2001 PLP 38 (YLR)

Muhammad Ismail's case PLD 1996 SC 246 ref. (f) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑ Discrimination‑‑‑Initiation of coercive measures for recovery of loan from account holders by financial institutions‑‑‑High Court pointed out discriminatory procedure adopted by the institutions which was violative of Art.25 of the Constitution. (g) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Arts. 25 & 199‑‑‑Constitutional petition‑‑ Equality of citizens‑‑‑Act of discrimination‑‑ Recovery of Bank loan‑‑‑Incentive Scheme‑‑ Failure to give benefit of such Scheme to all the loanees‑‑‑Grievance of the petitioner was that the financial institution did not allow the petitioner to pay the loan in easy instalinents ‑‑‑ Validity ‑‑‑ Petitioner was directed to approach the Corporation for redressal of his grievance‑‑‑Benefits of incentive Schemes issued by the Authorities it‑ere given to the defaulters who did not pay single penny to the financial institutions i4iereas the loanees who had got secured loan from the institutions and had repaid huge amount before issuance of incentive Scheme by the Competent Authorities were not entitled to get the benefit of the Scheme which fact had brought the Schemes in the area of discrimination and the same was hit by Art.25 of the Constitution‑‑‑High Court directed the Authorities to look into the matter personally and formulate such policy which could save the interest of financial institutions and to save the loanees by making policy so that the loanees might he able to discharge their liabilities in easy instalments‑‑‑High Court further directed the Authorities to consider the special cases for the benefit of incentive Schemes after cut of date. Iftikhar Ahmad Malik for Petitioner. I intend to decide the following writ petitions by one consolidated order having similar facts and law:‑‑‑ W.P. No.7455 of 2001. W.P. No.7361 of 2001. W.P. No. 7425 of 2001 Briefly, the facts of the case are that the petitioners secured loan from respective respondents. Agreements were also executed between the petitioners and respective respondents. According to the terms and conditions of agreements the petitioners have to repay the loan to respective respondents in easy instalments.

3. The learned counsel for the petitioners submit that petitioners had already repaid loan to the respective respondents more than principal amount and remaining amount claimed by respective respondents is interest/riba which has already been declared un‑Islamic by the superior Courts. In support of their contentions they relied upon the following judgments: ‑‑ Muhammad Aslam Khaki's case (PLD 2000 SC 225) and Mehmood‑ur‑Rehman's case (PLD 1992 FSC 1). They further submit that petitioners approached the respective respondents to discharge their liabilities in easy instalments. They further urged that action of respondents is not valid and in violation of mandatory provisions of H.B.F.C. Act and Banking laws. They further submit that respondents failed to give benefit to the petitioners under the incentive Scheme issued by respective respondents off and on; that respondents failed to provide statement of accounts to the petitioners. The respondents without lawful authority demanded the interest from the petitioners and issued demand notice to the petitioners. The respondents failed to consider the request of petitioner to discharge their liabilities in easy instalments. The petitioners' counsel further submit that incentive Scheme issued by the respondents is hit by Article 25 of the Constitution as the incentive Scheme issued by respondents which reveals that respondents had given benefit to the persons who did not pay a single penny whereas the petitioners had repaid huge amount to the respondents. The respondents adjusted the amount deposited by petitioners towards the principal amount in violation of rules and regulations and agreements. I have given my anxious consideration to the contention of learned counsel for the petitioners and perused the record. It is admitted fact that the petitioners and respective respondents executed agreements of their own sweet‑will. The petitioners want enforcement of agreement through these Constitutional petitions which is not permissible in the eyes of law as the principle laid down in Mumtaz Masood's case (1994 SCMR 2287). As far as the charge of interest is concerned, this Court in view of Article 203‑G of the Constitution has got no authority to determine the same as per principle laid down by the Division Bench of this Court in Muhammad Ramazan's case (2000 CLC 158). The Hon'ble Supreme Court in the aforesaid case of Muhammad Aslam Khaki held that no doubt interest/Ribs is un‑Islamic but past and closed transactions are not to be reopened. It is settled principle of law that writ petition against show‑cause notice is not maintainable as is held in Shagufta Begum's case (PLD 1989 SC 360). It is also settled principle of law that this Court has no jurisdiction to