia in Writ Petitions of the Ordinance on the ground of violation of Article 25 of the Constitution has been referred to a larger Bench.
4. Since there was an ex parte money decree, the order of the Banking Tribunal granting stay subject to furnishing of bank guarantee could not be said to be violative of any law or rule. As the petitioner failed to comply with the conditions on which the stay was granted the Banking Tribunal was justified in recalling the stay order. The main object of the petitioner in filing of the above writ petition was to nullify the effect of his default in furnishing of the bank guarantee. In our view, no exception can be taken to the impugned order of the learned Judge in Chambers or of the learned Judges of the Division Bench. They do not suffer from any infirmity. The factum that the question of validity of certain provisions of the Ordinance has been referred to a larger Bench of the Lahore High Court, would not itself be sufficient to stay the execution of a decree passed by the Banking Tribunal.
5. It was also urged by the learned counsel for the petitioner that in some other similar writ petitions the learned Judge, who heard the aforesaid writ petitions, had granted the stay unconditionally.
6. We would not like to make any observation about the above submission as the question before us is, as to whether the impugned orders of the learned Judge in Chambers and the learned Judges of the Division Bench were violative of any principle of law as to warrant grant of leave.
Leave is refused.