2004 PLP 1348 (CLD)

CH. IJAZ AHMAD, J.‑‑‑Brief facts out of which the present appeal has arisen are that appellants filed suit for specific performance of contract alongwith recovery of Rs.2 Crore as damages in the Court of Senior Civil Judge, Sheikhupura. Respondents filed the written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the issues. The respondents also filed an application under Order 7, rule 11, C. P. C., which was accepted by the trial Court vide order dated 19‑6‑1998, and the plaint was returned to the appellants for filing before the Banking Court. Appellants being aggrieved filed F.A.O. No.197 of 1998, before this Court, the appellants have ultimately withdrawn the same from this Court. The appellants refiled the same before Banking Court II, Lahore. Appellants filed an application that the suit of the appellants be decreed as the respondents failed to file application for leave to appear and defend the suit. The respondents also filed subsequently application for leave to defend. The learned Banking Court dismissed both the applications of the parties vide the impugned order dated 14‑2‑2000 and fixed the case for evidence of the appellants/ plaintiffs. Appellants being aggrieved filed this appeal.

2. Learned counsel for the appellants submits that the Banking Court erred in law to dismiss the application of the appellants which is not in consonance with the provisions of he Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997. He further submits that it is the duty and obligation of the respondents to file an application for leave to appear and defend the suit before the Banking Court within 21 days in view of the mandatory provisions of Order XXXVII, C.P.C., therefore, the Banking Court erred in law to dismiss the suit. He further submits that the Banking Court committed material irregularity while dismissing the application of the appellants through the impugned order in violation of the mandatory provisions of Act XV of 1997 and Order XXXVII, C. P. C.

3. Learned counsel for the respondent submits that the appeal is not maintainable in view of section 21(5) of Act XV of 1997 as the impugned order is of interim nature. In support of his contention he relied upon Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961. He further submits that the issues have already been framed by the Civil Court, therefore, the Banking Court shall have to proceed from that stage in view of section 7(6) of the aforesaid Act of 1997. He further submits that no notice was sent by the Banking Court to the respondent/ defendant in terms of section 9(3) of Act XV of 1997 and also copy of the plaint was not sent to the respondent/ defendant in terms of Appendix 4 read with Order XXXVII, C.P.C. In support of his contention he relied upon the judgment reported as M. Anwar Saleem v. United Bank Limited and others 2002 CLD 251 and Muhammad Nadeem Butt v. United Bank Limited 2000 CLC 1436. He further urges that the impugned order is valid and is in accordance with the law laid down by the Honourable Supreme Court. In support of his contention he relied upon Messrs Qureshi Salt and Species Industries Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353.

4. Learned counsel for the appellants in rebuttal submits that the Banking Court has decided the application of the appellants finally, therefore, the appeal is maintainable under section 21 of Act XV of 1997. In support of his contention he relied upon Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCMR 261 and Abdul Qadir, etc. v. Haji Shakar Khan Barech 1987 CLC 1816.

5. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and perused the record. It is better and appropriate to reproduce section 21(5) of Act XV of 1997, to resolve the controversy qua the maintainability of the appeal, which reads as under:‑‑ Section 21 appeal ...... (5) No appeal, review or revision shall lie against any interlocutory order of the Banking Court other than an order passed under subsection (6) of section

18. Bare reading of the aforesaid provision of law reveals that the appeal is not maintainable. It is settled principle of law that each and every case is to be decided on its peculiar circumstances and facts. The judgments cited by the learned counsel for the appellants are distinguishable as the judgments cited by the learned counsel for the appellants arises out of general law whereas in the special law it has been expressly provided in section 21(5) of Act XV of 1997, that the appeal is not maintainable against the interim order as the law laid down by the Honourable Supreme Court in Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961. It is also a settled principle of law that special law excludes the general law as per the law laid down in The State v. Zia‑ur‑Rehman and others PLD 1973 SC

49. The other contentions raised by the learned counsel for the appellants have no force in view of the law laid down in Messrs Qureshi Salt and Species Industries Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353. In view of what has been discussed above, this appeal has no merits, thus, the same is dismissed, leaving the parties to bear their own costs. M.A.W./M‑115/L Appeal dismissed.