resolve the disputed question of law as is held in Muhammad Younas Khan's case (1993 SCMR 618). It is also admitted fact that petitioners have alternate remedies under the law either to approach the respondents or to file civil suit before the competent Court. In E this view of the matter writ petitions are not maintainable as the law laid down in Muhammad Ismail's case (PLD 1996 SC 246). The petitioner's counsel have argued that petitioners have already paid more than principal amount to the respective respondent, therefore, balance amount claimed by the respective respondents is not borne out from the record of petitioner and respondents failed to supply copy of statement of accounts to petitioners. The respondents also failed to consider the cases of petitioners under incentive Scheme issued by respondents off and on. In this view of the matter, the petitioners are directed to appear before the Manager of respective respondents on 21‑5‑2001‑to discharge their liabilities strictly in accordance with law, rules and notification read with terms of the agreement. The Manager of respective respondents shall allow them any benefit/concession permissible in such‑like cases under the law, rules and notification. The Manager of respective -respondents shall also consider the request of petitioners to discharge their liabilities in easy instalments in the interest of respective respondents and to save the families of petitioners from destructions. The Manager of respective respondents as already directed would determine liabilities strictly in accordance with law and rules. Till determination, which of course would be completed expeditiously till 21‑7‑2001, the petitioners shall not be harassed till the aforesaid date. It is strange to note here that financial institutions have initiated proceedings for the recovery of loan from the petitioners/original loanees guarantors in the year 2001. The financial institutions failed to initiate proceedings immediately against the loanees just after first instalment due from original loanee and guarantors. This fact shows that financial institutions also contributory negligent out of which aforementioned amount of financial institutions accumulated against the petitioner and original loanees or their predecessor‑in- interest. It is duty and obligation of financial institutions to initiate proceedings against the defaulter as mentioned above, immediately when the first instalment was due against defaulters. It is pertinent to mention here that it appears that financial institutions under the direction of their superiors initiated proceedings for recovery through coercive measures from the poor people who had secured/obtained loan for the purpose of business or constructions of houses or for the purchase of tractors and trolley as is evident from last few months that poor people had tiled writ petitions but the rich people who had obtained huge loan from the financial institutions had not filed any writ petition. Which brings the situation that possibility cannot be ruled out that the Corporation or financial institutions have not initiated proceedings against the rich people who had obtained loan from the financial institutions. The same is hit by the Article 25 of the Constitution. The competent authority had issued various incentive Schemes and the poor people who did not know about the facility of incentive Scheme in time being illiterate and did not avail the benefit of said Scheme in time. The poor people approached the Manager of financial institutions to discharge their liabilities in easy instalment under the incentive Scheme but the Manager of financial institutions failed to consider their request on the ground that cut of date had already been expired. The incentive Scheme issued by the respondents off and on reveal that benefit of incentive Scheme were given to the defaulters who did not pay a single penny to the financial institutions whereas the loanees who have secured loan from the financial institutions and had repaid huge amount before issuing of incentive Schemes by the competent authority should not be entitled to get the benefit of the incentive schemes. This fact brings the Scheme in the area of discrimination which is hit by Article 25 of the Constitution. In this view of the matter, let a copy of this order be sent to Secretary, Finance, Government of Pakistan, Islamabad, Secretary, Finance, Government of Punjab, President, Chairman of the Financial Institutions and Managing Director of Finance Corporations who are directed to look into the matter personally and formulate the policy to save the interest of financial institutions and to save the poor people by making policy so that they may be able to discharge their liabilities in easy instalments. This competent authority while framing .the policy should have given powers to the public functionaries to consider the special cases after cut of date. Writ petitions are disposed of. Q.M.H./M.A.K./R‑61/L Order accordingly