2003 PLP 59 (CLD)

PARVEZ AHMAD, J.‑‑‑The respondent in this F.A.O. filed a petition under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 for the recovery of the amount claimed. It also prayed for sale of mortgaged/hypothecated properties of the present appellants disclosed or undisclosed for this purpose. The amount was due against the appellants on account of loan facility availed of by it for setting up a factory. The appellants Nos.2 to 5 were the guarantors of repayment of this amount. Hence the respondent approached the trial Court with the said petition upon which show‑cause notice, dated 23‑11‑1996 was served upon the appellants as to why order, dated 23‑11‑1996 be not made absolute. After having reply to the notice and providing opportunity of hearing the trial Court made the order passed on 23‑11‑1996 as absolute and authorised the Bank to get the same properties auctioned through Court and also that of recovery of the loan amount. The appellants/respondents before the trial Court have approached this Court through this F.A.O.

2. The main submission of learned counsel for the appellants in this regard is that a civil suit for recovery of money against the Bank was also filed which is still pending adjudication before the Civil Court and their request for consolidation of this petition alongwith that civil suit was rejected. In view of promulgation of Banking Tribunals Ordinance the trial Court was having no jurisdiction to entertain and dispose of this petition. It has been vehemently submitted that appellants Nos.2 to 6 do not admit their liability and they being the legal heirs of appellant No.1 having no inheritance from him are not liable to make the payment of this amount.

3. Learned counsel for the respondent has opposed these submissions that the appellants Nos.2 to 6 did furnish their guarantees for the repayment of the financial assistance/loan to be availed by appellant No.1 and that the trial Court was having jurisdiction to deal with the matter and allegedly passed the impugned order.

4. Giving due consideration to the submissions of learned counsel for both the panties and perusing the material made available the facts which merits consideration are whether the trial Court lacked jurisdiction. Section 3 of the Banking Tribunals Ordinance, 1984 is reproduced below:‑‑‑ "

3. Ordinance not to derogate from other laws.‑‑‑The provisions of this Ordinance shall, being in addition to and, save as otherwise provided in this Ordinance, not in derogation, of, any other law for the time being in force." The bare reading of this section makes it explicit that even after coming into force of this Ordinance the jurisdiction of the Civil Court was not ousted. The contention of the appellants is as such repelled. The appellants Nos.2 to 6 do not categorically deny or dispute their liability to make repayment of the loan facility availed of by the appellant No.

1. The record reveals that they furnished their guarantees in this regard. They are not being made liable to pay this amount as legal heirs of the appellant No.

1. The matter is being pursued against them as guarantors. They cannot and do not deny their liability, hence the findings of the trial Court are correct and to be maintained as such we dismiss this F.A.O. (Sd.) Parvez Ahmad, J. (Sd.) Mian Hamid Farooq, J. MIAN HAMID FAROOQ, J.‑‑‑I have had the advantage of reading the judgment of my learned brother Parvez Ahmad, J. Although I agree with the conclusions arrived at by my learned brother, yet I would like to record my own reasons.

2. As regards first contention raised by the learned counsel for the appellants, as noted in the proposed judgment, upon the examination of the record I do not find that the appellants, at any point of time, filed any application before the learned District Judge, thereby praying for the consolidation of the present proceedings with the proceedings in the civil suit, said to have been initiated by the appellants. Even during the arguments, the learned counsel for the appellants could not produce any such documents to substantiate his assertion that, in fact, the appellants tried for the consolidation of the proceedings. Even otherwise, I am of the considered view that the proceedings, out of which the present appeal has arisen, were for the attachment and sale of the mortgaged/hypothecated properties, for which the exclusive jurisdiction vests with the learned District Judge, as is evident from section 39(1) of the Industrial Development Bank of Pakistan Ordinance, 1961, while the suit allegedly instituted by the appellants was pending before the learned Civil Judge. Obviously the two distinct causes were pending before two separate forums and those could not have been consolidated, even if the appellants would have applied for the same. Be that as it may, it is evident from the record that the appellants did not make any effort for the consolidation of the proceedings, thus, at this stage they are precluded from raising the said plea. The contention raised by the learned counsel for the appellants is misdirected and unfounded.

