Wilful default

Prosecution case was that respondent availed finance facilities but did not adjust their liabilities and committed default in fulfilling the financial and contractual obligations

Respondent was acquitted by Trial Court in exercise of S. 265-K, Cr.P.C.

Validity

Trial Court recorded acquittal of the respondent on two grounds, firstly, that the FIA Forensic Laboratory had opined that loan papers contained fake signatures of respondent and secondly that respondent was out of country at the relevant time

As per S. 510, Cr.P.C., in case of report of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger-print and Firearm Expert appointed by Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited, if any report was issued by the said named officers in respect of various fields of sciences mentioned in it then their report could be produced in evidence without calling them and could be used as evidence in any inquiry or trial or other proceedings under Criminal Procedure Code

Handwriting science was a completely different field and a different science than the other mentioned categories of sciences

As such, the opinion/report of the handwriting expert could not be relied upon without examining its author and without taking the same on record and exhibiting in order to provide an opportunity to the other side to cross-examine him

Record reflected that the Trial Court had acquitted the respondent while considering his travel history obtained from the FIA

However, it was observed that an attempt to disprove or at least to challenge the authenticity of document should have been provided to the other side

Plea of alibi could be substantiated through leading evidence which an accused shall, no doubt, enjoy but at his turn within meaning of S. 265-F of the Code

Law favoured the disposal of cases on merits

However, it was in the interest of justice that both the parties should be provided opportunity to prove their versions by producing evidence

High Court observed that duty of the court was not only to protect innocent, but also to punish the guilty

Main consideration to be kept in view would be whether the continuance of the proceedings before the Court would be futile exercise, wastage of time and abuse of process of court or not

If on the basis of facts admitted and present on record no offence could be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial

Record reflected that the present case was based upon documentary evidence and the evidence was yet to be recorded against the accused/respondent

Admittedly there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the complainant Bank to prove its case by producing evidence

Circumstances established that the jurisdiction under S. 265-K, Cr.P.C. had not been exercised properly by the Trial Court

Thus, acquittal appeal was allowed by setting aside the impugned order and matter was remanded to the Trial Court, which shall proceed from the stage at which the case stood when the application of accused/respondent under S. 265-K, Cr.P.C. was decided.

Prosecution case was that respondent availed finance facilities but did not adjust their liabilities and committed default in fulfilling the financial and contractual obligations

Respondent was acquitted by Trial Court in exercise of S.265-K, Cr.P.C.

Validity

Trial Court recorded acquittal of the respondent on two grounds, firstly, that the FIA Forensic Laboratory had opined that loan papers contained fake signatures of respondent and secondly that respondent was out of country at the relevant time

As per S. 510, Cr.P.C., in case of report of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger-print and Firearm Expert appointed by Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited, if any report was issued by the said named officers in respect of various fields of sciences mentioned in it then their report could be produced in evidence without calling them and could be used as evidence in any inquiry or trial or other proceedings under Criminal Procedure Code

Handwriting science was a completely different field and a different science than the other mentioned categories of sciences

As such, the opinion/report of the handwriting expert could not be relied upon without examining its author and without taking the same on record and exhibiting in order to provide an opportunity to the other side to cross-examine him

Record reflected that the Trial Court had acquitted the respondent while considering his travel history obtained from the FIA

However, it was observed that an attempt to disprove or at least to challenge the authenticity of document should have been provided to the other side

Plea of alibi could be substantiated through leading evidence which an accused shall, no doubt, enjoy but at his turn within meaning of S.265-F of the Code

Law favoured the disposal of cases on merits

However, it was in the interest of justice that both the parties should be provided opportunity to prove their versions by producing evidence

High Court observed that duty of the court was not only to protect innocent, but also to punish the guilty

Main consideration to be kept in view would be whether the continuance of the proceedings before the Court would be futile exercise, wastage of time and abuse of process of court or not

If on the basis of facts admitted and present on record no offence could be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial

Record reflected that the present case was based upon documentary evidence and the evidence was yet to be recorded against the accused/respondent

Admittedly there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the complainant Bank to prove its case by producing evidence

Circumstances established that the jurisdiction under S. 265-K, Cr.P.C. had not been exercised properly by the Trial Court

Thus, acquittal appeal was allowed by setting aside the impugned order and matter was remanded to the Trial Court, which shall proceed from the stage at which the case stood when the application of accused/respondent under S. 265-K, Cr.P.C. was decided.

