1997 PLP R521 (SCMR)

MUKHTAR AHMED JUNEJO, J.‑ Under this order C.P.S.L.A, No.123/1995 and C.P.S.L.A. No. 124 of 1995 are proposed to be disposed of. Under these petitions leave is sought to assail a judgment dated 21‑12‑1994 delivered by the High Court of Sindh, disposing of, inter alia, Constitution. Petitions Nos.D‑3295/93 and D‑3296/93. Suit No.2193 of 1993 was filed by respondents 3 and 4 in the Banking Tribunal at Karachi under Banking Tribunals Ordinance, 1984 (hereinafter mentioned as the Ordinance of 1984) for recovery of Rs.2,61,49,863 from the petitioners. A similar Suit No.2413 of 1993 was filed in the same Court by respondent No.3 for recovery of Rs.9,58,719 from the petitioners. Earlier respondents 3 and 4 had filed Suit No.834 of 1992 under the original jurisdiction of the High Court of Sindh, inter alia, for a direction to petitioner No.1 to transfer the pledged shares in favour of respondents 3 and

4. In the alternative, there was prayer for recovery of Rs.2,26,02,

913. The petitioners challenged the jurisdiction of the Banking Tribunal to entertain the two suits on the grounds, that the respondents 3 and 4 were not Banking Companies and they were illegally included in the Schedule below the Ordinance of 1984 through a notification dated 5‑8‑1992 issued by the Federation of Pakistan under section 13 of the Ordinance of 1984. The petitioners filed Constitution Petition No.3295 of 1993 in respect of Suit No.2193 of 1993 and Constitution Petition No.3296 of 1993 in respect of suit No.2413 of 1993. Both the Constitution petitions were dismissed under the impugned judgment. Hence these petitions. Main argument by Khawaja Saeeduz Zafar, learned counsel for the petitioners, was that the Federal Government could not have added First, Second and Third Prudential Modarabas to the Schedule below the Ordinance of 1984 under Notification NO.SRO/743(1)/92, dated 5‑8‑1992 because a Modaraba Company formed under the Modaraba Companies and Modarabas (Floatation and Control) Ordinance, 1980 (hereinafter mentioned as the Ordinance of 1980) was not a "banking company" as defined by clause (a) of section 2 of the Ordinance of 1984. It was next argued that by including Modaraba Companies in the Schedule below Ordinance of 1984, the Federal Government had changed the forum of the suits filed by Modaraba Companies, inasmuch as, earlier such suits could be filed in an ordinary Civil Court where the procedure is less harsh than the procedure before the Banking Tribunal. The learned counsel for the petitioners referred to the Preamble of the Ordinance of 1984 and contended that the purpose of the said Ordinance was to provide a machinery for recovery of finance provided by Banking Companies, defined under clause (a) of section 2 of the said Ordinance. Under the impugned judgment the learned Judges in the High Court have conceded that the preamble has been regarded as a legitimate aid in construing the enacting parts of a statute, but have taken view that a preamble may legitimately prevail over the enacting parts of a statute only if words used in the statute are obscure or indefinite and have relied on a case from the English jurisdiction. The learned Judges in the High Court had accepted the contention of the learned counsel for the petitioners that "Modaraba" cannot be regarded as a company either under the Banking Companies Ordinance, 1962 or the Companies Ordinance, 1984, The difficulty faced by the learned Judges in the High Court as stated by them, is that the term "company" had not been defined in the Ordinance of 1984. The learned Judges in the High Court took view that "Modaraba" as defined by section 2(a) of the Ordinance of 1980 does not fall within the definition of the word "company" given in the Ordinance of 1984. While agreeing with the learned counsel for the petitioners that the Federal Government must exercise powers under section 13 of the Ordinance of 1984 in consonance with the other relevant provisions of the same enactment or the provisions of the Banking Companies Ordinance, the learned Judges took view that no such restrictions appear to be existing in that regard. Learned D.B. was of the view that since the term "company" was not defined in the Ordinance of 1984 hence it can include a "Modaraba" as defined by the Ordinance of 1980. In our view an authoritative decision by this Court is necessary on the following points:‑‑ (i) Whether a "Modaraba company" defined by clause (c) of subsection (1) of section 2 of the Ordinance of 1980 can be covered by the words "a company specified in the Schedule" appearing in sub‑clause (iii) of clause (a) of section 2 of the Ordinance of 1984? (ii) Whether the Federal Government was competent to incorporate in the Schedule below Ordinance of 1984 the First Prudential Modaraba, the Second Prudential Modaraba and the Third Prudential Modaraba? (iii) Whether the‑word "company" mentioned in sub‑clause (iii) of clause (a) of section 2 of the Ordinance of 1984 was intended by the Legislature to be understood and interpreted in light of the preamble to said Ordinance and was to be influenced by the earlier sub‑clauses of clause (a) of section 2 of the Ordinance of 1984.? Leave to appeal is, therefore, granted in both the petitions to consider said points. A.A../M-3275/S Leave granted.