2003 PLP 284 (CLD)

Ch. M. Masud Akhtar for Respondents. As we are inclined to decide the main appeal, therefore, this application cannot be entertained, thus disposed of. However, the documents annexed with this application are allowed to be placed on record. The present appeal, filed by the Agricultural Development Bank of Pakistan proceeds against order, dated 10‑6‑2002, whereby the learned Judge Banking Court, on an application filed by the respondent for the grant of interim relief, directed the appellant Bank to deliver the title documents to the respondent/ plaintiff.

2. Facts leading to the filing of the present appeal are that the respondent/plaintiff obtained some financial facilities from the appellant‑Bank arid it reportedly committed default, however the matter was settled under some incentive scheme, introduced by the appellant‑Bank, by allowing remission to the respondent to the tune of Rs.2.295 million statedly, upon the undertaking to withdraw same litigation against the appellant‑Bank. Subsequently, the respondent/plaintiff filed a suit for rendition of accounts, declaration damages and mandatory injunction before the learned Banking Court alongwith an application for the grant of mandatory injunction. Pursuant to the receipt of summons, issued in accordance with law, the appellant‑Bank filed an application seeking leave to defend the suit. During the pendency of the said application, the learned Banking Court, after calling for the reply to the application for the grant of mandatory injunction, directed the appellant‑Bank to deliver the documents to the respondent/plaintiff vide order, dated 10‑6-2002, which order has been called in question through the filing of the instant appeal.

3. The learned counsel for the appellant had contended that the learned Court has in fact granted the main relief to the respondent at the time of hearing of the application for the grant of interim relief and that no application can be entertained by the Banking Court, under the law unless the leave to defend has been granted to the other side. Conversely the learned counsel for the respondent has vehemently asserted that after the liquidation of the loan liabilities by the respondent and the issuance of letters, dated 28‑1‑2002 and 9‑2‑2002, appellant‑Bank is not entitled to retain the security documents and they are under obligation to return the same, thus the impugned order is not liable to be interfered.

4. We find from the record that pursuant to the issuance of summons to the appellant‑Bank, it filed an application for leave to defend the suit, before the learned Banking Court, which is still pending un-disposed. During the pendency of that application, the learned Judge Banking Court entertained the application for the grant of interim relief and allowed the same: As is evident from the title of the plaint that the suit was filed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, wherein the appellant‑Bank filed an application for leave to defend the suit. After the receipt of the said application the learned Banking Court was obliged, under the law, to have decide the application as per the provisions of section 10 of the Ordinance, 2001. In his case we find that although the application for leave to appear and defend the suit was filed on 20‑2‑2002, yet the same has not been decided after the lapse of more than even months, Upon the examination of the record of the case, we do not find any plausible justification for the pendency of the leave application for such a long period. In our view the learned Banking Court before embarking upon to decide the application for the grant of interim relief ought to have decided the application for leave to defend the suit and thereafter proceeded to decide the suit including the miscellaneous application. It has been held in Messrs Platinum Insurance Company through Chief Executive v. Messrs Highways Bridge, Contractor International (Pvt.) Ltd. and another (1997 MLD 2394) that "A Court before grant of leave to defend could neither dismiss the suit nor pass any adverse order against the plaintiff on objection/assertion of the defendants". It is established law that till the time, an application to leave is decided no interlocutory application can be entertained. If any case‑law is needed, the case reported as Messrs United distributors Pakistan Limited v. Ahmad Zarie Services and another (1997 MLD 1835) can be referred.

4. On the pointation of the learned counsel of the respondent, we have examined the contents of letters, dated 28‑1‑2002 and 9‑2‑2002 and find that the appellant Bank did address these letters to the respondent, wherein the respondent was required to receive the security documents. We have refrained ourselves from giving findings on these letters, as we are inclined to direct the learned Judge Banking Court to decide the application for interim relief afresh after the disposal of the application for the grant of leave to defend the suit, lest these findings may prejudice the case of either parties before the learned Judge Banking Court.

5. Another factor, which has compelled us to remand the case to the learned Judge Banking Court, is that the impugned order is perfunctory, slipshod, devoid of reasons and is not a speaking order, thus not sustainable in law being in counter‑version of law declared by the Hon'ble Supreme Court of Pakistan in various cases like Adamjee Jute Mills Ltd. v: The Province of East Pakistan and others (PLD 1959 SC (Pak.) 272), Gouranga Mohan Sikdar v. The Controller, Import and Export and 2 others (PLD 1970 SC 158), Mollah Ejabar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others (1984 SCMR 1014).

6. Upshot of the above discussion is that the present appeal is allowed and the impugned order, dated 10‑6‑2002 is hereby set aside with no order as to costs. The result would be that the application for the grant of interim relief, filed by the respondent, shall be deemed to be pending before the learned Judge Banking Court, who is directed to, at the first instance, decide the application for the grant of leave to defend the suit, filed by the appellant Bank, and thereafter to decide the application for the grant of interim relief, after hearing all the parties, and of course, in accordance with law. S.A.K./A‑650/L Order accordingly.