2001 MLD 1914 (PLP)

Latif Saghar for Petitioner. Masood Sheharyar for Respondents. HAMID ALI MIRZA, J.‑‑‑This is a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by the petitioner wherein he has challenged the judgment/decree passed in Suit No.541 of 1997 (old No.481 of 1997), whereby the Banking Court No.II, Karachi decreed the amount of Rs.3,53,291 against the petitioner defendant in the suit. We have heard the learned counsel for the parties and perused the judgment passed by the Banking Court. Without touching the merits of the case, we called upon the learned counsel for the petitioner to satisfy us on the point of competency/maintainability of the petition under Article 199 of Constitution of Islamic Republic of Pakistan in presence of specific provisions of section 21 of Appeal in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The learned counsel submitted that he did not file the appeal because he could not have the execution of decree stayed by filing an appeal under section 21 of the said Act without depositing cash with the High Court an amount equivalent to the amount due. and further that it would have burdened the petitioner with court‑fee which he was not in a position to affix on the appeal. Learned counsel for the petitioner has placed reliance upon (i) Vincent and others v. Karachi Development Authority (1992 CLC 518), (ii) Pervez Iqbal and 2 others v. Provincial Transport Authority, Sindh (1996 CLC 182), (NLR 1998 TD 1) and (v) Ibrahim Textile Mills Ltd v. Federation of Pakistan (PLD 1989 Lahore 47). Learned counsel for respondent No.2 has argued that the petition under Article 199 ‑is not maintainable as adequate alternative remedy under section 21 of said Act against the decree passed by the Banking Court being P' available to him. He placed reliance upon Tank Steel and Re‑rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77). Section 21 of Banking (Recovery of Loans, Advances, Credits and Finances) Act, 1997 runs as follows:‑‑ "(1) Subject to subsection (2), any person aggrieved by a decree, or an order refusing to set aside a decree, or an order permitting or preventing the sale of property, or a sentence passed by a Banking Court established under section 4 may, within thirty days of such order, decree sentence, prefer an appeal to the High Court. " We do not find substance and merit in the contentions of learned counsel for the petitioner and the facts of cited cases are quite different and distinguishable to the facts of instant case. We hold that section 21 of the said Act is adequate and expeditious remedy under law, therefore, present petition under Article 199 is not competent. Reference may be made to Tank Steel and Re‑rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77) wherein their lordships of Supreme Court have observed that Constitution petition against the decree passed by the Banking Tribunal is not competent. The learned counsel for the petitioner has raised number of pleas challenging the validity and legality of impugned decree passed but all those pleas could have also been raised by him in appeal. In above circumstances, we find that the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan is neither competent nor maintainable consequently same is dismissed in limine alongwith application. H. B. T./Z‑19/K Petition dismissed.