Sheikh KHALID MEHMOOD vs BANKING TRIBUNAL, N. W.F.P., PESHAWAR And ANOTHER

ORDER

MALIK HAMID SAEED, J.---This petition under Article 199 of the Constitution challenges the validity of an order passed by the learned Banking Tribunal in Suit No.5/1-Nim, dated 20-9-1995 being in excess of the jurisdiction vested in it and of no legal effect against the petitioner, as respondent No.2 has not processed the matter in accordance with the decision of Ombudsman.

2. Briefly, the background giving rise to this petition is that petitioner obtained loan/financial assistance from the respondents for establishing a Dairy Farm at Dera Ismail Khan and after observance of requisite formalities, the loan was advanced to the petitioner. The parties entered into an agreement whereafter the petitioner suffered loss due to natural calamities in the business and requested the respondents to re-schedule the said loan but in vain and instead a legal notice was served upon the petitioner for its repayment.

3. With a view to frustrate the legal process of the Special Banking Tribunal, the petitioner made a dash to the office of Ombudsman through an application-dated 21-11-1994. Meanwhile, the respondent-Bank had also filed Suit No .5/1 on 8-1-1995 before respondent No. 1, i.e., the Banking Tribunal N.-W.F.P., Peshawar. Both the Special Banking Tribunal and Ombudsman office simultaneously proceeded with the case but in meanwhile, the Ombudsman through an undated'order on the complaint of the petitioner allowed rescheulement of the loan in eight equal instalments vide his Letter No.Reg.P/1759 of 1994, dated19-3-1995. Thereafter, on 20-9-1995, respondent No. l (Banking Tribunal N.-W. F. P.) passed a decree for the recovery of the total advanced loan which is now under challenge in this Constitutional Petition.

4.The main stress of the petitioner's counsel was that the order of the C learned Ombudsman was binding upon the respondents and referred to the provisions of Article 29 read with Article 37 of the Presidential Order I of 1983 under which the Office of the Federalbudsman was established and which relates to the bar of jurisdiction of Court or other authority and override all other laws. For ready-reference, the same are reproduced as under:- "Section 29- Bar of Jurisdiction.--No Court or other authority shall have jurisdiction - (1)to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this order; or (2)to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib."

He, therefore, argued that the Banking Tribunal was legally not possessed with the powers to grant the decree in question.

5. . We are, however, of the view that the aforesaid contention is mis--conceived; Firstly that bar contained in Article 29 (ibid) operates only if the validity of any action taken or to be taken under the said order is specifically questioned before any other Court/Tribunal which is not the case before us, and Secondly because the suit of the A.D.B.P. Was simply for recovery of loan which exclusively falls within the statutory cover of law in approaching the Tribunal which too was not barred in any manner to take cognizance of the matter.

6. Banking Tribunal Ordinance, 1984 (Ordinance No.LVIII of 1984) was promulgated on 31st December, 1984 and under section 4 thereof, the Federal Government in exercise of its power constituted the N.-W.F.P. Banking Tribunal under section 5 thereto, while subsection (3) of the same section excludes the jurisdiction of all other Courts in the subject matter. Right of appeal is given under section 9 of the Ordinance (ibid) to the aggrieved person.

7.It is .a settled proposition of law that if two provisions of two different enactments are ig clash with each other and cannot be reconciled, then the latter A in date shall prevail. The Banking Tribunal Ordinance was effective from 31st December, 1984 while the Presidential Order I through which the office of Ombudsman was created was promulgated on 24th January, 1983. This being the legal position, the provisions of the Banking Tribunal Ordinance shalll prevail upon the President Order I referred above. Even otherwise, the Banking Tribunal Ordinance is a special law on the subject while the President Order I is B a general law and . On this view too, the Banking Tribunal Ordinance had an overriding effect on the Presidential Order I of 1983.

8. Seeking relief by invoking extraordinary jurisdiction of this Court through filing a writ petition under Article 199 of the Constitution is not a vested right of any person and could be availed of only when no other alternate efficacious remedy is available. In the case in hand, the petitioner had a legal right of appeal under section 9 of the Ordinance (ibid) and its non-availing speaks of mala fide on his part so as to avoid statutory obligations of the deposit of the decretal amount under protest. The petitioner has, therefore, not come up to this Court with clean hands and the points agitated herein could easily be taken in appeal, if so desired. Further, the petitioner had concealed the fact of filing suit by the Bank before the Banking Tribunal in the proceedings before the Ombudsman.

9.For the reasons aforesaid, we find nb substance in this petition which is hereby dismissed in limine.

M.A.K./2137/Ppetitop dismissed.