2011 CLD 1018 (PLP)

SYED HASAN AZHAR RIZVI, J.

The petitioners have filed this Constitutional Petition with the following payers: (1) Declare that alleged cost of funds of respondent No.4 (BEL) (under liquidation since the year 2000 in JM No.15 of 2000) fixed by the respondents Nos.1 and 2 (State Bank of Pakistan) at 8.72% with retrospective effect from the year 1999, vide impugned letter dated 29-4-2009 (Annex P/10 herewith), at the alleged average of cost of funds of currently operating DFIs, by taking into consideration their audited Financial Statements Balance Sheets for the year 2007, is illegal, without jurisdiction and/or in excess of jurisdiction, having no legal effect. (2) Permanently restrain the respondent No.4 (BEL) (under liquidation since the year 2000) from claiming or recovering the cost of funds from the petitioners @ 8.72% fixed by the respondents Nos.1 and 2 vide impugned letter dated 29-4-2009 (Annex P/10) on the basis of and by taking into consideration the Financial Statements/Balance Sheets of other currently operating DFIs. (3) Grant any other further relief or reliefs which this Honourable Court may deem fit and proper in the circumstances of the case. (4) Grant cost.

2. Precisely the facts leading to the case are that the respondent No.4 is under liquidation in JM No.15 of 2000 (Karachi Electric Provident Fund v. Bankers Equity Ltd. and another) pending before this Court on Original Side whereby it has been ordered to be wound up vide order dated 18-4-2001 on the ground that the reports of external auditors revealed that the respondent No.4 incurred loss of Rs.4.00 Billion against its capital of Rs.0.566 Billion and does not possess any security to raise resources from the market and as such claims to be insolvent and unable to pay its debts, whereas the petitioners, who are mortgagors of their mortgaged properties in Exh. No.66 of 2003, are liable to pay a sum of Rs.10.00 Million with cost of funds to the respondent No.4 w.e.f. 31-8-2001 when Financial Institutions (Recovery of Finances) Ordinance, 2001 was promulgated, under two separate decrees passed by this Court in Suit No.B-180 of 2000, dated 2-12-2002 against petitioner No.1 and decree dated 13-2-2008 against petitioners Nos.2 and

3. Hence, this petition.

3. It was, inter alia contended by Mr. Badar Alam, learned counsel for the petitioners, that after passing the decree it transpired that the respondent No.1 had never certified the cost of funds of the respondent No.4 in terms of section 3 of the Ordinance, 2001, as the said Ordinance 2001 was promulgated on 31-8-2001 whereas the respondent No.4 was under liquidation in JM No.15 of 2000 dated 8-5-2000 and vide order dated 18-4-2001 it was ordered to be wound up.

4. According to the learned counsel, the respondent No.4 incurred heavy loss and claimed to be insolvent, due to which audited balance sheet of the respondent No.4, which is mandatory requirement was ever submitted to the respondent No.1 for certification of its cost of funds, so that the petitioners being unaware as to what decretal amount had to be paid by them, could not bring any offer for purchasing of any of their two mortgaged properties. On 28-5-2008, a statement has been filed by the learned counsel for respondent No.4 before learned Official Assignee along with a calculation sheet showing alleged rates of cost of funds at 1.20 % for a period from 31-8-2001 to 31-7-2005, 6.15 % for a period from 1-8-2005 to 13-10-2005, at 7 % to 9 % for remaining period till 8-3-2008.

5. Learned counsel further submits that the petitioners have been supplied a copy of letter dated 29-4-2009 issued by the respondent No.2 under the covering letter of learned Official Assignee, wherein respondent No.2 intimated to the learned Official Assignee that the cost of funds of the respondent No.4 is 8.72 % computed as average cost of funds of the currently operating DFIs on the basis of annual financial statement for the year 2007.

6. It was next contended that after promulgation of the Ordinance, 2001, the respondent No.1 for the first time in January 2002, certified the cost of funds of the then operating DFIs on the basis of their annual audited accounts and intimated the same through its separate circulars to all such DFIs. It was further contended that the respondent No. 1 has acted illegally and in excess of jurisdiction in fixing the cost of funds of the respondent No.4 having retrospective effect from the year 1999, which is against the Islamic Banking System and modes of financing, wherein there is no scope of granting markup in the shape of cost of funds and there is no such law or order of the Court, which compel the respondent No.1 to fix the cost of funds of respondent No.4 in absence of its annual audited accounts of each year when the Ordinance, 2001 was promulgated.

7. On the other hand, Mr. Hassan Akbar, learned counsel appearing on behalf of the respondent No.1, argued that the instant petition is not maintainable under the law, as once the judgment and decree have attained the finality, the same cannot be challenged in the writ jurisdiction, when the appeal against the judgment and decree have become barred by the law of limitation. According to the learned counsel, alternate and efficacious remedy has not been availed by the petitioners. The allegations levelled by the petitioners require evidence, which cannot be done in the writ jurisdiction.

