1989 PLP 1958 (CLC)

Mansoor‑ul‑Anjum for Respondents. Date of hearing: 13th April, 1989. SAEEDUZZAMAN SIDDIOUI, J.‑‑We propose to dispose of the above‑noted Constitution Petition and the First Appeal by a common order as in both the cases the order passed by the Special Court (Banking) at Karachi, on 30 9‑1981 in Suit No.18 of 1981 (subsequently numbered as Suit No.275 of 1983 in the Court on transfer) are challenged by the petitioner/appellant. At the hearing of these cases, Mr. Khalid Ishaque, the learned counsel for the petitioner/appellant stated before us that he does not press First Appeal No.20 of 1982 riled by his clients under Section 12(l) of Banking Companies (Recovery of Loans) Ordinance 1979, (we will hereinafter refer this Ordinance as `the Ordinance' only for the sake of convenience) and that he will confine his submission in the above petition only. We accordingly dismiss First Appeal No.20 of 1982 as withdrawn with no order as to costs. The facts of the petition may be stated in brief as follows:‑ The petitioner No.l is a limited company while the petitioners Nos.2 and 3 are its directors. Respondent No.2 is a Banking Company. Petitioner No.l is engaged in construction business and in course of its business obtained overdraft facilities from respondent No.2. The petitioners executed from time to time several documents in favour of respondent No.2 in connection with the overdraft facilities. In or about October, 1980, respondent No.2 claimed from the petitioners a sum of Rs.85,03,350.13 as due and payable by petitioner No.l in the overdraft account. Accordingly, respondent No.2 instituted Suit No.18/1981 before the Special Court (Banking) at Karachi, for recovery of the above amount. In the suit instituted by respondent No.2, the petitioners and one Shaukat Hussain Siddiqui were shown as defendants liable to pay the claim in the suit. Upon service of summons in the suit, the petitioners and said Shaukat Hussain Siddiqui applied separately for leave to defend the suit under Order 37 C.P.C. The Presiding Officer of the Special Court (Banking) by order dated 30‑9‑1981 refused leave to defend the suit to petitioner No.l and decreed the suit against it, but granted conditional leave to defend the suit to petitioners Nos.2 and 3 and said Shaukat Hussain. Under the leave granting order, the petitioners Nos.2 and 3 and said Shaukat Hussain were required to furnish security in the sum of Rs. twenty lacs each before 13‑11‑1981. It is an admitted position that the petitioners Nos.2 and 3 and said Shaukat Hussain did not furnish the required security. However on application of petitioners Nos.2 and 3 and said Shaukat Hussain Siddiqui the time for furnishing security was extended by the Special Court until 13‑1‑1982. The petitioners Nos.2 and 3, and said Shaukat Hussain did not furnish the required security even within the extended time, with the result, the suit was decreed against them also on 13‑1‑1982. On 17‑1‑1982 petitioners Nos.2 and 3 who were defendants Nos.2 and 3 in the above suit, filed two separate applications under Section 114 C.P.C. for setting aside the decree and giving them further time to furnish security in the case. Shaukat Hussain Siddiqui who was defendant No.4 in that suit also filed similar application on 19‑1‑1982. The Ordinance was amended in the meantime and as a result of amendment Suit No.18 of 1981 instituted by respondent No.2 against the petitioners and said Shaukat Hussain Siddiqui was transferred to this Court and registered as Suit No.275 of 1983. After transfer of Suit No.275 of 1983, to this Court, a learned Single Judge sitting on the Original Side, decided the pending applications of petitioners Nos.2 and 3 and the said Shaukat Hussain Siddiqui, for extension of time for furnishing security, by a consent order datad 5‑11‑1985, which extended the time for furnishing of security of Rs.20,00,000 by each one of them by one month and it was further provided in the said order that upon furnishing of security within the above period the decree passed in the suit against them on 13 1‑1982 shall stand set aside. The petitioners Nos.2 and 3 and said Shaukat Hussain Siddiqui, however, did not furnish security and, therefore, in terms of the order of this Court dated 5‑11‑1985 the decree passed by the Special Court (Banking) remained operative. Thereafter, another application under Section 5 of the Limitation Act read with Section 151 C.P.C. and Section 6(1)(A) of the Banking Company (Recovery of Loans) Ordinance, 1979 was moved on behalf of Shaukat Hussain Siddiqui, who was defendant ‑No.4 in that suit, but is not a party in the present proceedings, alongwith an application under Order 47 Rule 1 read with Section 151 C.P.C. This application was also disposed of by another learned Single Judge of this Court sitting on the Original Side, on 23‑2‑1986 by consent of the parties as follows:‑ "That the decree passed by the Special Court (Banking) on 13‑1‑1983 will stand and first to be executed against defendant No.l, the principal borrower. If the decretal amount is not recovered fully the plaintiff will proceed against defendants Nos.2 and 3 to the extent of the decree against them and if decretal amount is not again fully recovered from said defendants the plaintiff shall proceed against defendant No.4 to the extent of the decree against him. This disposes of two applications as well as office reference listed at Serial No.3." From the above narration of facts it is quite clear that even after riling of above petition, the petitioners continued to appear and take part in the proceedings of suit and sought orders therein to their advantage. The abovementioned facts relating to transfer of suit instituted against the petitioners and said Shaukat Hussain Siddiqui, and their subsequent appearance and taking part in the proceedings of suit and passing of the orders dated 5‑11‑1985 and 23‑2‑1986 are not mentioned by the petitioners in the above petition. However, during the course of hearing of above petition on 12‑4‑1988 