2003 PLP 584 (CLD)

"This writ petition impugns the order, dated 15‑10‑2002 passed by the learned Banking Court No. II, Lahore. The facts necessary for deciding this petition are straightforward. I.D.B.P. respondent No.2 filed a suit against the petitioner and respondents Nos. 3 to 8 before the learned Banking Court No. II, Lahore, for recovery of a sum of Rs.1,33,15,

763. According to learned counsel, the break‑up of the aforesaid amount, as given in .the plaint, shows that the principal amount is only Rs.53,17,

812. The balance amount of: Rs.79,77,850 has been claimed by I.D.B.P. on account of mark up, fines and penalties. (2) 'The petitioner (defendant before the learned Banking Court) filed an application under section 9 of the Non‑Performing Assets and Rehabilitation of Industrial Undertakings (Legal Proceedings) Ordinance No. LVIII of 2000 before the learned Banking Court praying that the question of I.D.B.P.'s claim and, in particular, the matter of fines, and penalties claimed by I.D.B.P. in its suit be referred to a Verification Committee envisaged in the aforesaid statute. The learned Banking Court dismissed the aforesaid application by means of the impugned order. It has been held by the learned Banking Court that it has no power to refer the matter to the Verification Committee. The reason for this conclusion has been set out in the concluding paragraph of the impugned order which, for case of reference, is reproduced as under:‑‑ I have heard the learned counsel for parties and peruse the record of this case. According to section 4 of the Non‑Performing Assets and Rehabilitation of Industrial Undertakings (Legal Proceedings) Ordinance, 2000, only the High Court of a Province has jurisdiction to pass the order as prayed for in the application. The other contention is that the finance involved/ outstanding payment obligation should exceed Rs.30.00 (M). The obligation as claimed in the plaint is less than Rs.6.30(M) as the obligation mentioned in the plaint is Rs.133,15,763/49. As a result of above discussion I see no force in this application and the same is hereby dismissed. (3) Learned counsel for the petitioner contends that the aforesaid reasoning is not in accordance with the provisions of section 9 of Ordinance LVIII of 2000 because all Courts dealing with matters relating to non‑performing assets, as the term has been defined in Ordinance LVIII of 2000, have the power to refer matters to the Verification Committee."

3. Learned counsel for the respondents Nos. 2 and 8 leave drawn the attention of the Court to the definition of non‑performing asset given in section 2(g) of the Ordinance No. LVIII of 2000. Since the said provision has relevance, it is, for convenience, reproduced as under:‑‑ 2(1)(g) "non‑performing asset" means any financial asset‑‑ (a) which is held as an asset on the books of a financial institution; (b) with respect to which the obligor has been in arrears. on any payment obligation for a period more than three hundred and sixty‑five days, including‑‑ (i) collateral with respect to any financial asset; and (ii) a whsle or partial right or interest of a financial institution in any financial asset, that otherwise constitutes a non‑performing asset including a financial asset with respect to which the financial institution has an ongoing finding obligation; and (c) with respect to which the obligor's outstanding payment obligation to any financial exceeds thirty million rupees: Provided that the Federal Government notification in the official Gazette, alter, increase the said amount as and deems fit."

4. Learned counsel for the petitioner argued clauses (a), (b) and (c) of section 2(1)(g), reproduced are disjunctive: On this basis, it was contended clause (a) should be read independently and amount claimed by the respondent‑Banks disputed amount of fines and penalties, the Banking Court had the power to refer the Verification Committee under section 9 of of 2000 even though the amount was less than thirty million. This argument is misconceived. clause (a) is read disjunctively, as argued by counsel, then it would lead to the absurd even a performing asset on the books of a institution would fall within the definition performing asset. It is only if sub‑clauses (a), (b) aforesaid are read conjunctively, that meaning given to section 2(1)(g) of Ordinance LVIII of ingredients given in each of these sub‑clauses have simultaneously if an asset on the books of a institution is to be treated as a non‑performing benefits of section 9 of Ordinance LVIII of available to financial institutions and their only in respect of non‑performing assets otherwise.

5. It is evident from a plain reading of the statutory provision that in order for any asset to be dealt with under the aforesaid amount of such non‑performing asset should be thirty million rupees as stipulated in sub‑clause section 2(g), reproduced above. Since section 9 aforesaid Ordinance is applicable only to assets, it follows that the provisions of section 9 available to the petitioner only if the amount excess of thirty million rupees. In the present amount of the claim against the Rs.1,33,15,

763. This amount, being less than thirty rupees, the provisions of section 9 of the Ordinance are not available to the petitioner. 5‑A. In view of the above discussion, this writ petition is dismissed. M.B.A./M‑1594/L Petition dismissed.