Const. Petition No.D-3171 of 2012
Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
M/s Bank Alfalah Limited………………………………………………Petitioner
Versus
The Presiding Officer & another ……………………………...…….Respondents
Date of hearing 18.09.2013
Date of order 18.09.2013
Mr. Abdul Shakoor, advocate for the petitioner
Mr. Hamid Idrees, advocate for the respondent
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Aqeel Ahmed Abbasi, J : Through instant petition the petitioner bank has impugned the order dated 24.7.2012 whereby leave to defend application filed by the respondent was allowed unconditionally by Banking Court No.1 at Karachi in Suit No.144 of 2011 and the order dated 16.08.2012 passed on application filed under Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Section 153 CPC whereby the review of the aforesaid order was declined by the Banking Court vide order dated 16.8.2012, with the prayer to set aside both the aforesaid orders for being illegal and without lawful authority.
2. Learned counsel for the petitioner has argued that the impugned orders passed by the learned Banking Court No.1 at Karachi, are based on mis-reading and non-reading of the evidence and the material produced by the petitioner in the suit filed by the petitioner bank for the recovery of the amount which was extended to the petitioner towards finance facility, and the same was not re-paid by the respondent. Per learned counsel, the petitioner while filing the suit for the recovery of the outstanding liability fully complied with the requirements of law as contained in Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, whereas, per learned counsel, the respondent while filing leave to defend application did not comply with the requirements of law as provided in terms of Section 10 of the Ordinance, 2001. Per learned counsel, the sanction of the finance facility and its disbursement is not disputed, whereas the respondent by filing leave to defend application attempted to create a dispute with regard to re-payments and the statement of account furnished by the petitioner which according to respondent did not reflect the correct factual position. Per learned counsel, the learned Banking Court has granted leave to defend application to the petitioner unconditionally, without realizing that no substantial legal question of law or fact was raised by the respondent in terms of Section 10 of the Ordinance, 2001. It is further contended by the learned counsel that the impugned order is otherwise based on incorrect factual position, as no such documents were attached by the respondent whose validity was to be examined through evidence, hence, the respondent was not entitled to the grant of leave to defend unconditionally. Per learned counsel, since no such documents were available in the record of the learned Banking Court, an application seeking rectification/review of the aforesaid order was filed by the petitioner before the learned Banking Court, however, the said application has also been dismissed on the ground that the learned Banking Court has no jurisdiction or authority under the law to review its own order. Learned counsel for the petitioner has contended that when there is clear error on the face of the record then the learned Banking Court had the powers to re-call the order which was based on mis-reading of the material available on record. In support of his contention, learned counsel has placed reliance in the case of M/s Baghpotee Services Pvt. Ltd. v. Allied Bank of Pakistan Ltd 2001 CLC 1363, wherein according to learned counsel, it has been held that “power in cases of review must be conferred by statute but in case of recalling the power stems from the principles of natural justice required to be read into every law.” It has been concluded by the learned counsel for the petitioner that the impugned orders passed by the learned Banking Court may be set aside and the matter may be remanded back to the learned Banking Court to be decided afresh after taking into consideration the material available on record.
3. Conversely, learned counsel for the respondent has raised a preliminary legal objection with regard to maintainability of the instant petition and submitted that the impugned orders do not suffer from any jurisdictional or legal error which may require any interference by this Court in its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Per learned counsel, learned Banking Court has the authority and lawful discretion to either dismiss or to grant leave to defend application, conditionally or unconditionally, keeping in view the peculiar facts and circumstances of each case, after examining the case of both the parties in terms of Sections 9 and 10 of the Ordinance, 2001. Per learned counsel, while filing leave to defend application before the learned Banking Court, alongwith documents and specific objections with regard to non-compliance of the provisions of Section 9 of the Ordinance, 2001, by the petitioners, the respondent also pointed out material irregularities and several other discrepancies in the claim and statement of account filed by the petitioner to show that the petitioner has not complied with the requirements of law as provided under Section 9 of the Ordinance, 2001. Per learned counsel, various entries were specifically pointed out by the respondent to be incorrect, whereas the claim of the petitioner in the plaint did not corroborate with the statement of account filed by the petitioner before the learned Banking Court. Per learned counsel, from perusal of the impugned order(s) passed by the learned Judge of Banking Court No.1, Karachi, it may be seen that after examining the material produced by the parties the learned Judge has passed well-reasoned order which does not suffer from any illegality, whereas the discretion vested in the learned Banking Court has been exercised by the learned Judge strictly in accordance with law, keeping in view the material discrepancies pointed out by the respondent in the instant case. It has been contended by the learned counsel for the respondent that even otherwise, no prejudice whatsoever, may be caused to the petitioner if the leave granting order is maintained, as the matter may be decided on merits and on the basis of evidence, which may be produced by the parties. On the contrary, per learned counsel, if leave to defend application is declined, the respondent will be deprived of his lawful right to defend the case on merits by producing evidence. Per learned counsel, no material whatsoever has been produced by the counsel for the petitioner before this Court which may reflect that the leave to defend application has been granted by the Banking Court without examining the material available on record. It has been prayed that the petition being devoid of any merits is liable to be dismissed with cost.
