2002 PLP 242 (CLD)

______________ In consideration of the above finances the defendant executed and deposited with the plaintiff the following documents:‑‑ (a) Promissory Notes. (b) Undertaking. (c) Credit Agreement. (d) Lease Deeds. (e) Letter to create Equitable Mortgage. (f) Letter of Hypothecation. (g) Property documents. The defendant also mortgaged its Plots bearing Nos.5, 6, 7, 13 and 14, Sector A/6, admeasuring 5000 sq. meters situated in the Export Processing Zone Karachi and also hypothecated the goods which were in the above‑mentioned factory and were to be exported in favour of the plaintiff‑Bank. The defendant failed to fulfil its obligations within the stipulated a period and failed to make payment of the outstanding amount on one or the other pretext, therefore, the plaintiff filed the present suit with the following prayer:‑‑ (a) A decree for a sum of US $ 28,31,876.68 with future interest from the date of filing of the suit till realization of the entire amount. (b) Compensatory cost under section 173 of the Contract Act. (c) Final decree for sale of the mortgaged and hypothecated goods. (d) The cost of the suit. The defendant despite service through publication in daily newspapers "daily Dawn" and "daily Jang" dated 5‑5‑2001 as well as through courier and registered post A/D did not appear to defend the suit. Mr. Rizwan Ahmed Siddiqui, Advocate for the plaintiff; contended that extension of time in re‑payment of finances for its re‑structuring or renewal of for payment or extension of time in payment of any other amounts relating to finance or liquidated damages is allowed under the term 'obligation' as en envisaged in section 2(e) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the term 'obligation' is a part of finance which is evident from the definition of the term 'finance' as provided in section 2(d)(111) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which is placed below: "2(d)(lii) Facility of guarantees, indemnities, Letters of Credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institutions." His contention is that in this provision the word "obligation" has been used as 'finance' and the term 'obligation', has further been elaborated in section 2(e) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. His next contention is that the Financial Institutions (Recovery of Finances) Ordinance, 2001 promulgated in pursuance of Proclamation of Emergency on the 14th Day of October, 1999 and Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No.9 of 1999, and in exercise of all powers enabling the President of the Islamic Republic of Pakistan to frame this law, and being the Special Law, this Court is bound to follow this law in its strict sense as held in Reference No. l of 1988 made by the President of Pakistan reported in PLD 1989 SC

75. Relevant portion is reproduced as under:‑‑ "it is well‑established that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performances are necessarily forbidden. This principle would apply (B with greater force when a Constitutional provision has provided for a method of performance and prescribed a limitation of time for the doing of a thing. This would imply that any contrivance which would amount to circumventing the Constitutional provisions is necessarily prohibited." Further section 4 of Financial Institutions (Recovery of Finances) Ordinance, 2001 had overriding effects hence all the previous banking laws, BCD Circulars of the State Bank of Pakistan with regard to the finances/loans stand abrogated in pursuance of this section. Section 4 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is re produced as under:‑‑ . "

4. Ordinance to override other laws.‑‑‑The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." In view of the above facts and law and keeping in view that the contentions of the plaintiff have gone unrebutted and unchallenged, the suit is decreed in favour of the plaintiff‑Bank in the sum of US $ 28,31,876.68 together with mark‑up for the agreed period and the cost of funds as allowed under section 3(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 subject to production of the certificate from the State‑ Bank of Pakistan for the remaining period from the due dates for payment till recovery of the amount. However, as defendant did not defend the suit, there will be no order as to costs. Q.M.H./M‑274/K Suit decreed.