2004 PLP 532 (CLD)

Ihsan Ahmad Khawaja for Petitioners. Nemo for Respondents. Date of hearing: 22nd January, 2004. In a suit filed by the respondent No.2-Bank against the petitioners, in the Court of learned Judge, Banking Court, Rawalpindi, the petitioners were served. They put in appearance and sought leave to defend the suit. The learned trial Court heard the parties and granted leave to defend the suit. However, this was subject to furnishing of a bank guarantee in the sum of the principal amount which is more than Rs. Three million. This was done vide order dated 21-2-2001.

2. This writ petition came up on 20-3-2001 when it was admitted to regular hearing and a notice was issued. The operation of the said condition was suspended subject to furnishing by the petitioner of a security in the shape of surety bond for the suit amount to the satisfaction of the learned trial Court. According to the learned counsel, the said security has been furnished.

3. The respondent No.2 has been served and is represented by a learned counsel whose name stands listed in the cause list for today. No one, has turned up despite repeated calls. The said respondent is accordingly proceeded against ex parte.

4. Learned counsel for the petitioners draws my attention to section 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to urge that a leave granting order cannot be made subject to any condition. He also relies upon a Division Bench judgment of the learned High. Court of Sindh at Karachi in the case of Agrosofter (Pvt.) Ltd. and 2 others v. Judge, Banking Court Nb.5, Karachi and another PLD 1999 Karachi 398,

5. I have given some thought to the contention of the learned counsel. Now the said section 10 of the said Act, 1997 (under section 9 whereof the suit was brought) provides that where the learned Banking Court finds that a serious and bona fide dispute has been raised in the application filed by a defendant within 21 days of his service, it shall grant leave to defend the suit. It will thus be seen that in case the application is filed within 21 days and a serious and bona fide dispute is raised then the Banking Court is bound to grant leave to defend the suit. The law does not impose any other condition neither does it authorize the Banking Court to impose any other condition upon grant of leave to defend. In the said A judgment in the case of Agrosofter (Pvt.) Ltd., delivered by the Honourable Chief Justice Nazim Hussain Siddiqui (as his Lordship then was), the Division Bench headed by his Lordship interpreted the said section 10 in similar terms. I, therefore, do find that the impugned order inasmuch as it imposes the said condition of furnishing of bank guarantee in the said amount is wholly and without lawful authority. The writ petition is allowed and the impugned order dated 21-2-2001 of learned Judge, Banking Court, Rawalpindi, inasmuch as it imposes the condition of furnishing of bank guarantee to the extent of principal amount before 21-3-201 is declared to be without lawful authority and is set aside. No orders as to costs.

6. A copy of this judgment be remitted to the learned Banking Court, Rawalpindi. M.A.W./S-14/L Petition accepted.