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Petitioner: Messrs UNITED BANK LIMITED through Authorized Attorneys VS Respondent: BANKING JUDGMENT
Court Name: Sindh High Court Judge(s): Faisal Arab, Nadeem Akhtar Title:Messrs UNITED BANK LIMITED through Authorized Attorneys vs BANKING
JUDGMENT
Reported As: 2012 CLD 1556 Result: Petition allowed Judgment JUDGMENT ' NADEEM AKHTAR, J.---By a short order announced by us on 16-5-2012, this petition was allowed for the reasons to be recorded later and the two identical impugned orders dated 24-3-2010 passed by the Banking Court No,II at Karachi in petitioner's Suit No,289 of 2008 and respondent No,3's Suit No,303 of 2008 were set aside, whereby both the said suits were ordered to be consolidated. Following are the reasons for, allowing this appeal. 1. Brief facts of this case are that petitioner bank filed Suit No,289 of 2008 (old No,1032 of 2008) before the Banking Court No, II at Karachi jointly and severally against respondents 2 and 3 under the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001, hereinafter referred to as "THE ORDINANCE", for recovery of Rs,34,282,650.00 with cost of funds thereon and costs of the Suit. A decree for sale of two immovable properties mortgaged by respondent No,3 was also sought by petitioner in its, Suit, and it was further prayed by the petitioner that respondents 2 and 3 be restrained permanently from selling, alienating and disposing of the mortgaged properties and other hypothecated assets, or from creating third party interest therein. 2. Before the Banking Court it was the case of the petitioner that on the representations and warranties by respondents 2 and 3, the petitioner extended finance facilities to respondent No, 2, that is, a Non-Interest Cash Finance (NICF) facility of Rs,5,300,000.00 through an Agreement for Financing on Mark-up Basis dated 30-11-2005, and a Non-Interest Demand Finance (NIDF) facility of Rs, 19,700,000.00 through an Agreement for Financing for Medium/Long Term on Mark-up Basis dated 30-11-2005. Both the said facilities were availed and fully utilized by respondent No,2, and as security for the repayment and in consideration thereof, respondents 2 and 3 executed their
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personal guarantees in favour of the petitioner. Respondent No,2 also executed promissory notes and hypothecated his stocks, machinery, assets, etc. In favour of the petitioner. It was also the case of the petitioner that in order to further secure the repayment of the facilities, respondent No,3 mortgaged in favour of the petitioner her two immovable properties, namely, Shop Nos. 7 and 8, measuring 32 sq. Yds. Each, in the project known as Clifton Towers (Clifton Shopping Arcade), situated on Sub- Plot No,D-V, Block Plot No,FL-I, Block 5, KDA Scheme No,5, Clifton, Karachi. 3. The claim of the petitioner before the Banking Court was that, as respondent No,2 committed default in fulfilling his obligations, under the finance agreements, he was liable ' to pay a sum of Rs,34,282,650.00 to the petitioner. In this background, Suit No, 289 of 2008 was filed by the petitioner jointly and severally against respondents 2 and 3/,customers for recovery of the above mentioned amount. Respondent No,2 was sued as the principal borrower, whereas respondent No,3 was sued as the guarantor as well as mortgagor. Upon service of summons, respondents 2 and 3 filed separate applications for leave to defend, in reply whereof the petitioner filed its replications. It may be noted that in her application for leave to defend, respondent No,3 alleged that she was coerced by the petitioner to execute the mortgage deed, but she did not deny the mortgage of her above mentioned immovable properties in favour of the petitioner. Both the said applications were dismissed by the Banking Court by a detailed common order dated 2-5- 2009 after specifically holding that no substantial question of law or fact was involved in the matter, and further that respondents 2 and 3 had not only admitted that the facilities were availed, but they had also not complied with the mandatory provisions of Clauses (a) to (d) of section 10(4) of the Ordinance. 4. Respondent No,3 (customer/mortgagor) filed a separate Suit bearing No,303 of 2008 before the same Banking Court against the petitioner and respondent No,2 (customer / principal borrower), wherein she prayed inter alia for accounts, several declarations and for injunction that the above mentioned two immovable properties mortgaged by her should not be sold, transferred or alienated by the petitioner. In her said Suit No,303 of 2008 also. Respondent No,3 only alleged that she was coerced by the petitioner to execute the mortgage deed, but she neither denied the mortgage in favour of the petitioner nor redemption or cancellation of the mortgaged properties was sought by her. Petitioner filed its application for leave to defend in respondent No,3's said Suit wherein all the allegations and assertions were denied. 