P L D 1995 Karachi 409 (PLP)

( 4) Upon the defendant failing to file a reply within the time given in the show‑cause notice under subsection (2) or upon rejection by the Banking Tribunal of tile pies taken by him in the reply, the banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint. (5) In the event of the Banking, Tribunal passing a decree against the defendant failing to give a reply to the show cause notice within the period specified in subsection (2), (he Tribunal may, on the application of the defendant filed within thirty days of the passing of the decree, set aside the same and permit the defendant to file his reply under that subsection provided it is satisfied that there was sufficient cause for the defendant not having filed the reply within the specified period. (6) All suits filed in the Banking Tribunal shall be disposed of within ninety days of the filing of the plaint and, in case the proceedings continue beyond the said period, the defendant shall be asked to furnish a bank guarantee acceptable to the Banking Tribunal to the extent of the claim in suit and, on failure of the defendant to furnish such bank guarantee within a period of fifteen days, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint: Provided that, where the claim of the banking company is based on default of the defendant in payment of agreed instalments, the bank guarantee shall be to the extent of the amount of instalments in default: Provided further that, iii case the proceedings continue beyond a further period of one hundred 'and twenty days, the defendant, shall deposit with tile Banking Tribunal in cash the amount claimed in the plaint and on failure of the defendant to make such deposit within fifteen days, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint. (7) Any amount deposited' by the defendant with the Banking Tribunal under subsection (6) before the commencement of the Finance Act, . 1990 may be withdrawn by the banking company upon an undertaking tit refund the same to the Banking Tribunal if so ordered at any time_ (8) Where the claim filed before the Banking Tribunal is for the enforcement of a mortgage of immovable property, "decree" shall mean final decree for foreclosure, sale or redemption, as the case may be, as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908). (9) Appeal, ‑‑(1) Any person aggrieved by an order of the Banking Tribunal passed under subsection (4) or subsection (5) of section 6 or a decree or sentence passed under this Ordinance may, within thirty days of such order; decree or sentence, prefer an appeal to the High Court: Provided that no appeal filed by the defendant against a decree shall be entertained unless the defendant has deposited with the Banking Tribunal the amount claimed in the suit under sub‑section (6) of section 6 or the decretal amount: Provided further that, where the claim of the banking company is based on the default of the defendant in payment of agreed instalments the deposit shall be to the extent of the amount of instalments in default. (2) An appeal under subsection (1) shall be heard by a Bench of not less than two Judges." Mr. Noorullah Manji learned counsel for the respondent No.l raised preliminary objection about maintainability of the petition on the ground that an appeal is provided under section 9 of the Ordinance, and it being so, the Constitution Petition, for the reliefs, which can be granted in appeal, is not maintainable. He also submitted that, in fact, the purpose for filing this petition is that the petitioners, as required under section 9 of the Ordinance, do not want to deposit any amount in the Court and in order to circumvent those provisions have filed this petition. Learned counsel for the petitioners, in reply, submitted that the provisions of section y are illusory and the condition, of depositing the decretal amount in Court at the, time of Institution of appeal, in fact negates the very object of appeal and is against the established judicial norms. Writ is not a substitute of appeal or revision. It is a discretionary remedy and can only be granted when the circumstances so warrant. Where the legislature has put a condition precedent for preferring appeal, and it being not against established judicial norms, it cannot be said that such embargo is against law. Article 199 of the Constitution lays down that jurisdiction of the High court cannot be invoked when another adequate remedy is provided by . law. Writ jurisdiction cannot be invoked simply to frustrate a provision of law, which provides adequate remedy. On above preliminary objection, the Petition is not maintainable. Although this Petition, as observed earlier, on above preliminary objection is not maintainable, also do not find any merits on the pleas raised on behalf of the petitioners; which are discussed below. It is contended on behalf of the petitioners that the provisions of section 6 of the Ordinance are harsh and unusual as they deprive the petitioners from fully contesting the matter according to the established judicial norms. Learned counsel particularly referred to the provisions contained in subsection (4) of section 6 according to which the decree was to be passed by the Tribunal, if the defendant failed to file reply within the time given in the show‑cause notice. A similar question was raised in the case of M/s. Sindh Glass Industries Ltd. and others v. Secretary Ministry of Justice and Parliamentary Affairs and others 1989 CLC 524 and while dealing with the above point the following was observed:‑ "We are inclined to hold that it is not the composition of a Tribunal which may determine the nature of its work but it is the work which is entrusted to the Tribunal and the procedure provided to dispose of the same are the material factors for determining the nature of the work of the Tribunal. Similarly the' mere fact that in case of failure to file a reply to a show‑cause notice or the reply being found unsatisfactory, a decree is