2013 PLP 836 (CLD)

KH. FAROOQ SAEED, J.

This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is against the order dated 28-9-2006 passed by Judge Banking Court, Rawalpindi, on the application under first proviso of the said Act, filed by the appellant in Suit No.473 of 2005.

2. The brief facts leading to this F.A.O. are that the appellant banking company filed a suit against the respondent under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, for recovery of Rs.27,42,980/85 along with cost of funds, markup, liquidated damages and other charges till date of realization of the amount. The appellant specifically stated therein the detail of the amount as following:-- "(A) Principal Amount availed from 21-2-2002 to 30-11-2005 Rs. 54,95,987.82 (B) Principal Amount repaid from 21-2-2002 to 30-11-2005 Rs. 41,94,098.91 (C) Charges debited to A/C. from 1-8-2002 to 30-11-2005 Rs.31,000 (D) Total principal amount outstanding as on 31-11-2005 Rs.13,32,078.91 (E) Total mark-up outstanding as on 30-11-2005 Rs.14,10,901.94 Total amount outstanding as on 30-11-2005 (D + E) Rs.27,42,980.85"

3. The Judge Banking Court has decreed the recovery of Rs.13,54,027 and calculated the amount of markup from July 2004 to 18-10-2004 @ Rs.25,

948. The decree was, however, subject to cost of suit and cost of funds from the date of default i.e. 18-10-2004 to till realization of the decreetal amount. The appellant filed an application under proviso of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The application was decided by the learned Judge Banking Court vide its order dated 28-9-2006 through which the learned court refused to modify its order. It has inter alia been held that section 27 deals with correction of clerical errors while there is no clerical error in the judgment. There is no omission and that the judgment is bona fide and has been announced after proper application of mind.

4. Learned counsel contends that the term clerical mistake is quite wide and cover the situation under discussion. His reliance is upon (2005 CLC 296) re: "Aisha and others v. Molvi Abdul Sattar". Further reliance has been placed on (PLD 1952 Lahore 587) re: "Crown v. Habibullah and others" whereby, the Hon'ble High Court having referred to Wharton's Law Laxicon found that an error in a document, can only be explained by considering it to be a slip or mistake of the party preparing or copying it learned Court then observed that one might usefully add the word omission to the phrase 'slip or mistake'. When an error of that kind has been committed it is always within the competency of the Court, if nothing has intervened, which would render it inexpedient or acquitable to do so, to correct the record in order to bring it in harmony with the order which the Judge obviously meant to announce. The appellant further relied on (2005 CLD 206) re: "Bank Al-Falah Ltd. v. Messrs Bilal Spinning Mills Ltd. and another" to conclude that 'error of law' or 'non- consideration' of any particular by a banking court while rendering any decision, order, judgment; can be corrected by the Banking Court.

5. Learned counsel for the respondent contends that the interpretation sought by the appellant is beyond the scope of the provision of law. The term 'clerical error' even if one relies upon the definition produced by the learned counsel for the appellant, does not give any impression that it can be extended to 'review' or 'revisit' an order by a Judge, Banking Court.

6. Learned counsel went on to argue that the legislature is particular in using the phrase 'clerical error' and it cannot be interpreted beyond its scope as the same shall be like entering into the legislation. The courts while interpreting the law are bound to remain within the language thereof and cannot extend or reduce the scope of a provision of law under the garb of the interpretation. He relied upon (2005 CLD 206) re: "Bank Alfalah Ltd. v. Messrs Bilal Spinning Mills Ltd. and another" which in fact the same judgment which has been referred by learned counsel for the appellant. Reliance was placed on (2006 CLD 163) re: "Shaikh Kamran Maqbool v. Bolan Bank Limited through Manager and another", to submit that review of an order is a substantial right. It cannot be exercised by extending arms under rectification of mistake, correction of clerical error or correction of omission.

7. We have heard the learned counsel for both the parties and have also perused the record.

8. The para, in which, as per appellant there is a clerical error, is on the second page of the original order of Judge Banking Court, the same speaks as follows:-- "As per direction of the court the plaintiff has filed a fresh summary statement of account according to which the defendants in total availed a sum of Rs.54,95,987 and have repaid an amount of Rs.41,94,908 up till 18-10-2004. Therefore, the remaining balance outstanding against defendants again comes to Rs.13,32,

079. In this amount mark up from the month of July, 2004 to October is not included. The amount of mark up from July 2004 to 18th October, 2004 comes to Rs.25,

948. In these circumstances, the suit of the plaintiff is decreed for recovery of Rs.13,58,027 against the defendants jointly as well as severally with costs of the suit and costs of funds from the date of default i.e. 18-10-2004 till realization of whole of the decreetal amount."

9. The above para is clear in its application. Learned Judge Banking Court has given its judgment after due consideration of the arguments and issues and there is no cavil about the same. In fact in its subsequent findings given while deciding application under section 27 learned Judge has reconfirmed his earlier decision. The above observations could be challenged through appeal, but does not give any impression of any omission or clerical error.

10. Even otherwise, the provision in its application is clear and unambiguous. The clerical error as has been reproduced by us in the upper part of this judgment means omission of a kind which if corrected does not change the effect of the main order. If such correction of error ends, increases, or reduces the liability, it would amount to review or revisit, which is not covered even by the definitions produced by the appellant's counsel. If one accepts the argument of the appellant, what he is trying to impress upon is that the decree should have been for greater amount than what learned Judge Banking Court has announced. This obviously will prejudice the case of the respondent to a further extent than the present order. Enhancement of the liability cannot be done through 'correction of clerical error' or omission or typographical mistake'. In fact the judgment referred by the appellant and then relied upon respondent as well, has clinched the issue but not in favour of the appellant. The Hon'ble Sindh High Court Karachi while discussing the scope of section 27 has observed as follows:-- "In my humble estimation, even error of law or non-consideration of any particular provision by a Banking Court while rendering any decision, order, judgment or sentence cannot be revisited by the Banking Court it view of limitation to exercise the jurisdiction as laid down under section 27 ibid. When the legislature deliberately has placed a limitation on exercise of such powers, same cannot be drawn, extended or stretched by invoking provisions of general law as such exercise will defeat the very purpose of the Banking Ordinance, 2001."

11. There is, therefore, no cavil with regard to the interpretation of the above provision of law. It leaves no doubt that Courts cannot extend its arms under the garb of correction of a clerical error so as to increase a liability. Obviously, a Banking Judge cannot be allowed to sit an appellate authority against its own order. Review or revisiting or correcting an error, which changes the fate of the judgment and decree is beyond the scope of section 27, which has a very restricted application.

12. The above discussion obviously concludes that the refusal of the application under section 27 through impugned order is lawful, justified and needs no interference. Dismissed. KMZ/A-29/L Appeal dismissed.