5. After dismissal of the applications for leave to defend filed by respondents Nos.2 and 3 in petitioner's Suit No, 289 of 2008 by order dated 2-5-2009, respondent No,3 filed separate and identical applications in her Suit No,303 of 2008 as well as in petitioner's Suit No, 289 of 2008 for consolidation of both the said Suits. The grounds on which consolidation was sought by respondent No,3 were that her Suit was in fact a counter claim against the petitioner and respondent No,2, and that consolidation would avoid multiplicity of litigation and contradictory judgments. Petitioner filed counter affidavits in reply to both the above mentioned applications to which no rejoinder was filed by respondent No,3. 6. By two separate orders, both dated 24-3-2010, passed by the Banking Court on respondent No,3's above mentioned applications in petitioner's Suit No, 289 of 2008 and respondent No,3's Suit No, 303 of 2008, respondent No,3's said applications were allowed and both the aforesaid Suits were ordered to be consolidated. Being aggrieved by both the aforesaid orders, the same have been impugned in this petition by the petitioner. 7. Mr. Rasheed A. Akhund, learned counsel for the petitioner, vehemently challenged the impugned orders by arguing that both the Suits could not have been consolidated as leave to defend had already been refused to respondent No,3 in petitioner's Suit on 2-5-2009, whereas petitioner's application for leave to defend in respondent No,3's Suit is still pending. Strongly relying upon section 10(11) of the Ordinance, learned counsel submitted that the intent and spirit of this Sub-
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Section is that judgment and decree in favour of the plaintiff against the defendant must follow when defendant's application for leave to defend is rejected or where the defendant fails to fulfil the conditions attached to the grant of leave to defend. Mr. Akhund emphasised particularly on the words "shall" and "forthwith" used in section 10(11) and submitted that, in any of the events mentioned in section 10(11), Banking Court must forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant. Learned counsel further contended that, in- view of the mandatory provision contained in section 10(11), it was the duty of the Banking Court to pass judgment and decree in favour of the petitioner against respondents 2 and 3 forthwith upon dismissal of their applications for leave to defend as there was nothing left for "trial" in petitioner's Suit No,289 of 2008. Learned counsel also contended that in view of section 10(11) of the Ordinance, after dismissal of the applications for leave to defend of respondents 2 and 3 there was no question of a claim or counter claim between the parties as alleged/claimed by respondent No,3. 8. Mr. Rasheed A. Akhund specifically pointed out that filing of applications for consolidation by respondent No,3 after seven months of dismissal of her application for leave to defend was nothing else, but an obvious attempt to delay petitioner's Suit and to abuse the process of the court. He contended that because of the impugned orders further proceedings in petitioner's Suit No, 289 of 2008, which, under section 10(11) of the Ordinance, became ripe for passing of judgment and decree on 2-5-2009 upon dismissal of applications for leave to defend of respondents 2 and 3, have, been indefinitely postponed/stayed. He contended that such postponement/stay of petitioner's Suit is illegal as section 9(4) of the Ordinance prohibits application of section 10, C.P.C. According to the learned counsel, by not passing judgment and decree in favour of the petitioner after dismissal of the application for leave to defend of respondents 2 and 3, the Banking Court/respondent No,1 has not only committed a grave error in law, but has also deprived the petitioner from the right of obtaining judgment and decree against respondents 2 and 3. In the end, learned counsel submitted that the impugned orders are not speaking orders and the same have been passed by the Banking Court in an arbitrary and mechanical manner without application of mind as no reasons have been given therein for consolidation of Suits except that it would be just, proper, legal and in the interest of justice to consolidate both the Suits. 