Petitioners were aggrieved of notices issued by Federal Investigation Agency on the ground of committing willful default of their financial facilities availed by them from financial institutions, though proceedings to determine default were pending before Appellate Court

Validity

One right of appeal is fundamental and basic right

When a person's civil liability hinges upon determination, it is not only to be made by Court of original jurisdiction but also by at least one appellate Court

Offence of wilful default under S. 2(g)(i) of Financial Institutions (Recovery of Finances) Ordinance, 2001, could only arise once not only the proceedings before Court of original jurisdiction but also before Appellate Court in any appeal filed under Financial Institutions (Recovery of Finances) Ordinance, 2001 were concluded

High Court struck down the notices issued by Federal Investigation Agency, as the same were ultra vires

Constitutional petition was allowed accordingly.

Reference by Governor State Bank of Pakistan is a very strong indication that a case of wilful default has been made out against defaulters but it is not definitive

National Accountability Bureau under National Accountability Ordinance, 1999, inquires and investigates to see if a case of wilful default has been made out and if so only then a reference on account of wilful default under National Accountability Ordinance, 1999, is filed.

Accused persons were convicted by Trial Court for committing offence of wilful default and sentenced to imprisonment for ten years along with fine

Validity

Evidence of investigating officer and other evidence on record including oral and documentary evidence, matter was thoroughly and independently investigated by National Accountability Bureau (NAB) and was found to be a case of wilful default which justifiably led NAB filing a reference under National Accountability Ordinance, 1999, before concerned Trial Court

All prosecution witnesses gave consistent, non-contradictory evidence, at trial, which was reliable, trustworthy and confidence inspiring

None of the evidence of prosecution was dented during cross examination

Evidence of prosecution witnesses was corroborated by documents exhibited at trial

Accused persons did not put forward any plausible reason as to why they failed to repay loan and did not even join investigation of NAB to justify their position despite they were sent call up notices

Accused persons did not give evidence on oath at trial in order to justify their position

High Court declined to interfere in conviction awarded by Trial Court but reduced sentence of imprisonment from ten years to five years without altering amount of fine imposed

Appeal was dismissed accordingly.

Petitioner/ landlord contended that he was absolute and exclusive owner of two shops (rented premises) which were let out to the respondent on verbal terms

Landlord submitted that tenant was not paying rent since April 2014 and had not increased the rent despite requests

Respondent/tenant contended that two Courts below had rightly dismissed the eviction petition as he (petitioner) failed to produce any document in support of his ownership of rented premises

Validity

Respondent / tenant had produced, before the High Court, a copy of lease deed bearing a date of year 2017 in his support to challenge the rival fact that the petitioner was owner of demised property

Said mischievously carved instrument was not present/ available before the Courts below

Both the Courts below upheld the occupancy of the demised shops by the respondent as said Courts were seemingly obsessed with the idea that no relationship of landlord/tenant existed between the parties

Respondent had denied the very status of landlord subsequent to his induction in the premises as tenant by the petitioner

Such stance had disentitled the respondent from seeking equitable relief in eviction petition, rather outcome of the eviction petition would be based on the evaluation of evidence produced by the rival parties

If the evidence of the landlord relating to his entitlement was better in quality and quantity and the tenant had simply denied relationship and claimed that he was not occupant of rented premises owned by landlord but no evidence was brought on record to legitimize his occupancy, Courts were bound to give favour to the landlord

High Court, after consideration of the material on record and the evidence, reached to the conclusion that both the orders of the Courts below were flawed on account of non-application of judicial mind

High Court set aside the impugned orders passed by both the Courts below with direction to the tenant to handover possession to the landlord

Constitutional petition was allowed, in circumstances.

Petitioner was a Telecommunication Company and was aggrieved of issuance of recovery notice under S.5(r) of National Accountability Ordinance, 1999 by Pakistan Telecommunication Authority

Validity

Record showed that petitioner had been engaged in forum shopping by jumping between different High Courts of Pakistan on different or similar issues in order to obtain continuous relief in avoiding paying its outstanding dues

When petitioner was unable to obtain favourable orders from one High Court then it switched to another High Court with similar or same contentions about (so-called) agreed instalment plan

Petitioner had not been able to place a single document on record to show that installment repayment plan was approved by Economic Coordination Committee

Pakistan Telecommunication Authority had no lawful authority to issue notice under S.5(r) of National Accountability Bureau, 1999

High Court keeping in view conduct of petitioner by approaching various courts of the country with sole object of avoiding payment of his outstanding dues declined to interfere in the matter

Constitutional petition was dismissed in circumstances.