to be followed does not make any difference as to the nature of the Tribunal inasmuch, as similar provisions are found in the form of Order XXXVII, C.P.C. which is followed by the normal Civil Courts. It may be pointed out that if a suit is filed under Order XXXVII, a defendant is to apply for leave within 10 days and upon such an application the Court is to decide, whether leave is to be granted or not to be granted and in case of failure to file‑an application or if the same is filed but is found to be unsatisfactory a decree is to be followed. However, this factum does trot change the character of the Court which passes the decree. We may also observe that even in Civil Courts including High Courts it is the practice that a money decree is not stayed until and unless generally judgment‑debtor deposits the decretal amount in Court and, therefore, the fact that section 9 of the Ordinance provides for deposit of the decretal amount at the time of filing of the appeal cannot be said to be something foreign to the normal law or practice, The non‑application of the Limitation Act, in our view, also does not change the nature of the Tribunal. It is the prerogative of the Legislature not to make applicable Limitation Act or to provide different limitation periods for different purposes. for example under Article 149 of the First Schedule to the Limitation Act the period provided for a suit to be filed by the Government is 60 years, whereas the period for other parties under other Articles is generally three years." Article 270‑A was inserted by P.O. NoXIV of 1985. Article 270‑A was substituted by Act XVIII of 1985 with effect from 31‑12‑1985. Under Article 270‑A of the Constitution, all laws made between 5th July, 1977 and 30‑12‑1995 were affirmed, and declared,, notwithstanding any judgment of any Court, to have been validly made by competent Authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever. The Ordinance which came in force from... 3142‑1984 is covered 6y Article 270‑A and has complete protection from being examined regarding its validity on any ground whatsoever. Said Article also conferred validity on the contents of the provisions of the Ordinance. Said Article came under discussion in the cases reported in (1) Muhammad Bachal Menton v. Government of Sindh PLD 1987 Karachi 296, (2) Malik Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lahore 49 and (3) PLD 1989 SC

26. Ratio of these cases is that purpose of Article 27(J‑A (1) was to validate the legal measures that were taken during the period from 5‑7‑1977 to 31‑12‑1985 notwithstanding any Constitutional defect, and the jurisdiction of the Courts was completely ousted to question the vires of said legal measures. Thus, it is clear that the validity of the provisions of the Ordinance cannot be questioned on any ground whatsoever. Besides, before striking down the provisions of the Ordinance, Article 270‑A itself will have to be struck down, and the Courts being creatures of the Constitution are bound to act within the limits imposed by the Constitution, and as such, cannot declare any provision of the Constitution as invalid. In the case of Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 (Relevant Page 190) the following has been observed:‑‑ "The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co‑exist. One provisions of the Constitution cannot be struck down being in conflict with the other provisions of the Constitution. They have to live together, exist together and operate together." Accordingly, we do not find any force in the above contention. Learned counsel next argued that the Banking Tribunal is not a Court established under Article 175 of the Constitution, as such, its function from its very inception is unconstitutional. Article 175 of the Constitution reads as follows:‑‑ , "175. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. ‑ (3) The Judiciary shall be separated progressively from the Executive within (fourteen) years from the commencing day." In the case of Shams Textile Mills Ltd. v. Federation of Pakistan PLD 1982 Kar. 513 the vires of the Banking Companies (Recovery of Loans) Ordinance, 3979 were challenged. Having taken into consideration the entries Nos.2 and 3 of concurrent legislative list and the various cases it was held that said Ordinance was intra vires the Federal Legislature as such could not be impugned. It is noted that the provisions of the Banking Companies Ordinance, 1979 are pari materia to the provisions of the Ordinance in question and the vires of the Ordinance in question were challenged iii Sindh Glass' Industries case referred above‑and in this case also the view. taken was that entry No.3 read with entry No.2 of the concurrent legislative list provided the requisite powers to the Federal Legislature to legislate the Ordinance in issue, and therefore, the same is intra vires the Federal Legislative Powers. Mince the Court/Tribunal can lie established under Articles 175 and 212 ana also under any of the entries contained in the Federal Legislative List, or the concurrent list it cannot be said that Banking Tribunal was not properly constituted. Learned counsel also contended that the provisions of the Ordinance are violative of the fundamental, rights guaranteed in the Constitution. He, however, was not able to explain how could those provisions be regarded as vioiative of tire fundamental rights. In over view, there is nothing in those provision as to render them violative of the fundamental rights. Merely because procedure for recovery of finance has been shortened does not make those provisions as violative of the fundamental rights. Likewise, no exception can be taken to the provisions of the Ordinance which provides that no appeal shall be entertained unless the defendant deposits the decretal amount with the Tribunal. In consequence, we do not find any merit in this Petition and the same is dismissed in limine alongwith C.M.A. No.5716 of 1994. A.A./K‑381/K Petition dismissed.