1997 PLP 679 (CLC)

NAZIM HUSSAIN SIDDIQUI, J‑‑‑This order will dispose of C.M.A. 2492 of 1996. The petitioners through this application have prayed to stay operation of order, dated 15‑10‑1996 passed by the Presiding Officers Banking Tribunal, Larkana under subsection (6) of section 6 of the Banking Tribunals Ordinance, 1984, hereinafter called the Ordinance, whereby the petitioners were directed to furnish bank guarantee to the extent of Rs.34,50,242. 50 within 15 days from the date of said order. Subsection (6) of section 6 of the said Ordinance is as follows:‑‑ "(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 tire 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, in case the proceedings continue beyond a further period of one hundred end twenty days, the defendant shall deposit with the Banking Tribunal in cash the amount claimed in the plaint and, of 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." Mr. A.M. Mobeen Khan learned counsel for the petitioners argued that the provisions of subsection (6) of section 6 of the Ordinance are directory and not mandatory, and it being so the petitioners are entitled to the stay of the proceedings without furnishing bank guarantee. Learned counsel in support of this contention has cited the order passed in C.P. No. D‑3327 of 1993 by a D.B. of this Court and relied upon the following observations made therein: "The intention of the Legislature would certainly not be to punish any of the parties for no fault of his. It has, therefore, to be examined if the said provision of section 6(6) of the Banking Tribunals Ordinance, 1984 is a mandatory provision or is merely a directory provision. Mere use of negative of affirmative words in a statute which prescribes performance of a public duty within given time is not by itself decisive to hold the provisions to be directory or mandatory.‑" From above observations, it is absolutely clear that the point as to whether the said provisions are mandatory or directory in character was not resolved in either way and was left unanswered. It is settled proposition of law that there is no universal rule to decide if a statute is mandatory or directory in character and the same is to be determined keeping in view the intention of the Legislature. The intention of the Legislature is to be taken as mandatory if the aim and object of the statute would be frustrated in case the direction to do a thing in a particular manner is not followed. Prohibitive or negative words used in the statue, more often than not, signify that the provision is mandatory in character. Use of the word "shall" in any statutory provision primarily indicates that it is mandatory in nature. Legislative intent can be ascertained from the entire statute and its prime object. Crawford in his Statutory Construction at page 104 says: "A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance are directory." In the provisions of subsection (6) of section 6 of the Ordinance, it has been clearly stated that if the provisions, as stated therein, are not complied the defendant shall be asked to furnish bank guarantee acceptable to the Banking Tribunal to the extent of claim in suit and on a failure of the defendant to furnish the said bank guarantee within a period of 15 days, the Tribunal shall pass a decree in favour of the banking company, as prayed in the plaint. The object for the promulgating of the Ordinance was to provide a machinery for expeditious recovery of money due to the financial institution. No equitable construction can be placed while dealing a statute relating to recovery of money. Plain reading of provisions of subsection (6) of section 6 of the Ordinance reveals that they are mandatory and not directory. It being so, the operation of the impugned order cannot be stayed. Accordingly C.M.A. 2492 of 1996 is dismissed A.A./M/138/K Order accordingly.