Petitioners were aggrieved of filing of references by National Accountability Bureau against them for committing offence of wilful default

Petitioners contended that promulgation of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, barred jurisdiction of National Accountability Bureau in cases of wilful default, as provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 had retrospective effect

Validity

Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act 2016] applied to and prevailed over all cases of wilful default under National Accountability Ordinance, 1999 as per definition provided in S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001 from 13-8-2016 when Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, took effect

Other matters relating to wilful default, inquires, investigations and other proceedings of wilful default not covered by S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001, [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] but covered by S. 5(r) of National Accountability Ordinance, 1999 were continued to be governed by National Accountability Ordinance, 1999

Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] did not have retrospective effect

All complaint verifications, cases pending before Governor State Bank of Pakistan in connection with National Accountability Ordinance, 1999, National Accountability Bureau inquiries, investigations and references in respect of offence of wilful default under National Accountability Ordinance, 1999 in existence prior to 13-8-2016 were continued to be governed by National Accountability Ordinance, 1999

Any convictions under National Accountability Ordinance, 1999 were subjected to same sentences, disqualifications etc., as provided in Financial Institutions (Recovery of Finances) Ordinance, 2001 and not under National Accountability Ordinance, 1999

All persons already convicted of offence of wilful default under National Accountability Ordinance, 1999 were to remain convicted and their appeals were to proceed with under mechanism provided in National Accountability Ordinance, 1999

Constitutional petition was dismissed accordingly.

Provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 which amended Financial Institutions (Recovery of Finances) Ordinance, 2001 is later in time than National Accountability Ordinance, 1999

Provisions on "wilful default" are similar but not identical in both laws

Parliament was aware of existence of such a similar offence of wilful default in National Accountability Ordinance, 1999 it has deliberated and consciously intended to give preference to offence of wilful default as provided in Financial Institutions (Recovery of Finances) (Amendment) Act, 2016

As a general principle of statutory interpretation, offence of wilful default under Financial Institutions (Recovery of Finances) Ordinance, 2001, prevails to the exclusion of offence of "wilful default" under National Accountability Ordinance, 1999.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]

Wilful default

Jurisdiction

Significant differences between S. 5(r) of National Accountability Ordinance, 1999 and S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is that whilst Financial Institutions (Recovery of Finances) Ordinance, 2001 only applies to financial institutions and their customers, whereas National Accountability Ordinance, 1999 is of wider application

Some of the provisions of National Accountability Ordinance, 1999 vis-à-vis wilful default are more advantageous to accused/defaulter as he has safeguard of S. 31-D of National Accountability Ordinance, 1999 and benefit of conciliation committee and ability to make a plea bargain under S. 25(b) of National Accountability Ordinance, 1999

One of the key and most important difference is sentence and disqualification period entailed in each piece of legislation

Period of sentence is up to 14 years imprisonment in National Accountability Ordinance, 1999 whilst in Financial Institutions (Recovery of Finances) Ordinance, 2001 it is up to 7 years imprisonment which is significantly lower

Disqualification period in National Accountability Ordinance, 1999 is 10 years and disqualification period in Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is 5 years.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]

General Clauses Act (X of 1897), S. 6

Wilful default

Forum of trial

Implied repeal, doctrine of

Applicability

Parts of definition of S. 5(r) of National Accountability Ordinance, 1999 relating to wilful default which are covered by definition of 'financial institution' under S. 2(a) of Financial Institutions (Recovery of Finances) Ordinance, 2001 are hit by doctrine of implied repeal

Cases of wilful default have to proceed exclusively under Financial Institutions (Recovery of Finances) Ordinance, 2001 and exclusively before Banking Courts under Financial Institutions (Recovery of Finances) Ordinance, 2001 and not under National Accountability Ordinance, 1999 subject to question of retrospectivity.