3. So far as the second contention, viz. that in view of the promulgation of the Banking Tribunals Ordinance, 1984, the District Judge was divested with the jurisdiction to take cognizance of the matter under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961, has equally got no force. Section 3 of the Banking Tribunals Ordinance, 1984, as reproduced in the proposed judgment, specifically ordained that the provisions of the said Ordinance shall be in addition and not in derogation of any other law. It flows therefrom that despite the promulgation of the Banking Tribunals Ordinance, 1984, the provisions of Industrial Development Bank of Pakistan Ordinance, 1961 had not lost their enforcibility, as the provisions of the Banking Tribunals Ordinance were not in derogation with the provisions of I.D.B.P. Ordinance, thus, it cannot be argued that the respondent‑Bank was precluded from invoking the jurisdiction of the learned District Judge under section 39(1) of I.D.B.P. Ordinance when the Banking Tribunals Ordinance was promulgated. At this stage it would be extremely important‑to refer to the proviso to section 5(3) of the Banking Tribunals Ordinance, 1984, which for the facility of reference is reproduced below: "Provided that nothing in this subsection, shall be deemed to affect‑‑‑ (a) the right of a Banking Company to seek any remedy before any Court or otherwise that may be available under the law by which the Banking Company may have been established or under that law as amended from time to time; or (b) the power or jurisdiction of the Banking Company or any Court such as is referred to in clause (a); ." It flows from the above that despite the promulgation of Banking Tribunals Ordinance, the Banking Companies were allowed to seek other remedies available to them under the other laws. In the instant case the respondent‑Banking Company, apart from instituting the suit for recovery before the then Banking Tribunal was entitled to seek the remedy before the learned District Judge, thus, it cannot be argued that the only jurisdiction in this case vests with the Banking Tribunal. I am of the considered view that combined reading of the provisions of section 3 and proviso to section 5(3) of the Banking Tribunals Ordinance would show that the respondent‑Bank had the concurrent remedies and they were authorized under the law to seek those remedies even simultaneously. In the present case the respondent‑Bank chose toy avail the remedy under the I.D.B.P. Ordinance, which they were entitled under the law to seek, therefore, no exception could have been taken by the appellants to this course of action.

4. There is another aspect of the matter. I have examined the reply filed on behalf of the appellants to the application filed by the respondent‑Bank and I do not find hat the appellants have raised any such plea in their reply. It is established law that the pleas not raised in the leadings cannot be argued that too at the appellate stage his contention of the learned counsel can simply be repelled in view of the maxim "secundum allegata et probata". In view of this, the principle of estoppel will harshly operate against the appellants and they are precluded from raising the said plea for the first time before this Court.

5. Now coming to the last contention raised by the learned counsel regarding the role of appellants Nos.2 to 6 in the present case. It has specifically been alleged. in the main petition by the respondent‑Bank that respondents Nos.2 to 6 (now appellants Nos.2 to 6), at the time of grant of initial financial facility and then at the time of additional financial facility, executed joint guarantee thereby undertaking that in case of default, they would be liable to liquidate the liabilities of appellant No.1 in terms of letter of guarantee. Although the said assertion has vaguely been denied by the appellants, yet it has not been specifically asserted by the said appellants in their reply that they did not execute the said two guarantees. It has simply been stated that appellants Nos.2 to 6 are not guarantors and they have been impleaded as legal heirs of Sh. Manzoor Elahi. It is evident from the main petition that the said appellants were impleaded in the capacity of the guarantors as well as the legal heirs of Sh. Manzoor Elahi deceased. Upon the examination of the record I find two joint guarantees; dated 7‑2‑1987 and 16‑12‑1987, which have been signed by appellants Nos.2 to 6 the execution and signatures whereof have not specifically been denied by the said appellants in their reply or even at the subsequent stage.

6. Another important aspect of the case is that in the memorandum of appeal, signed by the learned, counsel for the appellants, the said appellants have admitted that they are the Directors/Principal Shareholders and Guarantors of appellant No.

1. It would be appropriate to reproduce the parties' names, which are as under:‑‑‑ "(1) Messrs Pakistan Wires Products (Private) Limited 29/30 Brandreth Road, Lahore (24 K.M. Lahore, Sheikhupra Road) through its Chief Executive Mr. Sohail Manzoor, having its registered office at 29/30 Brandreth Road, Lahore. (2) Sohail Manzoor son of Sheikh Manzoor Elahi, Director; (3) Javaid Manzoor Elahi son of Sh. Manzoor Elahi, Director; (4) Mst. Iqbal Begum widow of Sheikh Manzoor Elahi, Director; (5) Mst. Najma Begum wife of Javaid Manzoor, Director; (6) Pervaiz Manzoor son of Sheikh Manzoor Elahi, Director All Directors Principal Shareholders and Guarantors of Messrs Pakistan Wires Products (Private) Limited all residents of 221‑Shadman Colony, Lahore:" (Underlining is mine). In view of the clear admission, on their part, made in the memo of appeal, the appellants are precluded from saying that they are not the guarantors of appellant No.1. The appellants cannot be allowed to approbate and, reprobate in the same breath. It obviously emerges from the said narration that appellants Nos.2 to 6 are shirking from fulfilling their contractual obligations on flimzy grounds.

7. In the light of the arguments raised by the learned counsel, I have examined the impugned judgment and find that the same is not open to exception and does not call for any interference by this Court, thus, the findings arrived at by learned Additional District Judge are maintained.

8. In view of the above discussion and reasons, I, while agreeing with the conclusions arrived at in the proposed judgment by my learned brother Parvez Ahmad, J., am constrained to dismiss the present appeal, being devoid of any merits, with no order as to costs. ORDER OF THE COURT F.A.O. No.246 of 2000, is dismissed, leaving the parties to bear their own costs: S.A.K./P‑108/L Appeal dismissed.