1998 PLP 1351 (MLD)

"Whereas it is expedient to provide a machinery for recovery of finance provided by banking companies under a system of financing which is not based on interest." Banking Companies has been defined a bank as defined in The Banks (Nationalization) Act (XIX of 1974). The Bank being spread all over the country was legally justified to sue the petitioners in the Banking Tribunal.

6. Undisputedly, Banking Companies (Recovery of Loans) Ordinance, 1979 has been extended to PATA where under section 6(4) the jurisdiction of the ordinary Civil Courts has been barred in respect of any dispute between the Banking Companies and a borrower or guarantor. The Tribunal appointed under the Ordinance has been empowered to adjudicate upon the matter and the jurisdiction of any other Court has been barred under section 5(3) in these words:- "5(3). No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal. " Under Section 6 thereof procedure of the Banking Tribunal has been provided whereunder in case of any default committed by a customer in fulfilling any obligation to a Banking company, the Banking Company may file against such customer with the Banking Tribunal a plaint which shall, be verified on oath by the Manager or an Officer of the rank of Assistant Vice-President, or Assistant Manager or such other officer as the Board of Directors of the Banking Company may authorise to this behalf. The Banking Tribunal shall issue a notice to the defendant requiring him to show cause as to why a decree as prayed for should not be passed against him. The notice shall be served on the defendant in accordance with the procedure laid down in subsection (3) of section 4 of the Banking Companies (Recovery of Loans) Ordinance, 1979.

7. The Banking Tribunal has rightly adjudicated upon and passed a decree because the matter in dispute was exclusively triable by it and a plaint was duly presented by the Bank and after issuing the required notice and hearing the petitioners the impugned decree was passed.

8. A petition under Article 199 of the Constitution can only be entertained when no other adequate remedy is available. The petitioners though preferred an appeal under section 9 of the Ordinance but they did not comply with the first proviso thereof which was a requirement for entertaining the appeal which was dismissed on this score alone. The petitioners, therefore, failed to avail of the remedy of appeal provided by the law. In Allah Bakhsh and another v. Muhammad Ismail arid others (,1987 SCMR 810) it was held as under:- "It is to be noticed that the petitioners had a remedy before the Board of Revenue. They did not avail of it within the prescribed time. This by itself was a sufficient ground for the dismissal of the Constitutional petition filed by them in the High Court." Yet in another judgment in the case reported as Messrs Tank Steel and Re rolling Mills (Pvt.) Ltd., D.I. Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77) the above proposition was further approved by their Lordships of the Supreme Court and it was held as under:- "The petitioners could but did not challenge the findings of the learned Banking Tribunal before the High Court in appeal as envisaged by section 9 of the first Ordinance. The learned Division Bench seized of the appeal directed the petitioners in pursuance of the first proviso to section 9(1) to deposit with the Banking Tribunal the decretal amount by a specified date. In view of failure of the petitioners to comply with the order of the Appellate Bench which was a condition precedent for entertainment thereof, the appeal was dismissed as withdrawn. The petitioners could have but had not challenged the order of the Appellate Bench of the High Court before this Court. Having not availed of this remedy, the impugned order of dismissal of the appeal attained finality." Following the above dictum of the Supreme Court petitioners in the instant writ petition have also not challenged the order of a learned Division Bench of this Court dated 25-5-1994 which has attained finality. The relief, claimed herein is not entertainable under the Constitutional jurisdiction of this Court.

9. As regards the objection with regard to maintainability of the petition in hand against the order of a learned Division Bench of the same High Court, it has been thoroughly discussed in the case of Messrs Tank Steel and Re-Rolling Mills (Pvt.) Limited (PLD 1996 SC 77) cited above as under:- "The learned counsel for the respondent No. 3 has taken strong exception to the competency of the writ petition before the High Court as in effect, final orders passed by the Appellate Bench of the High Court were challenged in the Constitutional petition. We entirely agree with the learned counsel for respondent No. 3 on the very maintainability of the writ petition. A bare reading of clause (5) of Article 199 of the Constitution of Pakistan would make it clear that the 'High Court' is not a 'person' to whom a writ of High Court can be directed. The obvious result is that the petition is barred by the provisions of the Constitution itself and the petitioners could not be granted any relief in writ jurisdiction of the High Court. It appears to us that the mere conferment of Constitutional jurisdiction on a Bench of the High Court does not have the effect of converting another Bench which exercises the appellate powers of the same High Court inferior to the former. This Court in Malik Feroz Khan Noon v. The State (PLD 1958 SC (Pak) 333) has approved the dictum laid down in the case of Goonesinha v. O.L.De Kretser (AIR 1945 PC 83) by the Privy Council that a writ of certiorari, which is in the nature of a revisional order and can only be issued to an inferior Court, cannot be issued by a superior Court to bring up an order made by a Judge of that Court. In Malik Feroze Khan Noon's case, the principle deducible is that when the Judges of the High Court function in different capacities under different jurisdiction, they do not act as different Courts but exercise the powers of the same Court and that distribution of those powers is not more than an internal arrangement among the Judges of the same Court." The decree passed by the Banking Tribunal could only be challenged in appeal under Section 9 of the Ordinance on legal as well as factual grounds, subject to the proviso attached to it which is an integral part of it. Otherwise no other Court can call it in question as envisaged by section 10 of the Ordinance. Even it cannot be challenged in a writ petition for the reason that the Ordinance itself has empowered a Division Bench of the High Court to hear an appeal against a decree or an order passed by the Banking Tribunal and without availing of the right of appeal writ could not lie. When the right of appeal is availed of and an order or judgment is passed by a Division Bench of the High Court, the same Court cannot entertain a writ petition against that order or judgment as concluded by their Lordships of the Supreme Court in the foregoing para of the judgment. Thus, there seems wisdom behind section 10 of the Ordinance which reads as under:- "

10. Finality of orders. --Subject to the provisions of appeal under section 9, no Court or other authority shall call, or permit to be called, in question any proceeding, order, judgment or decree of a Banking w'" Tribunal or the legality or propriety of anything done or intended to be done by the Banking Tribunal under this Ordinance."

10. As far as the prayer with regard to suspension of the impugned order is concerned, the execution of the impugned orders cannot be suspended because admittedly the judgment of the Federal Shariat Court referred to above has been challenged in appeal before the Supreme Court which has suspended the operation thereof. As held by a learned Division Bench of this Court in the impugned order dated 25-5-1994 that it is yet to be decided by the Supreme Court of Pakistan that whether mark-up falls within the definition of Riba or not.

11. For the foregoing reasons, this writ petition being not entertainable is dismissed in limine alongwith Civil Miscellaneous Nos. 799 and 953 of 1994. H.B.T./52/P Petition dismissed.