Petitioner / tenant contended that till final decision of pending civil suit, Rent Controller had no jurisdiction to entertain the eviction petition of the landlord

Respondent/landlord contended that owing to wilful default in payment of rent two courts below had rightly ordered eviction of the tenant

Validity

Mere denial of relationship of landlord and tenant between the parties and pendency of civil suit for specific performance of contract did not take away jurisdiction of the Rent Controller to entertain Rent Case as sale agreement did not create any interest or confer any title on the person in whose favour such agreement was executed

Proceedings before Rent Controller could not be stopped to wait for the final outcome of the civil suit

If tenant would succeed in obtaining decree in the civil suit, he could have access to the subject premises

Tenant had not paid the rent while claiming purchase of the subject premises in the year 1999, therefore, Rent Controller had rightly found that the tenant had committed wilful default in payment of rent

No illegality or infirmity having been noticed in the impugned orders passed by the Two Courts below, Constitutional petition was dismissed accordingly.

Respondent contended that he sent notice under S. 18 of the Sindh Rented Premises Ordinance, 1979 when he purchased demised property

Validity

Tenant in his written statement had admitted that originally the demised shop was with him on rent since the year 1971, but later on he purchased the same through registered sale deed in the year 1995

Said sale deed did mention the description of the demised shop

Purchase by the tenant was yet to be proved before Civil Court where the suit filed by him was still pending

Since tenant had admitted that originally the demised shop was with him on rent, hence until and unless the suit filed by the petitioner was finally decreed in his favour, he was a tenant of the premises under Art. 115 of Qanun-e-Shahadat, 1984

Appellate Court had found existence of tenancy, initially at the time of occupation of the demised shop had estopped the petitioner from questioning the title of the landlord

Tenant could not be allowed to challenge the title of landlord

Landlord, admittedly, issued notice under S. 18 of the Sindh Rented Premises Ordinance, 1979 to the tenant after change of the ownership and the same was also replied by the tenant denying the relationship

Claim of the ownership of tenant was not yet established due to pendency of civil suit

Tenant had originally occupied the demised shop as tenant, hence relationship of landlord and tenant existed between the respondent and the tenant

Rent Controller had no jurisdiction to decide the intricate question of title

No illegality or infirmity having been noticed in the impugned orders passed by the two courts below, constitutional petition was dismissed accordingly.

Taxpayer was a cold storage service provider and was aggrieved of show-cause notice and fine imposed by revenue authorities on late filing of returns on grounds that registration was done prior to imposition of fine penalty

Revenue authorities claimed that fine was reduced upon disclosure of registration

Validity

Show-cause notice did not clearly explain that since when taxpayer failed to submit the returns

Show-cause notice was issued, in a general manner, ignoring principles of natural justice, fairness, reasonableness and neutrality which was to be strictly observed in adjudication proceedings

Taxpayer had already been registered before receipt of show-cause notice, therefore, there was no mens rea or wilful default on his part

Intention of Legislature was that purpose of levying penalty was to deter assessee from repeating default in future but it could not be made as a resource mobilization/revenue generation measures

Appellate Tribunal Revenue Authority set aside order passed by Commissioner (Appeals) Punjab Revenue Authority as such aspect of matter was ignored

Appeal was allowed in circumstances.

Tenant contended that he was ill so he submitted application to deposit rent with the delay of three days in compliance of tentative rent order of the Court, for which he had medical certificates

Landlord contended that medical certificates were never submitted before the two Courts below

Validity

Provisions of S.13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 were mandatory in nature

Once the Rent Controller had directed the tenant for deposit of tentative rent before 15th of every month, then it was mandatory for the tenant to deposit the said rent as per direction of the Rent Controller

Tenant had defaulted, to deposit the rent

Plea of the tenant regarding his ailment seemed to be an afterthought as he neither took such plea nor produced the medical certificates before the two Courts below

Said medical prescriptions/ certificates could not be taken into consideration by the High Court

Even delay of one day was considered to be wilful default under S.13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959

No illegality or infirmity having been noticed in the impugned orders passed by the two Courts below, constitutional petition was dismissed accordingly.