4. We have heard both the learned counsel, perused the record. From perusal of the impugned order dated 24.7.2012 passed by the learned Banking Court No.1, Karachi, it has been noted that the learned Banking Court after having examined in detail the grounds raised by the respondent in leave to defend application and by taking into consideration the contents of the plaint as well as the documents produced by both the parties held that substantial questions of law and facts have been raised by the respondent, which may require evidence, hence granted unconditional leave to defend to the respondent. We have further noted that while granting leave to defend application, the learned Banking Court has discussed in detail the contention of both the learned counsel for the parties, whereas, reasons for grant leave to defend application have also been recorded. It will be advantageous to reproduce hereunder the few relevant extract from the impugned order containing the reasons for grant of leave to defend application unconditionally to the respondent.
“(a) I have heard the arguments of the learned counsel for the defendant that the entry dated 8.8.2008 shows debit entry of car loan and various entries prima-facie reflect markup upon markup charged and other alleged unauthorized charges after adjustment of finance approved by sanction letter dated 16.8.2004, 16.10.2005, 6.10.2005, 13.8.2007, 1.8.2008. These are several entries have to be explained. It has to be seen whether the Statement of Account which is duly certified as required under the law a Recovery Officer has signed the Statement of Account and the same officer can be seen signing the plaint which is a blunder on part of Plaintiff. It is further argued that the figures as shown in breakup the Annexure EE-5 and statement of accounts pertaining to A/C No.01000230, 20300169. 1305000 M, 106013550 and 23099909 the annexure EE-1 to EE-4 to the plaint are incomplete. The Statement and Plaint are not in corroboration with each other. It is further argued for the defendants counsel that during the term of finance facility the Plaintiff has charged markup and miscellaneous charges against the Islamic mode of financing and also denied that the Plaintiff obtained signatures on the Annexures to the defendant in blank. Further argued that the defendants have complied with the mandatory requirements of Sub Section 4 of Section 10 of the FIO, 2001. The plaintiff in his breakup illegally charged from the defendant a fine shown imposed by State Bank on the Plaintiff Bank can be seen in breakup of Plaintiff.”
(b) I have heard the learned counsel for the defendants and learned counsel for the Plaintiff and perused the plaint which shows that according to the plaintiff that liability was regularly received and adjusted as shown in the statement of account, the other documents attached with the replication and relying upon the citations on the subject relied upon by the learned counsel for the defendant not being given opportunity to rebut documents filed alongwith replication the validity of such documents has to be weighed and determined by way of evidence. It is also shown in the attached documents with the plaint that valuable securities were provided by the defendants for the availing the financial facility. I therefore find that the statement of account of the plaintiff and defendants will have to be considered and triable and substantial issues have been raised of question of law and facts and documents have been produced which has been brought on record in evidence to determine the liability of the parties. With due respects the relevant case law cited has been considered and relied upon as given in the order. I therefore allow unconditional leave to defend to the defendants, parties to file their respective Issues on the next date of hearing.”
5. We are of the opinion that the reasons as disclosed in the impugned order passed by the learned Banking Court, while granting leave to defend application to the respondent unconditionally are sufficient and valid reason to exercise the discretion vested in the learned Banking Court under Section 10 of the Ordinance, 2001, in favour of respondent to allow respondent to defend the case by producing evidence. We may observe that the discretion vested in the Court, Tribunal or Authority, if exercised in accordance with law and not tainted with malice or based on mis-reading or non-reading of evidence and material available on record, cannot be interfered by this Court in its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Counsel for the petitioner has failed to point out any jurisdictional error or any illegality in the impugned order passed by the Banking Court, whereas no malafide has been alleged in this regard. Learned counsel for the petitioner has also failed to point out as to what prejudice has been caused to the petitioner from the impugned order whereby leave to defend application has been granted to the respondent un-conditionally, particularly, when it has been observed by the learned Banking Court that there is sufficient security furnished by the respondent towards financial liability to secure the interest of petitioner bank.
6. In view of hereinabove, we are of the opinion that the impugned orders passed by learned Banking Court do not suffer from any error or illegality. Accordingly, instant petition was dismissed vide our short order dated 18.9.2013 and these are the reasons for such order.
J U D G E
J U D G E
Yaseen