8. It was next contended that no mandatory provisions of law have been violated by the respondent No.1. According to him, the cost of funds has been calculated and notified on the basis of annual audited accounts. Learned counsel further argued that the respondent No.4 is under liquidation since 2000 whereas the Ordinance, 2001 has been promulgated 2001. The facts narrated in the instant petition have not been depicted as it is so, since cost of funds has been calculated at the request of learned Official Assignee. According to the learned counsel, section 3(2) of the Ordinance, 2001 is a mandatory provision and no formula is provided under the said Ordinance, therefore, the formula applicable to all other DFIs was applied and the average of last available audited accounts of DFIs for the year 2007 were applied. Even no illegality and/or violation has been committed while applying best available formula for calculating the cost of funds. It was next argued that since it is a case of first impression, therefore, there is no question of retrospective effect is involved. Finally, learned counsel prayed that the instant petition is not maintainable and may be dismissed.

9. Mr. Muhammad Ali Hakro, learned counsel appearing on behalf of the respondent No.4, argued that the judgment and decree have been passed against the petitioners in the year 2002 and have attained finality against which no appeal was preferred by the petitioners and that the petitioners cannot escape from payment liability arising out of such decree by taking indirect shelter of the instant petition. It is well settled law that in presence of alternate and efficacious remedy, constitutional petition cannot be maintained. According to the learned counsel, the respondent No.4 itself sent financial statement of year 1999 to the respondent No.1 prior to the period of liquidation and this is only available document on the basis of which the cost of funds has been computed as 8.72 % while considering the audited current accounts of DFIs for the year 2007 in view of best available formula provided by the respondent No. I. According to the learned counsel, any order passed in favour of the petitioners in the instant petition, would deprive the respondents as well as the creditors from recovering the lawful decretal amount.

10. We have heard the learned counsel for the petitioners and the learned counsel for the respondents as well as perused the material available on record with their able assistance.

11. Prima facie, it appears from the prayer of the petitioners made in the instant petition, that they have challenged the cost of funds claimed by the respondents. Vide order dated 18-4-2001, J.M. No.15 of 2000, (filed for winding up the Bankers Equity Limited, respondent No.4 herein), was allowed and the respondent No.1 was directed to appoint Official Assignee as liquidator of the respondent No.4 for liquidation proceedings. The respondent No.4 filed a Suit bearing No.B-180 of 2000, consequent thereto two separate decrees dated 2-12-2002 and 13-2-2008 have been passed. On 13-2-2008, by consent decree dated 28-5-2003 has been modified with the following observations:-- "In light of the above citations and the provisions of law and by consent of the parties, the decree is modified for amount of Rs. 10 million along with cost of the funds from the date of the promulgation of the Ordinance dated 31st August 2001 till realization of the amount."

12. Nowhere appears from the record that the said decrees have been challenged before any forum, though alternate and efficacious remedy was available under the law. Even decree has been modified with the consent of the parties and filing of the instant petition appears to be an afterthought. The petitioners should have satisfied the decree instead of filing of the instant petition.

13. We are in agreement with the learned counsel for the respondents that the allegations levelled against the respondents, which require evidence and the same cannot be done in the writ jurisdiction as the scope of petition is very limited and these types of controversies cannot be entertained in the extraordinary constitutional jurisdiction. If the petitioners were aggrieved with any order passed by this Court and/or decrees which were passed even modified with the consent of the parties, they should have approached the competent forum provided to them under the law instead of invoking the instant petition. Moreover, we find no illegality or irregularities committed by the respondent No.1 in calculating the cost of funds, as the Bankers Equity was under liquidation since 2000 whereas the Ordinance 2001 was promulgated in the year 2001, therefore on the basis of last available audited accounts of BEL for the year 2007, the average cost of funds for DFIs was calculated at the rate of Rs.8.72% as per formula provided by the Banking Policy and Regulation Department of the respondent No.1.

14. In view of the above discussion, we are of the opinion that the petitioners have failed to prove their case on merits. Even this constitutional petition is not maintainable under the law as laid down by the honourable apex Court in a number of cases. Reference can be made to the case of WEALTH TAX OFFICER AND ANOTHER V. SHAUKAT AFZAL AND 4 OTHERS (1993 SCMR 1810), wherein it has been observed that availability of statutory remedy invoking Constitutional jurisdiction of High Court abandoning or bypassing statutory remedy without reasonable cause was not justified.

15. Consequently, this petition is dismissed as not maintainable. S.A.K./S-66/K Petition dismissed.