Significant differences between S. 5(r) of National Accountability Ordinance, 1999 and S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001[as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is that whilst Financial Institutions (Recovery of Finances) Ordinance, 2001 only applies to financial institutions and their customers, whereas National Accountability Ordinance, 1999 is of wider application

Some of the provisions of National Accountability Ordinance, 1999 vis-à-vis wilful default are more advantageous to accused/defaulter as he has safeguard of S. 31-D of National Accountability Ordinance, 1999 and benefit of conciliation committee and ability to make a plea bargain under S. 25(b) of National Accountability Ordinance, 1999

One of the key and most important difference is sentence and disqualification period entailed in each piece of legislation

Period of sentence is up to 14 years imprisonment in National Accountability Ordinance, 1999 whilst in Financial Institutions (Recovery of Finances) Ordinance, 2001 it is up to 7 years imprisonment which is significantly lower

Disqualification period in National Accountability Ordinance, 1999 is 10 years and disqualification period in Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is 5 years.

Provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 which amended Financial Institutions (Recovery of Finances) Ordinance, 2001 is later in time than National Accountability Ordinance, 1999

Provisions on "wilful default" are similar but not identical in both laws

Parliament was aware of existence of such a similar offence of wilful default in National Accountability Ordinance, 1999 it has deliberated and consciously intended to give preference to offence of wilful default as provided in Financial Institutions (Recovery of Finances) (Amendment) Act, 2016

As a general principle of statutory interpretation, offence of wilful default under Financial Institutions (Recovery of Finances) Ordinance, 2001, prevails to the exclusion of offence of "wilful default" under National Accountability Ordinance, 1999.

Appellant/tenant contended that eviction order against him was wrong as no proper opportunity was provided to him to lead his evidence

Respondents contended that appellant remained indolent throughout the proceedings before the Rent Controller

Intervener also moved application contending that demised property had already been sold to him by the landlord which was leased out in his name in result of decree obtained by him through Court

Validity

Rent Controller had specifically mentioned in the impugned order that at first occasion the tenant had availed 24 dates for cross-examining the respondents' attorney and after closing his side, when on his request Rent Controller again allowed him to cross-examine the respondents' attorney, he availed 29 more opportunities for the same purpose

Tenant had failed to submit his own affidavit-in-evidence

Attitude of the tenant showed that he was deliberately avoiding to contest the matter

Attorney of the respondents had submitted his counter affidavit to the application of intervener, wherein he had raised no objection if the intervener being new owner of the demised premises be impleaded as respondent in the appeal

Said intervener had also informed the High Court that building in question was declared as dangerous by the Cantonment Authorities vide notice under S. 126 of the Cantonments Act, 1924 and all the tenants including the appellant had been directed in said notice to vacate and the appellant had vacated the demised premises

High Court did not find reason to open the matter which had already been closed while appellant had not informed the High Court about the same

Appeal was dismissed accordingly.

Meaning, explained.

Dictionary meaning.

Meaning.

Tenant/petitioner contended that eviction order was illegally passed against him in the wake of his failure to submit written reply

Landlord contended that right of defence of tenant was correctly struck off by Rent Controller

Validity

Record revealed that on account of default in submission of written reply on behalf of tenant, Rent Controller had not only struck off defence of tenant but also ordered eviction of the tenant

Section 17 of Cantonments Rent Restriction Act, 1963 prescribed a special procedure to be adopted by the Rent Controller before passing any final order in regard to eviction of a tenant or otherwise

In the present case, no show-cause notice either after filing the application of eviction or thereafter, when the defence was struck off was served upon the tenant

Ordinary summons could not be a substitute for show-cause notice

Whole proceedings would be void ab initio without show-cause notice

Under S. 27 of Cantonments Rent Restriction Act 1963, power of the Rent Controller was curtailed to pass order of eviction under S. 17 of the Act, except after holding an inquiry and the inquiry did not mean to consider the allegation put forth by a party in his pleadings but the court would give an opportunity to both the parties to substantiate the facts alleged in their respective pleadings through proper evidence

No doubt, Rent Controller had been conferred with powers, in term of subsection 2(b) of S.27 to compel the discovery and production of any document and other material evidence , while subsection (2) of S.27 provided that for the purposes of holding an inquiry under the Act, Rent Controller and appellate court would have same powers as were vested in a court under Code of Civil Procedure, 1908 for summoning and forcing of any person and examining him on oath; compelling the discovery and production of any document and other material evidence; and issuing a commission for the examination of witnesses

Rent Controller, in case of violation of direction for non-submission of written reply, could adopt punitive procedure provided under O.XVII, R.3, C.P.C. while exercising its power conferred upon it in terms of S. 27(2) of the Act, but while exercising such powers, Rent Controller would adopt the whole procedure and would give prior notice to the delinquent party under O.XVII, R.3, C.P.C.

