2004 PLP 1146 (CLD)

MIAN HAMID FAROOQ, J.--This first appeal, filed by Agricultural Development Bank of Pakistan under section 9 of the Banking Tribunals Ordinance, 1984, since repealed, proceeds against judgment and decree dated 12-6-1996, whereby, the then Banking Tribunal disposed of plaintiff's suit as fully adjusted.

2. Briefly stated the facts of the case are that the appellant/plaintiff filed a suit for recovery of Rs.1,69,378, against the respondent, before the then Banking Tribunal (since defunct), and pursuant to the issuance of notice, under section 6(2) of the Banking Tribunals Ordinance, 1984 the defendant filed the reply to the show-cause notice, thereby admitting the loan facility, however, agitating that he has liquidated the total suit amount minus the amount of liquidated damages. After hearing the parties, the then learned Banking Tribunal, after taking into consideration different receipts, submitted by the respondent, thereby showing the repayments made to the appellant-Bank, proceeded to dispose of the suit, as being fully adjusted, vide judgment and decree dated 12-6-1996, hence the present appeal.

3. This is a represented case. However, nobody has entered appearance to represent the respondent, thus, he is proceeded ex parte.

4. The learned counsel for the appellant, while relying upon Messrs Chenab Cement Product Private Limited and others v. Banking Tribunal Lahore and others PLD 1996 Lahore 672 submits that the impugned judgment and decree is without jurisdiction, thus, the same is liable to be set aside.

5. In this case the impugned judgment and decree was passed by the then Banking Tribunal, on 12-6-1996 and the appellant filed the present appeal within the stipulated period, prescribed under the law. Subsequently this Court in a case reported as Messrs Chenab Cement Product Private Limited and others v. Banking Tribunal Lahore and others PLD 1996 Lahore 672, while disposing of various Constitutional petitions, wherein the decrees passed by the learned Banking Tribunal were challenged, declared certain provisions of Banking Tribunals Ordinance, 1984, as un-Constitutional and the notifications appointing Presiding Officers of the Banking Tribunals, issued under the Banking Tribunals Ordinance, 1984, were also declared un- Constitutional and were thus quashed. However, in para. 12 of the aforenoted judgment it was observed that the declarations made shall not affect the cases past and closed or invalidate the judgments and decrees which have become final.

6. Subsequently a question arose as to what is the effect of the observations made by Full Bench of this Court in para. 12 of the judgment of Messrs Chenab Cement Product's case (ibid) and the Full Bench of this Court while deciding Writ Petition No. 12374 of 1999, Syed Farasat Ali Shah v. Allied Bank of Pakistan 2002 CLD 759 and other connected petitions came to the following conclusions:-- "After having examined the case, law, as noted above, we have come to the conclusion that the consistent view of this Court as well as the Supreme Court of Pakistan is that when a decree passed by a Banking Tribunal was not challenged by way of instituting the appeal and the same has been called in question only through the filing of a writ petition, which was disposed of by judgment rendered by this Court in Chenab Cement Product, in that case the decree passed by the Banking Tribunal is saved, would be considered to be past and closed case and decree has become final by virtue of para. 12 of the judgment rendered in the aforenoted case of Chenab Cement Product. However, if any decree passed by the Banking Tribunal has been called in question through the filing of appeal and simultaneously by way of filing the writ petition and the latter has been disposed of by Chenab Cement Product's case, in that event the said decree would not be covered within the scope of para. 12 of judgment of Chenab Cement Product's case, would not fall within the term "past and closed cases" and, thus, the decrees passed deemed to be set aside."

7. Applying the aforesaid yard-stick to the present case, as the impugned judgment and decree was passed before the date of rendering of the aforesaid judgment in Chenab Cement Product's case viz. 21-7-1996 and the same was challenged through the filing of present appeal, therefore, the decree under appeal is not saved, does not fall within the term, "past and closed cases" within the meaning and scope of para. 12 of the judgment in the aforenoted case of Chenab Cement Product, and thus the decree shall be deemed to be set aside.

8. In view of the above, the present appeal stands allowed and the judgment and decree dated 12-6-1996, is set aside with no order as to costs. Result would be that the suit for recovery of Rs.1,699378, titled A.D.B.P. v. Mr. Bakhsh (Suit No.3641 of 1995) shall be deemed to be pending before the newly constituted Banking Courts, Faislabad, established under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and the said Banking Court shall now decide the suit afresh, after hearing the parties and in accordance with the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. Before parting with the judgment, as the suit was instituted in the year, 1993, therefore, the learned Banking Court, Faisalabad is directed to decide the suit preferably within a period of three months from the receipt of this judgment. Office is directed to immediately transmit the record of the case to the Administrative Judge Banking Court, Faisalabad, who may entrust the case to any other Banking Court according to its schedule. M.A.W./A-911/L Case remanded.