2001 PLP 1537 (MLD)

Khiali Khan's case PLD 1997 SC 304 ref. (h) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑ ‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Arts. 199 & 203‑G‑‑ Constitutional petition‑‑Vires of S.15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Seeking of declaration that the Act was against Injunctions of Islam‑‑‑Jurisdiction of High Court‑‑ Validity‑‑‑High Court, by virtue of Art. 203‑G of the Constitution, had no jurisdiction to declare the provision against Injunctions of Islam. Muhammad Ramzan's case 2001 CLC 158 ref. (i) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Art (XV of 1997)‑‑‑ ‑‑‑‑Ss. 8 & 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Setting aside of mark‑up‑‑‑Suit against the petitioner was decreed by the Banking Court and execution petition was pending‑‑‑Petitioner deposited the decretal amount but failed to deposit mark‑up‑‑‑Application for setting aside of mark‑up was trot yet decided by the Bank Authorities and no such application was filed before the Banking Court‑‑‑Validity‑‑‑High Court declined to interfere in the matter and directed the petitioner to approach the Bank Authorities or the Banking Court for redressal of his grievance‑‑‑Constitutional petition was disposed of accordingly. Muhammad Aslam Khaki's case PLD 2000 SC 225 and U.B.L.'s case 2001 MLD 326 distinguished. Ashar Elahi for Petitioner. Briefly, the facts of case are that petitioner secured loan from respondent‑Bank; an agreement was also executed between the petitioner and respondent‑Bank. The respondent‑Bank filed suit for recovery against the petitioner before the Banking Court. The Banking Court passed the decree against the petitioner and nine others on 12‑9‑1998 amounting to Rs.1,895,584.75. The respondent‑Bank filed execution petition before the Banking Court. The Banking Court appointed Court auctioneer vide order dated 26‑6‑1999 for the sale of mortgaged property. Notices were issued to judgment‑debtors under Order 21, Rule 66, C.P.C. The judgment‑debtors did not file any objection petition. The Court auctioneer made six attempts to sell the property but the same could not be sold out. The petitioner was not in a position to satisfy the decretal amount so he did not file any objection petition before the Banking Court. During the pendency of execution petition the petitioner informed the Bank that petitioner is ready to liquidate his liability. The petitioner had re‑paid Rs.318,131.75 to the Bank for satisfaction of the decretal amount. The petitioner filed an application before Chief Manager of respondent‑Bank with the prayer that the petitioner wanted to re‑pay the whole decretal amount of Rs.1,577,453 after deducting the amount repaid after the decree who refused to accept the same as decratal amount and enhanced his claim/decretal amount under section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 claiming mark‑up pendente lite and post decretal amount. The petitioner being aggrieved filed this writ petition.

2. The petitioner's counsel submits that section 15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 have similar words used in this case which are used in sections 34 and 34‑A of C.P.C. he further submits that Hon'ble Supreme Court in Muhammad Aslam Khaki's case (PLD 2000 SC 225) has declared the aforesaid section of C.P.C. against Injunction of Islam; that Banking Court in similar case did not grant any interest/mark‑up. The bank being aggrieved filed appeal before this Court which was dismissed. In this behalf he has relied upon: U.B.L.'s case 2001 MLD 326 He further submits that action of respondent is in violation of Article 2A of the Constitution.

3. I have given my anxious consideration to the contentions of learned counsel for the petitioner and perused the record. The writ petition is not maintainable on the following reasons:‑‑ (i) There is no order by Chief Manager of Bank on application of petitioner dated 14‑3‑2001; when the petitioner's counsel is confronted with this situation he submits that Chief Manager or respondent‑Bank has decided the same against petitioner by their conduct and respondent‑Bank is pursuing its execution petition before the Executing Court. (ii) The petitioner has alternate remedy to file an application before Executing Court. It is settled proposition of law that in presence of alternate remedies the writ petition is not maintainable as is held in Muhammad Ismail's case (PLD 1996 SC 246). It is also settled principle of law that Constitutional jurisdiction is discretionary in character. It is also settled principle of law that he who seeks equity must come to the Court with clean hands. It is pertinent to mention here that decree was passed against petitioner on 12‑9‑1998 and petitioner did not agitate the same before this Court by way of appeal nor filed any objection petition before the Executing Court. In this view of the matter I am not inclined to exercise my discretion in favour of petitioner as the law laid down in Nawabzada Ronaq Ali's (PLD 1973 SC 236). The writ petition is also not maintainable against respondent No. 1 as is i held in:‑‑ Zain‑ul‑Abidin's case (PLD 1966 SC 445) It is also settled principle of law that judgment of Hon'ble Supreme Court has prospective effect and not retrospective effect as is held in: Muhammad Yousuf's case (PLD 1968 SC 101) It is pertinent to mention here that the Hon'ble Supreme Court in aforesaid case of Muhammad Aslam Khaki's case has held that no doubt interest/Riba is un‑Islamic but past and closed transactions are not to be re‑opened. It is also pertinent to mention here that Muhammad Aslam Khakis case was decided on 6‑7‑1999 whereas the Banking Court passed the decree against petitioner on 12‑9‑1998 alongwith other judgment‑debtors, the petitioner and others as mentioned above, did not challenge the same before any other higher forum and also did not file any objection petition before Banking Court. The judgment of Banking Court is binding on the parties on the well known principle of res judicata as the law laid down by the Hon'ble Supreme Court in the following judgment:‑‑ Pir Bakhsh and others' case (PLD 1987 SC 145), The decree was passed on 12‑9‑1998 and execution petition was filed by respondent‑Bank before the Banking Court. The execution petition is still pending adjudication. The petitioner has filed writ petition on 12‑4‑2001, the same is also liable to be dismissed on the well‑known principle of laches as is held in: Khiali Khan's case (PLD 1997 SC 304). The judgments cited by the petitioner's counsel are distinguished on facts and law as this Court has no jurisdiction to declare section 15 of the Banking Court against Injunction of Islam by virtue of Article 203‑G of the Constitution and the law laid down by Division Bench of this Court i Muhammad Ramzan's case (2001 CLC 158). Since the petitioner has raise aforesaid contention, therefore, I am constrained by the circumstances t decide the same in case the petitioner approaches respondent‑Bank or the Executing Court for redressal of his grievance, then respondent‑Bank c Executing Court shall decide the matter without being influenced by the aforesaid observations. Disposed of accordingly. Q.M.H./M.A.K./I‑46/L Order accordingly.