In the present case, Rent Controller had not issued required notice to defendants prior to striking off his defence, which itself was gross illegality

Power to pass eviction order could not be exercised without conducting proper inquiry as the provisions of subsection (1) of S. 27 had placed specific embargo on exercise of simultaneous order of eviction after striking off the defence

Case was remanded.

Complainant Bank had earlier instituted recovery suit but later also invoked jurisdiction of National Accountability Ordinance, 1999

Plea raised by accused was that provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 had overriding effect in cases of such wilful default

Validity

National Accountability Bureau did not have authority in the matter and their actions against petitioner led to an inference of mala fide on their part

Finance facility subject matter of National Accountability Bureau reference was duly secured against adequate collateral in addition to other documents

Bank had not claimed that documents prepared for sanction of loan were bogus; property subject matter of mortgage was non-existent; such property was not in specific ownership of petitioner or that the same was already under some encumbrance

Despite such clear position, without touching factual aspects of allegations against customer, action of complainant Bank in filing complaint before National Accountability Bureau and further proceedings by National Accountability Bureau under National Accountability Ordinance, 1999, including attempted arrest of the customer per force of National Accountability Ordinance, 1999, was indicator of mala fide on part of complainant as well as National Accountability Bureau

Pre-arrest bail was confirmed in circumstances.

Landlord contended that since issue on default had been framed by Rent Tribunal, it hardly made any difference, that leave to contest was granted or not

Validity

Rent Tribunal keeping in view divergent pleas of the parties had come to the conclusion that parties were at factual variance regarding rate of rent as well as period of default

Rent Tribunal concluded that there were triable issues in the case which required recording of evidence

Section 22(4) of the Act provided that Rent Tribunal shall not allow leave to contest to the tenant, unless the application disclosed sufficient grounds for production of oral evidence

Section 22(6) of the Act clearly contemplated that in case leave to contest was refused the Rent Tribunal shall pass the final order

In the present case, final order was not passed and Tribunal felt need to record evidence of the parties, therefore, for all intents and purposes the application for leave to contest was allowed

If conclusion of the Tribunal was not happily worded or no specific word for grant of leave was mentioned and issue had been framed, that did not mean that leave had not been granted

Constitutional petition was dismissed accordingly.

Complainant Bank had earlier instituted recovery suit but later also invoked jurisdiction of National Accountability Ordinance, 1999

Plea raised by accused was that provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 had overriding effect in cases of such wilful default

Validity

National Accountability Bureau did not have authority in the matter and their actions against petitioner led to an inference of mala fide on their part

Finance facility subject matter of National Accountability Bureau reference was duly secured against adequate collateral in addition to other documents

Bank had not claimed that documents prepared for sanction of loan were bogus; property subject matter of mortgage was non-existent; such property was not in specific ownership of petitioner or that the same was already under some encumbrance

Despite such clear position, without touching factual aspects of allegations against customer, action of complainant Bank in filing complaint before National Accountability Bureau and further proceedings by National Accountability Bureau under National Accountability Ordinance, 1999, including attempted arrest of the customer per force of National Accountability Ordinance, 1999, was indicator of mala fide on part of complainant as well as National Accountability Bureau

Pre-arrest bail was confirmed in circumstances.

Admission of tenant (petitioner) was available on record that he did not pay rent as there was dispute in civil court about the ownership of the premises between mother of landlords and the previous owner

Contention of tenant was that he paid property tax of the premises which he had adjusted towards the rent amount

Validity

Contention of tenant was not sustainable in law

Tenant was admittedly tenant of the premises and was required to pay its rent

If he had any doubt over the ownership of the premises under his tenancy, he could have deposited the rent in the court

Non-depositing the rent for a period of twelve years was without any justifiable excuse and sufficient to hold that he had committed default in payment of rent

Contention that he had adjusted the amount paid in property tax to the rent due was equally untenable as the adjustment was without consent or agreement of the owner

Tenant was not permitted to act on his own and deprive the landlord from the benefit of the rent

Constitutional petition was dismissed.

