P L D 1999 Karachi 398 (PLP)

NAZIM HUSSAIN SIDDIQUI, C.J.

The petitioners have impugned the order dated 7-11-1998 of respondent No.l, Banking Court No.V, Karachi, whereby the petitioners were granted leave to defend the Suit No.337 of 1998, subject to furnishing security of the amount claimed in said suit. The respondent No.2, Indus Bank Limited, had tiled said suit against the petitioner No.l as borrower and petitioners Nos. 2 and 3 as guarantors for recovery of Rs.4,483,721.80. The petitioners moved an application under section, 10 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, hereinafter called the Act, to defend the said suit. Permission sought for was granted but it was subject to the condition mentioned earlier. Section 10 of the Act is as follows:- "Leave to defend. --Subject to section 11, the Banking Court shall, upon an application made by a defendant within twenty-one days, give leave to defend, the suit, if a serious and bona fide dispute is raised thereby: - Provided that where service has been validly effected only through publication in the newspapers the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof. It is contended on behalf of the petitioners that the order for furnishing security is beyond the scope of above-quoted section and once the Court is satisfied that a serious and bona fide dispute has been raised the permission to defend the suit is to be granted as a-matter of right. Learned counsel also argued that since learned Trial Judge was convinced that the dispute was serious and bona fide no security could be demanded from the petitioners. As against above; Mr.Makhdoom Ali Khan, learned counsel for respondent No.2, has argued that the principle of maxim omne majus continet in se minus, "the greater contains the less" is involved in this matter and since learned trial Judge was competent to decree the suit he could also pass the oydef directing the petitioners to furnish security. In support of this contention, he cited PLD 1956 (W.P.) Kar.

178. In this case the scope of above maxim has been discussed. He also argued that even if for the sake of argument it is assumed that impugned order is not strictly in accordance with above-quoted section, yet, substantial justice has been done to the parties and in such case, the High Court shall beg slow in interfering with interlocutory order, unless manifest injustice is done to a party. In support of above contention, he cited Muhammad Ramzan v. Rent Controller, ,Karachi, 1985 CLC

553. Learned counsel also cited Shaikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Speical Court of Banking and another 1991 SCMR 590 to contend that granting of permission conditional or unconditional is the discretion of the Court and it was not amenable to judicial review in Constitutional jurisdiction. In order to appreciate the points involved in this petition, it would be appropriate to refer the provisions of the Banking Companies (Recovetv of Loans) Ordinance, 1979 (repealed by the Act of 1997) and the provisions of the Banking Tribunals Ordinance No.LVIII of 1984 (also repealed by the Act of 1997) to show as to what procedurellaw was being followed for seek-in gleave to defend the suit. For the Ordinance of 1979. as per suh~ecttnn (2) of section 7, `' the summary procedure provided in Order XXXVII of the C.P.C. was to be followed. In all suits under the Ordinance obtaining of leave was a 'condition precedent and such leave could be granted conditionally or subhect to furnish security. Under Ordinance LVI11 of 1984, procedure as prescribes sub section 6, was to be followed. Under subsection (2) of section tb of said Ordinance, the Tribunal was required to issue notice to the defendant to show cause within ten days of service of notice as to why decree as prayed for to the plaint should not be passed against him. Under subsection (4) of section 6, upon the defendant failing to file a reply within a time given ,n the -,how-cause notice under subsection (2) or upon rejection by the Banking Tribunal of the plea taken by him in the reply a decree was to be passed in favour of the Banking Company. It is noted that the provisions of Order XXXVII, C.P.C. did not apply to suit under section 6 of said Ordinance. It was not necessary for defendant to apply under Order XXXVII, C.P,C. for leave to appear and defend the suit. Such leave was deemed to have been granted if his reply was not rejected under section 6(4). , Adverting to the instant case, it is noted that only condition as per section 10 of the Act for granting leave to defend the suit is that the nature of the dispute be seriol,s and bona fide. The word "serious" in the Oxford English Dictionary has been defined to mean; important, grave, consequences giving cause for concern, worthy of consideration etc. and the "bona fide" means: good faith, freedom from intent to deceive, guarantees of good faith, credentials, Combined effect of these two words is if the dispute, ex facie, appears to be genuine, arising out from good faith and free from mala fide, the Banking Court shall grant leave to defend nd the suit. Once the case is found fit for granting leave no condition of furnishing security can be attached, as it would tantamount to reading more than what actually the Legislature has mentioned in said section. Any other construction which contradicts the letters of a statute and permits substitution of views other than expounded by Legislature, shall, .as a rule, be avoided. Neither the principle of aforesaid maxim is applicable to this case nor the plea of substantial justice to both the parties would apply. The Legislature in its wisdom has not thought it proper to put any condition for seeking leave to defend the suit, except mentioned earlier. Even otherwise by various provisions of the Act the interest of the Banking Company has been safeguarded. For example, under section 13 of the Act in a suit in which leave to defend has been granted to the defendant, shall be disposed of within ninety days from the day on which leave was granted and in case proceedings continue beyond the said date the defendant may be required to furnish security in such amount as the Banking Court deems fit and, on the failure of the defendant the Banking Court shall pass an interim or final decree in such amount as it may deem appropriate. Under section 16 attachment before judgment and appointment of Receiver is also permissible: Accordingly, we allow this petition with no order as to costs, set aside the impugned order to the extent of asking the petitioners to furnish the security and permit them to defend the suit without any condition. M.B.A./A-345/K . . , . . Petition allowed.