Mr. Mansoorul Arfin the learned counsel for respondent No.2 referred these facts from the certified copy of order dated 23‑2‑1986, passed in Suit No.275 of 1983. This was objected to by Mr. Khalid M. Ishaque and we, accordingly, adjourned the above case for today to enable Mr. Mansoorul Arfin to place on record the copy of order dated 23‑2‑1986 passed in Suit No.275 of 1983. The copy of the order dated 23‑2‑1986 is accordingly, filed by Mr. Mansoorul Arfin today, alongwith a statement which is taken on record with the consent of Mr. Khalid M. Ishaque. We have also called the original rile of Suit No.275 of 1983 which has been disposed of finally by this Court. Mr. Mansoorul Arfin, learned counsel for respondent No.2 on the basis of above‑stated facts raised preliminary objection regarding maintainability of above petition. It is firstly, contended by Mr. Arfin that an appeal is provided under Section 12(1) of the Ordinance against the final order which was in fact filed by the petitioners and was listed today alongwith the above petition but it has been withdrawn and as such the petitioners are not entitled to maintain the petition. The second objection of Mr. Arfin is that in so far petitioners Nos.2 and 3 are concerned they cannot maintain the present petition which is filed against an interim while on the date of filing .of the above petition final decree dated 13‑1‑1982 was already passed against petitioners Nos.2 and 3 in the suit, which is not challenged by them. The third objection of learned counsel regarding maintainability of petition is that on account of their conduct and passing of different orders in the suit, at the instance of petitioners, the petitioners are disentitled to any relief in the above petititon. In reply to the above preliminary objections of Mr. Arfin, Mr. Khalid M. Ishaque, the learned counsel for the petitioners contended before us that the existence of remedy by way of appeal under section 12(1) of the Ordinance cannot be considered as an alternate or efficacious remedy in this case so as to debar the petitioners from moving this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution. Elaborating the above argument, Mr. Khblid M. Ishaque contended that the remedy by way of appeal provided under the Ordinance Is almost a negation of the right of appeal as any aggrieved person who files an appeal against the order of Special Court cannot get his appeal admitted unless he deposits in Court the amount decreed against him or furnishes a security for that amount in the discretion of appellate Court. In the submission of learned counsel, existence of the above right of appeal under the Ordinance which is circumscribed by such cumbersome conditions for its exercise cannot be treated as an alternate or efficacious remedy which is visualised under Article 199 of the Constitution, and as such existence of such a remedy should not be treated as bar to the entertainment of above petition under Article 199 of the Constitution filed by the petitioners. In support of his contention Mr. Khalid M. Ishaque relied on the' cases of Eastern Rice Syndicate v. Central Board of Revenue PLD 1959 SC 364 and Mahboob Ali Malik v. Province of West Pakistan PLD 1963 Lah.

570. With regard to other objections of Mr. Mansoorul Arfin, Mr. Khalid M. Ishaque stated that order dated 30‑9‑1981, impugned by the petitioners in the above petition for all practical purposes decided the controversy in suit against the petitioners and as such failure of petitioners Nos.2 and 3 to challenge the final decree in the suit which was subsequently passed against them on 13‑1‑1982 is of no consequence. The learned counsel went on to argue that if the initial order was void, then any superstructure raised on the foundation of such void order will automatically fail if the initial order is struck down by the Courts. After hearing the learned counsel for the parties at length we are of the view that the preliminary objections regarding maintainability of the petition raised by the learned counsel for the respondent No.2 are not without force. It is an admitted position in the case that subsequent to passing of impugned order dated 30‑9‑1981, the Special Court (Banking) decreed the suit against petitioners Nos.2 and 3 on 13‑1‑1982. The impugned order dated 30‑9‑1981, therefore, stood merged in the final decree passed in the case on 13‑1‑1982, and accordingly petitioners Nos.2 and 3 could not successfully challenge the order dated 30‑9‑1981 without impugning the final decree dated 13‑1‑1982. Apart from it, petitioners Nos.2 and 3, after passing of the impugned order dated 30‑9‑1981, and expiry of the time fixed for furnishing of security, approached the same Court which passed the impugned order and prayed for extension of time for furnishing security which was granted by the Court. After passing of final decree dated 13‑1‑1982, the petitioners Nos.2 and‑3 once again approached the same Court for further extension of time to furnish security and obtained orders thereon on 5‑11‑1985 by this Court after transfer of the suit, which extended the period for furnishing security by them by one month. The above steps taken by petitioners Nos.2 and 3 in the suit, clearly indicate their acquiescence not only to the jurisdiction of the Special Court but also in the impugned order dated 30‑9‑1981 and as such they cannot be allowed to challenge the same. Similarly the consent order dated 23‑2‑1986, passed in the suit by this Court shows that the petitioners have accepted the final decree in the suit and have even agreed to the mode of its execution against them. The petitioners have not challenged this last order, we are, therefore, of view that the above conduct of petitioners clearly disentitled them from invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution. In view of our above conclusions, it is not necessary to decide other controversies in the case. The petition is accordingly dismissed but there will be no order as to costs. M.B.A./S‑422/K Petition dismissed.