2014 PLP 1452 (CLD)

M. SOHAIL IQBAL BHATTI, J.

The facts of the case are that the respondent No.2 (Bank Al-Falah Limited) filed a suit for recovery of Rs.12,18,035.73 against the petitioners on 11-8-2011 under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as the "Ordinance, 2001"). The petitioners were duly served and filed an application for leave to defend the suit under section 10 of the Ordinance, 2001. The Banking Court after receiving a reply to the application through an impugned order dated 22-5-2012 dismissed the application for leave to defend the suit and adjourned the case to 5-6-2012. Aggrieved by the order passed by the learned Judge Banking Court, Bahawalpur, the present writ petition has been filed.

2. The learned counsel for the petitioner submitted that the petitioners have raised substantial questions of law and fact as envisaged in section 10(8) of the Ordinance, 2001 and the impugned order dated 5-6-2012 is illegal, in excess of jurisdiction and therefore of no legal effect.

3. Conversely, the learned counsel appearing for the respondent bank has raised an objection regarding maintainability of this writ petition, contending that the instant writ petition is not maintainable as having been filed against an interim order.

4. The learned counsel for the respondent No.2 has placed reliance on case titled Al-Shamas Apparel (Pvt.) Ltd. through Chief Executive and 3 others v. Muslim Commercial Bank Ltd; through Chief Manager/Manager Shadman Colony Branch, Lahore and another (2002 CLD 1407).

5. It would be expedient to refer to the history of the legislation relating to recovery of banking loans. Initially the banking companies, like others were using the forum of civil courts for the settlement of their disputes with the customers, except some exceptional matters; they were treated as ordinary litigants. No special privilege was attached to the Banking Companies /Financial Institutions and a lengthy procedure was required to redress their grievances. For the speedy disposal of the disputes of the Banking Companies with their customers, Banking Companies (Recovery of Loans) Ordinance, 1978 was promulgated which was further re-enacted with certain modifications. Special Banking Court was established and special summary procedure was adopted for disposal of cases involving the Banking Companies. Thereafter, on 31-12-1984 to provide a machinery for the recovery of finances provided by the Banking Companies which was not based on interest; Banking Tribunals Ordinance, 1984 was promulgated.

6. Further development was made when the Banking Companies (Recovery of Loans) Ordinance, 1979 and Banking Tribunals Ordinance, 1984 were consolidated and Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 came into force.

7. The basic purposes of enacting, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, after repealing two earlier enactments was, inter alia, to provide speedy measures for recovery of outstanding loans and finances of the Banking Companies. And lastly Financial Institutions (Recovery of Finances) Ordinance, 2001 was enacted on 30-8-2001 after making certain modifications in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 but the object of the Ordinance, 2001 remains the same i.e. to provide speedy measures for recovery of outstanding loans and finances of the Banking Companies.

8. To my mind, the Ordinance, 2001 is a Remedial Statute and the Remedial Acts/Statutes as explained by Crawford in Statutory Constructions, are those enacted in order to improve and facilitates remedies already existing for the redress of wrong or injury as well as to correct defects, mistakes and omissions.

9. A Remedial Act/Statute is the one made to supply such defects and bridge such difficulties which arise, either from the general imperfection of all human laws from change of time and circumstances.

10. Now I would like to refer to section 22 of the Ordinance, 2001 and section 27 of the Ordinance, 2001. Subsection (6) of section 22 of the Ordinance, 2001 is reproduced below:-- (6)

No appeal, review or revisions shall be against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under sub section (1) of section 15 or subsection (7) of section 19." Section 27 of the Ordinance, 2001 is reproduced below:-- "

27. Finality of order.

Subject to the provisions of section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceedings, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance."

11. The perusal of subsection (6) of section 22 of the Ordinance, 2001 takes me to the conclusion that where Statute does not provide appeal against interlocutory order, then the same cannot be challenged by way of constitutional petition as allowing such an order to be impugned by way of constitutional petition would amount to negating the provisions of the Statute which does not provide for an appeal against interlocutory order. Similarly, section 27 of the Ordinance, 2001 shows that legislature in its wisdom has referred to section 22 of the Ordinance 2001; which explicits the intention of legislature that interlocutory orders passed by the Banking Courts should not be called in question in any proceedings.

12. I am fortified in my opinion by the judgment of honourable Supreme Court reported in 1996 SCMR 1165 (Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" where the honourable Supreme Court has held that where a statute excludes a right of appeal from the interim order, the same could not be by-passed by bringing it under attack in constitutional jurisdiction. Party effected had to wait till it matured into a final order and then to attack it in the proper exclusive forum created for that purpose. Meaning thereby the courts should not act in a manner by which the object of a statute is defeated and the same is rendered nugatory.

13. While dilating upon the exercise of constitutional jurisdiction, the august Supreme Court of Pakistan in a case reported as "Sheikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another" (1991 SCMR 590) held as under:-- "Art.199

Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.6

Constitutional jurisdiction, exercise of

Mere erroneous exercise of jurisdiction does not render the order passed by a Civil Court of competent jurisdiction to be illegal and without lawful authority so as to the amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution."

14. If the constitutional petitions are allowed to be entertained against the interlocutory orders passed by the Banking Court, including an order granting or rejecting the application for grant of leave to defend, then the said course of action would itself negate the provisions of Banking Statutes which have been promulgated from time to time for the speedy disposal of the cases relating to the Financial Institutions and for the recovery of public money; which would seriously defeat the clear legislative intent. This view was affirmed in a case titled "Crescent Factories Vegetable Ghee Mills and 5 others v. National Bank of Pakistan, District Courts Branch, Sahiwal and another" (PLD 1985 Lahore 150) wherein it has been held as under:-- "interlocutory order passed by Special Court during the trial of the suit unamenable to appeal/revision, if allowed to be brought under challenge by recourse to extraordinary jurisdiction of the High Court will seriously defeat and deflect clear legislative intent discernible from the provisions of Ordinance."

15. The honourable Supreme Court of Pakistan in a judgment reported in PLD 1989 Supreme Court 26 (Federation of Pakistan and another v. Malik Ghulam Mustafa Khar) has held that if the language used in the statute is such that it leads no room for doubt as to the intention of the legislature to oust the jurisdiction of the Court in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny.

16. This Court in a judgment reported in 2002 CLD 991 Lahore (Muslim Commercial Bank Ltd. through Chief Manager and Principal Officer v. Judge Banking Court No.II Faisalabad and 8 others" has held that if the constitutional petitions are to be entertained against the interlocutory orders passed by the Judge Banking Courts it would deflect the legislative intent to promulgate the Ordinance, 2001.

17. For what has been discussed above, I am constrained to hold that the constitutional petition against an order passed by the Judge Banking Court accepting or rejecting an application for grant of leave to defend the suit is not maintainable and, therefore cannot be entertained. Resultantly, this writ petition is dismissed. KMZ/U-7/L Petition dismissed.