9. In support of his above submissions, Mr. Akhund heavily relied upon a Full Bench case decided by this court, namely, Muhammad Shafi and others v. Habib Bank Ltd. And others, reported as 2011 CLD 373, authored by one of us (Faisal Arab, J.). Paragraph 8 at pages 1581, 1582 and 1583 of the judgment delivered in the above mentioned Full Bench case is reproduced below for convenience and ready reference, as the same is relevant for the purposes of this case:-- "8. In the present case, transfer of suits from the Banking Court to the banking jurisdiction of this High Court has been sought to avoid multiplicity of proceedings as well as to avoid conflicting judgments. These grounds are also to be examined in the light of the intent behind incorporation of section 9(4) of the 2001 Ordinance. Section 9(4) makes provisions of section 10 of Civil Procedure Code inapplicable to banking cases. Section 10 was incorporated in the Civil Procedure Code to prevent trial of two suits relating to same subject matter between the same parties or their representatives claiming under the same title. This provision of law makes it mandatory upon the Civil Courts of ordinary jurisdiction to stay a suit instituted subsequently in case all the conditions provided in section 10 are available in a case. Even where all such conditions are not available, two or more suits can still be consolidated and tried jointly if the ends of justice so demand. This is, no doubt, done to avoid multiplicity of proceedings and to avoid conflicting judgments. However, for trial of recovery suits filed under banking laws, the law makers intended expeditious disposal of banking suits for which summary mode of trial has been provided under the banking laws. The object behind providing expeditious mode of trial is that the controversy in banking courts generally pertains to accounting disputes which could be decided by merely
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considering the statement of accounts and the documents of financial transactions executed by the parties. This saves the banking Court from undertaking a time consuming process of recording evidence in each and every case. In order to ensure that this object of expeditious disposal of banking suits is not defeated by an unwilling customer of the financial institution who may file his own suit before the financial institution could file its own recovery suit and then invoke provisions of section 10 of Civil Procedure Code or seek consolidation of the two suits just to detay the disposal of the suit filed against him, the provisions of section 10 have been made inapplicable to banking suits under section 9(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Section 9(4) of the 2001 Ordinance thus enables the banking Court to proceed with the trial of the suit filed bu a financial institution irrespective of the fact that the customer has already filed a suit for settlement of account or damages against the financial institution. In this manner, a suit which though may have been filed bu a financial institution subsequent to the suit filed against it bu its customer, nevertheless it continue to proceed and is not liable to be stayed on the basis of the conditions laid down in section 10 of the Civil Procedure Code. This facilitates expeditious disposal of the recovery suit filed by financial institution against an unwilling customer. The customer's suit for damages or accounts, filed against the financial institution proceeds separately and is decided after the process of recording evidence is completed. This object of expeditious disposal of recovery suits under banking laws should not be lost sight of while deciding transfer applications. The purpose behind providing expeditious mechanism for disposal of banking cases under banking laws would be defeated if this aspect of the matter is ignored while considering transfer applications for trial of both the suits together. It would be unfair to a financial institution whose rights and obligations can be expeditiously determined in summary proceedings to subject it to undergo rigors of a regular trial. Therefore, transfer of suit for its trial with other suit should not be allowed where customer's application for leave to defend the suit has already been dismissed. (Emphasis added). ' Though the above mentioned judgment was passed by a learned Full Bench of this court in a matter wherein transfer of one suit was sought for trial with another Suit after consolidating both the Suits, but the principles laid down by the learned Full Bench are fully applicable to the instant case. In the instant case also respondent No,3 filed Suit before the petitioner could file Suit for recovery against her. It is important to note that in the instant case respondent No,3's application for leave to defend was dismissed on 2-5-2009, therefore, there was no question of "trail" of both the Suits together. In the above mentioned case, the learned Full Bench specifically held that transfer of suit for its "trail" with other suit should not be allowed where customer's application for 'leave to defend the suit has already been dismissed. 10. On the other hand Mr. Muhammad Ilyas Khan Tanoli, learned counsel for respondent No,3, strongly opposed this petition mainly on the ground of its maintainability. He submitted that impugned orders are interlocutory in nature which are not appealable under section 22 of the Ordinance. He further submitted that any order which is not appealable under section 22 of the Ordinance cannot be challenged in constitutional jurisdiction of this Court. It was his contention that consolidation of both the suits is fully justified as parties thereto and issues involved therein are the same, therefore separate trial of both the suits would create hardship to parties and multiplicity of proceedings, and may result into passing of conflicting judgments. Learned counsel prayed for dismissal of this petition on the above grounds. No other ground was urged before us by the learned counsel. He relied upon the cases discussed below, which in our humble opinion and with respect to the learned counsel, are not applicable to and are clearly distinguishable with the instant case for the reasons mentioned under each of them:-- (i) PLD 1996 SC 77:
