2004 PLP 257 (CLD)

‑‑‑‑Ss.2(d), (e) & 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ CMistitictioizal petition‑‑‑‑Relationship between customer and financial institution‑‑‑Default in fulfilment of obligation‑‑ Institution of suit‑‑‑Factual controversy, resolution of‑‑‑Proper forum‑‑‑Petitioner/customer and respondent‑Bank, had a Banker and customer relationship and petitioner had availed financial facilities from the respondent‑Bank‑‑ Law regulating relationship between customer and financial institute was contained in Financial Institutions (Recovery of Finances) Ordinance, 2001‑‑‑Definition of finance' and `obligation' as provided under S.2(d)(e) of the said Ordinance, were wide enough to cover the dispute urged in Constitutional petition‑‑‑Where either the customer or financial institution would commit default in fulfilment of any obligation with regard to any finance, Financial Institution as the case may be, the customer could institute a suit in the Banking Court by filing a plaint‑‑‑Obligations in terms of State Bank of Pakistan Circular and instructions of respondent‑Bank, sought to be enforced, would come within purview of obligation envisaged under S.9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which could be effectively enforced by filing suit‑‑‑Controversy raised in Constitutional petition could only be thrashed out by adducing evidence and such exercise could not be taken in exercise of Constitutional jurisdiction of High Court. Abid S. Zuberi for Petitioner. Nemo for Respondent No.

1. Akber H. Mirza for Respondent No.2. Date of hearing: 25th June, 2003. MUSHIR ALAM, J.‑‑‑Through this Constitution petition, petitioner seeks implementation of scheme for settlement of defaulted loan in the light of guidelines issued through B.P.D. Circular No. 29 dated 15‑10‑2002 by the respondent No. 1, State Bank of Pakistan, together with Instruction Circular No.P/INST/1996 dated November 27, 2002 issued by respondent No.2, H.B.L. (annexed with the memo. of petition available at page 33). According to Mr. Abid S. Zuberi, learned counsel for the petitioner, said circulars are binding and to be followed by respondent No.2, Habib Bank Limited, who was obliged to implement and extend the benefit of the said scheme. It is further contended by the learned counsel that in terms of section 33‑B of the Banking Companies Ordinance, 1962 schemes and circulars issued by the State Bank of Pakistan have force of law, and are accordingly binding. In support of his contention, he has relied upon the case‑law reported as United Bank Limited v. Messrs Azmat Textile Mills Limited 2002 CLD Karachi

542. Mr. Akber H. Mirza, learned counsel appearing for respondent No.2, Habib Bank Limited, has controverted such contention. He urged that petition is not maintainable and respondent No.2, Habib Bank Limited, has already filed suits for recovery of outstanding amount against Tri‑Star Polyester Limited, a sister concern of the petitioner and so also against the petitioner‑Company, which cases are still sub judice before the Banking Court. He contends that the State Bank Circular and Habib Bank Limited's instructions are to be availed by the eligible borrowers on fulfilments of certain requirements/criteria as detailed therein. According to him, same are not met by the petitioner. Such position is controverted by Mr. Abid S. Zuberi. According to him petitioner meets the criteria as laid down in the circulars He contends that in a suit pending before the Banking Court, respondent No.2 acknowledged that "valuation of Tri‑Star Industries will not be undertaken and the earlier valuation will be termed as final". Mr. Zuberi further contends that if such valuation is considered, the petitioner qualifies the criteria under the scheme and is accordingly entitled to seek enforcement of such scheme in accordance with law. We have heard the arguments of both the learned counsel for the parties, perused the record and thoroughly examined the law cited at bar. Indeed the Circular/Scheme issued under the Banking Companies Ordinance. 1962, in view of section 33‑B, has force of law as already held in the case of United Bank Limited (supra). To invoke writ jurisdiction, condition precedent is non- availability of alternate remedy. Constitutional jurisdiction of this Court under Article 199 generally cannot be invoked in presence of other adequate remedy available under the relevant law. Admittedly the petitioner and respondent No.2 have a Banker and Customer relationship and petitioner had availed financial facilities from respondent No.2. Law regulating the relationship between customer and financial institution is contained in Financial Institutions (Recovery of Finances), Ordinance, 2001, section 9(1) whereof provides: "Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by, the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise. Definition of `finance' and `obligation' as provided for under sections 2(d) and (e) respectively of the Ordinance ibid are wide enough to cover the dispute urged in this petition. In case either customer or financial institution commits default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by filing a plaint. The obligations in terms of State Bank of Pakistan Circular and Instructions of H.B.L. sought to be enforced through this petition come within the purview of `obligation' envisaged under, section 9 of the Ordinance, 2001 as discussed above. Even otherwise, whether, the petitioner fulfils the criteria and conditions to avail the benefit of the scheme are disputed questions on fact. Therefore, we are of the opinion that the enforcement of the scheme as sought by the petitioner comes within the definition of `Obligation' which could be effectively enforced, by filing a suit as discussed above: The controversy raised in this petition could only be thrashed out by adducing evidence. Such exercise as observed above, is not undertaken in exercise of writ jurisdiction. No exceptional circumstances exist to exercise extraordinary writ jurisdiction by this Court. The petitioner may avail of the remedy as may be provided under the law. Accordingly, the petition stands disposed of in above terms alongwith the listed application. H.B.T./T‑54/K Petition dismissed.