1998 PLP 2352 (SCMR)

SAJJAD ALI SHAH, C.J.

Suit No.1481 of 1993 was filed by Atlas BOT Company against three defendants, namely, (1) Central Cotton Mills, (21 Munir Ahmad and (3) Kamran Nishat under section 8 of the Banking Tribunals Ordinance, 1981 for recovery of Rs.3,827,266 and for the possession of the leased vehicles and machinery and equipments. It is mentioned in the plaint that the plaintiffs and defendants entered into several lease agreements in respect of air-compressors, transformer and computer and the defendants were under obligation to make payments of the lease rentals on due dates and to pay other charges in terms thereof. The agreement also provided that in the event of default in the payment of lease rentals or other charges, the plaintiff was entitled to take back the possession of leased vehicles and machinery and equipment. A written statement was filed by all the three defendants jointly which is signed by them and their Advocate. Later, application dated 6-11-1993 for compromise was filed under Order 23,' Rule 3 of Civil Procedure Code whereunder it was agreed by the parties that defendants 1 and 2 shall keep the leased vehicles and equipments fully insured comprehensively and till the payment of decretal amount, they undertook not to part with the possession of the leased vehicles and equipments and shall produce them for inspection if so required by the plaintiff. The suit against defendant No.3 was withdrawn. The Banking Tribunal vide order dated 14-11-1993 decreed the suit in terms of the compromise as prayed with clarification that possession of the vehicles and equipments would not be claimed by the plaintiff in case there was no default on the part of the defendants.

2. On 14-2-1995, defendants 1 and 3, namely, Central Cotton Mills and Kamran Nishat filed an application under section 12(2) of the Code of Civil Procedure praying for setting aside the compromise decree on the ground that the same was obtained by fraud inasmuch as the Central Cotton Mills did not authorize Munir Ahmad or any one else to enter into the compromise, and in that context there was no resolution by the Board or Special Resolution passed in the General Meeting of the shareholders. It was alleged that Munir Ahmad at the instigation of Atlas BOT Lease Company and its lawyer had acted in breach of his fiduciary duties towards the Central Cotton Mills and Kamran Nishat. Another application was filed praying for recall of the order of attachment and possession of the leased vehicles and equipments. Other parties in the proceedings were put on notice, hence objections and counter-affidavits were filed and after hearing both the parties vide order dated 30-3-1995, the learned' Tribunal dismissed the applications with observation that there was nothing wrong or illegal in the compromise arrived at between the parties. Against this order, defendants Nos. l and 3, namely, Central Cotton Mills and Kamran Nishat (applicants in application under section 12(2). C.P.C.) filed Constitution Petition No.923 of 1995 in the High Court of Sindh which is dismissed in limine by a Division Bench vide order dated 1-5-1995 against which the petitioners have filed this petition in this Court for leave to appeal.

3. We have seen the order passed by the High Court dismissing in limme the Constitution petition on the grounds firstly, that there exists remedy of appeal under section 9 of the Banking Tribunals Ordinance against the dismissal of application filed under section 12(2), C.P.C. Secondly, section 10 of the said Ordinance provides that such order against which parties are aggrieved cannot be challenged or called in question in any proceedings except in appeal filed under section

9. Thirdly, decree passed on the basis of compromise cannot be set aside as prayed in the Constitution petition. Fourthly, Constitutional jurisdiction cannot be invoked if any other adequate or alternate remedy is available in that special law. Lastly, even if the matter was considered from the angle of the applicability of the Civil Procedure Code, than also a revision application could have been filed against the said order. We are unable to find any flaw or legal infirmity in the order passed by the High Court. Hence, leave is refused and this petition is dismissed as being devoid of merits. A.A./C-15/S Petition dismissed