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' Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others. ' Reliance on this case on behalf of respondent No,3 is misconceived as this case was in respect of a banking matter falling under the repealed Banking Tribunals Ordinance, 1984, wherein defendant could file written statement as a matter of right and no application for leave to defend was required to be filed. The facts of this case were totally different as final judgment and decree passed by Banking Tribunal was challenged in appeal before the Division Bench of Peshawar High Court, who directed the appellants to deposit decretal amount with the bank which was a condition precedent under the said repealed Ordinance for entertaining an appeal. The said order was of Division Bench of Peshawar High Court, who directed the appellants to deposit decretal amount with the bank which was a condition precedent under the said repealed Ordinance for entertaining an appeal. The said order was not complied with due to which the appeal was dismissed. The bank initiated execution proceedings which were challenged by the judgment debtors in constitutional jurisdiction before the Division Bench of Peshawar High Court. The said petition was dismissed by the learned Division Bench by holding inter cilia that, after dismissal of their appeal, the judgment debtors did not avail the remedy of filing leave to appeal before the Hon'ble Supreme Court. This authority of the Hon'ble Supreme Court cited by learned counsel for respondent No,3 in fact supports the grounds urged on behalf of the petitioner. The learned counsel relied upon such portion of above cited authority which is not relevant to this case, that is, no court or authority was competent to call in question any proceeding, order, judgment or decree of Banking Tribunal, and that constitutional petition against decree of Banking Tribunal was not competent. With such findings, the Hon'ble Supreme Court dismissed the petition. (ii) 2004 SCMR 108: ' Messrs First Women. Bank Limited v. Registrar, High Court of Sindh, Karachi and 4 others. ' This was a banking matter under the repealed Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act of 1997. This case is also not applicable in the present case as the new words "Banking Court shall forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant" introduced for the first time in section 10(11) of the Ordinance were not mentioned in the said repealed Act. The implications of the above quoted new provision of section 10(11) are completely different as held by the learned Full Bench of this court in 2011 CLD 373 (supra). Moreover, in this case the Hon'ble Supreme Court was pleased to hold that "trial" of both the Suits as "joint trial" would be expedient in the interest of justice and parties. Whereas in the instant case,. The stage of "trial" in petitioner's Suit ended on 2-5-2009 when respondent No,3's application for leave to defend was admittedly dismissed. (iii) 1991 SCMR 2355: ' Pakistan through Secretary Ministry of Food, and Agriculture v. Special Court (Banking) Sindh and others. ' In the above cited case, an interlocutory order was passed by the Banking Court under Order XXXVII, Rule 3, C.P.C. Whereby, while granting leave to defend the Suit on furnishing security, addition of parties was refused and inclusion of additional amount in Suit was allowed. The Hon'ble Supreme Court was pleased to hold that, although such order was passed under Order XXXVII, Rule 3, C.P.C. And not under Order I, Rule 10, C.P.C. Or under Order VI, Rule 17, C.P.C., yet the said order could be challenged in appeal from final judgment. It was further held that alternate remedy by way of appeal being available and same having not been availed of constitutional jurisdiction could not be invoked. In our humble opinion the above cited case will not apply to this case, firstly, as the above cited case was decided on 1-7-1991 when the mandatory implications of section 10(11) of the Ordinance discussed in paragraph (ii) above were not in the field ; and secondly, as remedy
