2001 PLP 651 (YLR)

I intend to decide the following writ petitions by one consolidated order having similar facts and law: Writ Petition No.8995-2001; Writ Petition No.8950-2001 and Writ Petition No.9003-2001. The brief facts out of which the present writ petition arises are that the petitioners or their predecessor-in-interest secured loan from respective respondents. Agreements were also executed between the petitioners or their predecessor-in-interest and respective respondents. According to the terms and conditions of agreements the petitioners have to repay the loan to respective respondents in easy instalments.

3. The learned counsel for the petitioners submit that petitioners had already repaid loan to the respective respondents more than principal amount and remaining amount claimed by, respective respondents is interest/Riba which has already been declared un-Islamic by the superior Courts. In support of their contentions they relied upon the following judgments:

(Muhammad Aslam Khaki's case (PLD 2000 SC 225) and Mehmood ur-Rehman's case (PLD 1992 FSC 1). They further submit that petitioners approached the respective respondents to discharge their liabilities in easy instalments. They further urged that action of respondents is not valid and is in violation of mandatory provisions of H.B.F.C. Act and Banking laws. They further submit that respondents failed to give benefit to the petitioners under the incentive scheme issued by respective respondents off and on; that respondents failed to provide statement of accounts to the petitioners. The respondents without lawful authority demanded the interest from the petitioners and issued demand notice to the petitioners. The respondents failed to consider the request of petitioner to discharge their liabilities in easy instalments. The petitioners' counsel further submits that inventive scheme issued by the respondents is hit by Article 25 of the Constitution as the incentive scheme issued by respondents which reveals that respondents had given benefit to the persons who did not pay a single penny whereas the petitioners had repaid huge amount to the respondents. The respondents adjusted the amount deposited by petitioners ,towards the principal amount in violation of rules and regulations and agreements. The learned counsel further submit that agreement executed between the petitioners and respondents is void.

4. I have given my anxious consideration to the contention of learned counsel for the petitioner and perused the record. It is admitted fact that the petitioners and respective respondents executed agreements of their own sweet-will. The petitioners want enforcement of agreement through these Constitutional petitions which is not permissible in the eyes of law as the principle laid down in Mumtaz Masood's case (1994 SCMR 2287). As far as the charge of interest is concerned, this Court in view of Article 203-G of the Constitution has got no authority to determine the same as per principle laid down by the Division Bench of this Court in Muhammad Ramzan's case (2000 CLC 158). The Hon'ble Supreme Court in the aforesaid case of Muhammad Aslam Khaki has held that no doubt interest/Riba is un-Islamic but past and closed transactions are not to be re-opened. It is settled principle of law that writ petition against show-cause notice is not maintainable as is held in Shagufta Begum's case (PLD 1989 SC 360). It is also settled principle of law that this Court has no jurisdiction to resolve the disputed question of law as is held in Muhammad Younas Khan's case (1993 SCMR 618). It is also admitted fact that petitioners have alternate remedies under the law either to approach the respondents or to file civil suit before the competent Court. In this view of the matter writ petitions are not maintainable as the law laid down in Muhammad Ismail's case (PLD 1996 SC 246). The petitioner's counsel have argued that petitioners have already paid more. than principal amount to the respective respondents, therefore, balance amount claimed by the respective respondents is not borne out from the record of petitioner and respondents filed to supply copy of statement of accounts to petitioners. The respondents also failed to consider the cases of petitioners under incentive scheme issued by respondents off and on. In this view of the matter, the petitioners are directed to appear before the Manager of respective respondents on 15-6-2001 to discharge their liabilities strictly in accordance with law, rules and notification read with terms of the agreement. The Manager of respective respondents shall allow them any benefit/concession permissible in such-like cases under the law, rules and notification. The Manager of respective respondents shall also consider the request of petitioners to discharge their liabilities in easy instalments in the interest of respective respondents and to save the families of petitioners from destructions. The Manager of respective respondents has already directed would determine liabilities strictly in accordance with law and rules. Till determination, which of course would be completed expeditiously till 15-8-2001; the petitioners shall not be harassed till the aforesaid date. Since the respondents have initiated proceedings against guarantor without initiation of any proceedings against the original loanee. This fact brings the case that Managers of respective respondents are not acting in accordance with law meaning thereby that they are acting in violation of the spirit of Article 4 of the Constitution which cast duty upon them to act in accordance with law without fear, favour and nepotism. In all fairness Financial Institutions and its functionaries should apprehend the original loanees and in case of non-satisfaction of loan money, financial institutions should have taken action against the sureties or guarantors. There is no doubt that guarantors stood surety for original loanees but I am of pains to know that in certain cases the financial institutions have not initiated proceedings against the original loanees. This fact brings the case in the area that public functionaries are not acting in accordance with law. Let copy of this order be sent to President, Chairman, A.D.B.P., Islamabad, Managing Director, H.B.F.C. S.B.F.G. Finance Secretary, Government of Pakistan and Finance Secretary, Government of Punjab, who are directed to look into what is happening in financial institutions that people are victimized without any justification and formulate policy that respective Manager must initiate proceedings in accordance with law against the original loanee as well as guarantors and submit report to D.R.(J) of this Court within the stipulated period. Disposed of. Q.M.H./M.A.K./M-585/L Order accordingly,