Legislature did not intend the NAB to be used as a debt collection agency by other bodies who had their own means of recovery in such cases

Wilful default was not intended to cover cases of consumers defaulting on minor amounts of their electricity bills

Wilful default was criminalized as an offence under National Accountability Ordinance, 1999, mainly to stop large scale bank loan default which was then often written off at the cost to the State, the economy and depositors of that institutions

While performing such wide reaching and time consuming functions of in effect debt collection concerning relatively minor amounts on behalf of other bodies which were prima facie unrelated to corruption

National Accountability Bureau could not fully harness its resources in order to pursue mega cases worth billions of rupees which was its primary mandate under National Accountability Ordinance, 1999.

Petitioner was one of the directors of the company which borrowed finance facility of Rs.125.665 million and wilfully defaulted in payment of the same

Suit filed by financial institution was decreed in its favour and against petitioner as well as other directors

Petitioner sought quashing of reference filed by National Accountability Bureau on the plea that she was not liable to repay the facility

Validity

Joint and several liabilities of petitioner being a borrower were determined through judicial disposition as compromise decree was drawn by High Court in banking suit against petitioner and three other judgment debtors, which had attained finality

Petitioner and others were jointly and severally held liable to pay decretal amount along with cost of funds from the date of default till realization and mechanism provided under National Accountability Ordinance, 1999, could be invoked

Loan amount released by financial institution was not repaid by petitioner and others and the same constituted act of 'wilful default'

High Court declined to quash proceedings, as the matter was sub judice before Trial Court

Petition was dismissed, in circumstances.

Rent Controller allowed ejectment application and passed eviction order against tenant on the ground of wilful default in payment of monthly rent

Validity

Tenant through verbal evidence asserted that rent from March, 2011 to February, 2012 was paid through valid receipt issued by landlady but no such receipt was produced during evidence or recording statement of tenant nor put the same to landlady during her statement or cross-examination

Mere appending a purported receipt along with memo of appeal could not be termed as evidence unless proved in accordance with law

Accepting of rent by landlady after 3 to 6 months/periodically from tenant and receipts annexed with appeal showing lump sum payment would lead to presumption that practice of receiving periodic rent was adopted by landlord was not tenable

Tenant was under legal obligation to pay monthly rent to landlady and if tenant had adopted practice to pay rent at irregular intervals, he made himself liable to eviction

Tenants were under legal obligation to deposit rent within 60 days after it had become due but he failed to do so and committed wilful default

High Court declined to interfere in eviction order passed by Rene Controller

Appeal was dismissed in circumstances.

Rent Controller and Lower Appellate Court passed eviction order mainly on the ground that according to terms of agreement, tenant failed to pay fine to landlady for delay in payment of rent and also did not pay increased rent

Plea raised by landlady was that tenant had not paid increased rent which stood automatically enhanced after 3 years of tenancy at the rate of 25% as provided under section 10 of Islamabad Rent Restriction Ordinance, 2001

Validity

Condition of payment of Rs.500/- per day was penalty and it could not be considered as additional rent

Such penalty was specifically prohibited by section 11 of Islamabad Rent Restriction Ordinance, 2001, and agreement to that extent was void ab initio

Landlady did not show any notice issued to tenant requiring him to pay statutory rent nor any application had been moved to strike off the defence of tenant, therefore, statutory ground could not be pressed into service

High Court in exercise of Constitutional jurisdiction set aside eviction orders passed by Rent Controller and Lower Appellate Court resultantly ejectment application was dismissed

Petition was allowed in circumstances.

Adjudication is mandatory before declaration of amount due.

Plea raised by accused was that financial institution and authorities did not comply with legal requirements regarding issuance of statutory notices

Validity

Two notices, which were mandatorily required to be issued in accordance with provisions of National Accountability Ordinance, 1999, had not been issued by meeting requirement of law

First notice for period of 30 days was required to be issued by financial institution and then subsequent thereto a notice for seven days was requirement of law, . issued by Governor, State Bank of Pakistan

Governor State Bank of Pakistan issued 'notice on 9-1-2002, whereas notice by financial institution was issued on 18-10-2002, which were not requirement of law

Mandatory requirement as contained in S. 5(r) read with S. 31-D of National Accountability Ordinance," 1999, were not followed in their letter and spirit and filing of reference and ' subsequent proceedings pending pursuant thereto were thus nullity in the eye of law and were liable to be quashed

High Court quashed reference against petitioner pending trial

Petition was allowed in circumstances.