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of appeal was available in the above cited case which was not availed, whereas in the instant case remedy of appeal was admittedly not available to the petitioner. (iv) 2009 SCMR 301: ' Zarai Taraqiati Bank v. Laeeq Ahmed. ' In this case the bank had challenged before the Hon'ble Supreme Court the decree passed in favour of the customer. Before the Hon'ble Supreme Court, the bank stated that bank's Suit is "matured for conclusion" and if the decree passed in customer's Suit against the bank is stayed till the decision of bank's Suit, the bank will not press its case before the Hon'ble Supreme Court. The customer conceded to this proposition and bank's petition was disposed of by the Hon'ble Supreme Court in the said terms. This case is clearly distinguishable. In the above cited case customer's Suit had been decreed and bank's Suit had matured for conclusion, whereas in the present case, customer's Suit and the application for leave to defend filed therein by the bank (petitioner) are still pending, and in bank's (petitioner's) Suit the stage of "trial" ended when customers' applications for leave to defend were dismissed. Moreover, the above cited order was passed with the consent of the parties, which is not the case in the present petition. (v) 2006 SCMR 1262: ' Muhammad Yaqoob v. Behram Khan. ' With respect to the learned counsel, reliance on this case on behalf of respondent No,3 is misconceived and irrelevant as this was not a case of consolidation of banking Suits, but was a case of consolidation of two civil Suits, one for specific performance of contract and permanent. Injunction, and the other for possession, mesne profits and permanent injunction. Concept of consolidation of two or more civil Suits is entirely different from that of banking Suits as the latter are governed by a special statute. (vi) 2001 SCMR 410: ' Messrs Tri-Star Polyester Limited and another v. Citi, Bank. ' In the above cited case, bank's application for condonation of delay in filing application for leave to defend was accepted by a learned single judge of this court subject to payment of Rs,20,000.00 as costs, which order was challenged directly before the Hon'ble Supreme Court. The Hon'ble Supreme, Court held that no appeal was competent against interlocutory order under the provisions of the repealed Act of 1997. In our opinion, this case in fact supports the case of the petitioner who has come for relief in the constitutional jurisdiction of this court against the impugned orders as appeal against the impugned orders is not competent under the Ordinance of 2001 even according to the learned counsel for respondent No,3. (vii) 1998 SCMR 1961: ' Bolan Bank Limited v. Capricorn Enterprises (Pvt.) Ltd. ' In this case also the Hon'ble Supreme Court held that no appeal, review or revision shall lie against any interlocutory 'order of the Banking Court under the repealed Act of 1997. This case also supports the case of the petitioner as observed by us in paragraph (vi) above. (viii) PLD 1994 Karachi 67 (Division Bench): ' Syed Ali Azhar Naqvi v. The Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others. ' This Division Bench case of this court was decided under the repealed Banking Tribunals Ordinance, 1984. It was held in this case in paragraph 10 at page 70 that "The intention of the legislature seems to be against any interference during the trial until the matter has been finally decided. This derangement accords with the objective of the law, for, interference during the pendency of the Suit is bound to delay the conclusion of the trial". It is our humble opinion that the above cited authority supports the case of the petitioner as respondent No,3, by filing application for consolidation of both the Suits after dismissal of her application for leave to defend, interfered
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during pendency of petitioner's Suit in order to delay its conclusion in terms of section 10(11) of the Ordinance. (ix) 2003 CLD 1447 (SHC) (Division Bench) : ' M. A. Kareem Iqbal v. Presiding Officer, Banking Court No,III and 4 others. ' With respect to the learned counsel, reliance on the above cited case is misconceived. In the above cited case, constitutional petition was filed by the customer before this court against an interlocutory order whereby his application for leave to defend was dismissed, which is not the position in the instant case. On this ground the petition was dismissed. (x) 2003 CLD 1487 (SHC) (Division Bench): ' Karachi Pipe Mills Limited v. Habib Bank Ltd. And another. ' Again with respect to the learned counsel, reliance on the above cited case is misconceived. In the above cited case. Instead of filing a constitutional petition, a High Court Appeal was filed before this court against an interlocutory order by an auction purchaser in execution proceedings arising out of a banking Suit. The appeal was dismissed on the ground that the impugned order was not a final order. (xi) 2003 CLD 1822: ' Marhaba Textile Ltd. v. Industrial Development Bank of Pakistan. ' In the above cited case, two matters were ordered to be consolidated by a learned single judge of this court, one a banking Suit filed by the customer against the financial institution under the…
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