2010 PLP 1563 (CLD)

CH. MUHAMMAD TARIQ, J.

Through this writ petition, the petitioner has assailed the judgment dated 5-7-2004 passed by learned Judge Banking Court Rawalpindi whereby the learned Judge Banking Court has allowed the application of the petitioner for leave to defend subject to his furnishing surety bond in the sum of Rs.65,00,000.

2. Learned counsel for the petitioners contends that respondent No. 1 filed a suit against the petitioner and remaining respondents seeking recovery of Rs.82,64,

848. The case of respondent-Bank was that the finance facility was allowed in the name of respondent No.2. It was guaranteed by respondents Nos.3 to 5 and that the present petitioner mortgaged its Property No.81 Industrial Area, I-10/3, Islamabad to secure the repayment of the said facility. Learned counsel further contends that creation of charge in the office of Security Exchange Commission of Pakistan is not evidence in proof of creation of mortgage. The petitioner being a separate corporate organization could neither mortgage its property nor guarantee any loan granted to a separate legal entity. The petitioner has no nexus, whatsoever, with the facility allowed to respondent No. 1 and therefore, the learned trial Court has erred while directing the petitioner to furnish security bond in the sum of Rs.65,00,

000. Learned counsel prays that in the interest of justice, the leave to defend be granted to the petitioner without any condition and the impugned order be set aside.

3. On the other hand, learned counsel for the respondents have vehemently opposed this petition and have prayed that the petition be dismissed.

4. Arguments heard. Record perused.

5. For better understanding of the matter, section 10(9) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is relevant to discuss which is reproduced as under:-- "(9) In granting leave under subsection (8), the Banking Court may impose such conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit of cash or furnishing of security."

6. It is ex facie clear from subsection (9) of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 A reproduced above that the learned Judge Banking Court is fully empowered to grant leave to defend keeping in view the circumstances of each case. This section delegates the discretionary powers upon the learned Judge Banking Court that he, if thinks appropriate, may grant leave to defend unconditionally, or by imposing the condition as to deposit of cash or furnishing of a surety.

7. The impugned order has been passed at the strength of section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Keeping in view the peculiar circumstances of this case, the learned Judge Banking Court has rightly directed the petitioner to furnish surety bond in the sum of Rs.65,00,

000. There is no illegality or infirmity in the impugned order calling for interference by this court.

8. The result of the above discussion' is that the writ petition in hand is without any force, which is dismissed. M.H./S-156/L Petition dismissed.