1998 PLP 1961 (SCMR)

MAMOON KAZI, J.

The respondents in this case have preferred a claim against the petitioners for recovery of Rs.32,787,075 together with mark up. The said claim is pending before a learned Single Judge of the High Court of Sindh who is acting as Banking Court within the meaning of section 2(b) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act No. XV of 1997). The petitioners filed application for leave to appear and defend the suit which was granted by the learned Judge, vide order dated 20-3-1998, but subject to deposit of a sum of Rs.7,491,919 with the Nazir of (lie Court. The petitioners felt aggrieved as, according to them, they were entitled to leave without any condition and hence this petition, for leave to appeal.

2. Mr. Mansoorul Arfin, learned counsel for the respondents has raised a preliminary objection challenging the competence of the leave petition before this Court. Reference has been made by him to the definition of "Banking Court" which has been defined by section 2(b) of Act XV of 1997 as under:-- "(i) in respect of a case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the offences under this Act, the Court established under section 4; and (ii) in respect of any other case, the High Court;" Consequently, according to the learned counsel although the case of u1c respondents is being heard by a learned Judge of the High Court, nevertheless he is acting as a Banking Court. Therefore, the present petition for leave to appeal before this Court is not competent. Reference has also been made by the learned counsel to section 21 of Act XV of 1997 which provides that an appeal from a decree or an order passed by a Banking Court is to be filed before the High Court. There appears to be no controversy in regard to the fact that in case of a decree or an order passed by a Judge of the High Court as Banking Court, such appeal would lie to two Judges of the same High Court. Our attention has been drawn by the learned counsel for the respondents to an earlier unreported judgment of this Court in C.A.No. 193-K of 1992 (Ashira Khatoon wife of Dr. lqbal Ahmad Chisti v. The Muslim Commercial Bank Ltd. and others), wherein it was observed: "Furthermore, the impugned order was passed by the Special Court envisaged by section 2(f) and not by the High Court, so as to attract Article 185(3) of the Constitution." No doubt, in this case it was the order of the "Special Court" as defined in section 2(f) of the Banking Companies (Recovery of Loans) Ordinance, 1979 but there appears to be no controversy in regard to the fact that the definition of "Banking Court" as contained in section 2(b) of Act XV of 1997 is not materially different from the definition of "Special Court" under section 2(f) referred to in .the said judgment of this Court. In the said case it was held on account of the said reasons that the petition under Article 185(3) of the constitution was wholly incompetent.

3. The competency of this petition has also been challenged by Mr. Mansoorul Arfin on another valid ground. It has been pointed out that under section 21 of Act XV of 1997, clause (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. The order impugned in the present petition does not fall within the purview of an order passed under subsection (6) of section

18. Therefore, section 21 clearly bars an appeal against an interlocutory order which does not dispose of the whole case. The learned counsel has, therefore, questioned the maintainability of the petition before this Court as it has been filed against an interlocutory order. Reference once again may be made to the said unreported judgment of this Court to which we have already referred. With reference to a similar contention raised by the learned counsel in the said case, it was observed: "The stand taken by the learned counsel is untenable for more than one reason. The Legislature has not provided any right of appeal against an interlocutory order of the Special Court. It is not understandable as to how the instant appeal is competent." Reference has also been made by Mr. Mansoorul Arfin to the following observations made in another judgment of this Court in Muhammad Ayub Butt v. Allied Bank Ltd. (PLD 1981 SC 359):-- "It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the itnerlocutory orders of the said Court from attack before the High Court in revision or appeal as the v wanted that only the final decisions of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court."

4. The two judgments referred to by us do not leave any room for doubt that the petition filed by the petitioners in the present case is not competent. In fact, when Mr. G.H. Malik, learned counsel for the petitioners was confronted with the said situation, he could only argue that in an earlier case in spite of' similar objections, partial relief was granted to the petitioners, It is pertinent to point out that although, Mr. Mansoorul Arfin, who had also appeared as a counsel for the respondents in that case, did not contradict Mr. G.H. Malik in this regard but it was explained by the learned counsel that in the said case the order was passed more or less by consent. In this case the possibility of a consent order was ruled out by the counsel themselves.

5. In the result, the petition is dismissed. M. B. A./B-l7/S Petition dismissed.