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Petitioner: BANK OF PUNJAB through Authorized Attorney VS Respondent: Messrs AMZ VENTURES JUDGMENT
Court Name: Sindh High Court Judge(s): Mushir Alam, Sadiq Hussain Bhatti Title:BANK OF PUNJAB through Authorized Attorney vs Messrs AMZ VENTURES
JUDGMENT
Reported As: 2013 CLD 2033 Result: Appeal dismissed Judgment JUDGMENT ' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the Order dated 4-7-2011 passed by a learned single Judge of this Court in Suit No,B-27 of 2010 whereby an application under Order XXXIX, rules 1 and 2, C.P.C., filed by the respondent No,2, was allowed and the appellant was restrained from taking any action pursuant to its notice dated 26-8-2010. 2. Brief facts of the case, as narrated in the impugned order, are that appellant, The Bank of Punjab, provided two finance facilities in the sum of Rs,60 million each to respondent No,1 by way of bridge financing and, as security for repayment, respondent No,2 gave two guarantees each in the sum of Rs,64 million in the month of September and November, 2005. The respondent No,1 failed to make repayment of its liability and on or about 25-11-2006 the appellant made a formal demand for the repayment of the outstanding liability of the respondent No, 1. Thereafter certain negotiations were made between the parties and through an offer letter dated 30-3-2007 the appellant bank offered to convert the bridge financing into term financing on the conditions set forth in the said offer letter. This offer was accepted by the respondent No,1 on or about 4-4-2007. Subsequently, on or about 29-9-2008, the appellant served a notice on the respondent No,2 seeking encashment of the two guarantees provided by it. After institution of the said banking suit i,e, Suit No,B-27 of 2010, the appellant bank again served another notice dated 26-8-2010 on the defendant No,2 wherein reference was made to the two finance facilities made available to the respondent No,1 by the appellant and to the two guarantees provided by respondent No,2 for the repayment of the said finance facilities and it was alleged that the respondent No,2 had wilfully not performed its obligation under the guarantees and 30 days time from the date of the notice was given to make
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payment to the appellant bank failing which it was stated that the bank would be constrained to refer the matter to the Governor of State Bank of Pakistan for institution of proceedings under the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance, 1999"). It is against this notice that the respondent No,2 filed the above mentioned application under Order XXXIX, rules 1 and 2, C.P.C. 'seeking interim injunctive relief which was allowed vide order dated 4-7- 2011 which is impugned herein. 3. Mr. S: Hamid All Shah, advocate for the appellant, invited our attention to page 259 of the file and submitted that after receipt of the notice dated 26 August, 2010, instead of replying the same, the respondent No,2 filed the application under Order XXXIX, rules 1 and 2, C.P.C. And was able to obtain interim relief. On the point of maintainability of the Special High Court Appeal, the learned counsel stated that at least one right of appeal, which must be effective and not illusory, has to be provided to a party to test the judgment passed against him and that barring the right of appeal is against the injunction of Islam. He also submitted that every provision of law which purports to take away the right of appeal is to be construed strictly and is to be resolved in favour of the existence of right of appeal. In support of his contentions the learned counsel relied on the cases reported as (i) Federation of Pakistan v. Mufti Iflikharuddin and another (2000 SCMR 1), (ii) Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6), (iii) Chenab Cement Products Limited v. Banking Tribunal, Lahore and others (PLD 1996 Lah. 672), and (iv) Shafique Ahmed Butt v. Punjab Labour Appellate Tribunal (1983 CLC 1352). He stated that since the present appeal was filed after notice to the respondent under Order XLIII, C.P.C., therefore, the same was maintainable as no appeal, review or revision lies against the impugned order. He submitted that since in section 21 of the Financial Instructions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as "FIO, 2001") the words "final order" has been used therefore, the impugned Order could not be appealed against. In view of such position, the learned counsel added, the present High Court Appeal was maintainable. 4. On the question whether wilful default was committed by the respondents, the learned counsel submits that this duty to determine as to whether such default has been committed or not is cast upon the Accountability Court as the same is included in the schedule of offences of the National Accountability Ordinance, 1999 (hereinafter "NAB Ordinance"). He submitted that the term "wilful default" has to be considered and examined as it has been defined and interpreted in NAB Ordinance itself. A law cannot be interpreted by ignoring the express provisions of a statute and by importing therein extraneous considerations. It was also argued that the terms "amount due" or "ascertained amount" from the Banking or a Civil Court are alien to the NAB Ordinance and that when words of a statue are precise and unambiguous, no more is necessary to expound those words in their natural and ordinary sense. He further stated that the words contained in the overriding clause of NAB Ordinance are more comprehensive, therefore, the remedy of filing reference under the NAB Ordinance will not be barred. Reliance in this regard was placed on the case of Sunrise Textile Mills Limited v. Crescent Commercial Bank Ltd. And others (2007 SCMR 1569), Mrs. Shahida Faisal v. Federation of Pakistan and others (PLD 2005 SC 323)The Bank of Punjab v. Administrator General, Central Zakat (PLD 1994 Lahore 207), Mrs. Imtiaz Begum: v. Tariq Mehmood and another (1995 CLC 800), Umar Farooq Shah and others v. Mst. Shaqufta Nasreen and others (1997 CLC 1846), and Shaheen Airport Services v; Sindh Employees Social Security Institution (1994 SCMR 881). 5. Learned counsel for the appellant further submitted that interpretation which advances remedy has to be adopted arid an appeal can be converted into constitutional petition if so required as the High Court is the ultimate repository to decide the instant matter. He submitted that statute has to be understood in accordance with the plain meaning of the language therein. Nothing should be added or omitted from the statute to assign a new meaning to it. In this regard the learned counsel
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relied on the cases reported as Salah Muhammad v. Muhammad Roz and others (PLD 1962 (WP) Lahore 68), PIA Corporation v. Wafaqi Mohtasib and 2 others (PLD 1994 Kar. 32), Shamim Akhtar and others v. Mst. Maimoona. Begum (1996 CLC 1257), and International Multileasing Company v. Capital Assets Leasing Corporation Ltd. And others (2004 CLD 1). 6. It was argued by the learned counsel for the appellant that in the suit filed by the appellant the respondent/ defendant cannot file an application under Order XXXIX, rules 1 and 2 for seeking interim relief and that without the prayer for permanent injunction no prayer for interim injunction is maintainable. Reliance was placed on the case of. Mohar Khan and others v. Sultan Khan and others (1988 CLC 20), Marghub Siddiqi v. Hamid Ahmad Khan and others (1974 SCMR 519) and Unichem Corporation (Pvt.) Ltd. And others v. Abdullah Ismail and others (1992 MLD 2374). 7. The learned counsel further contended that pendency of civil proceedings relating to the same transaction will not be a bar to the commencement or continuation of criminal proceedings and that both the proceedings can proceed concurrently as conviction for criminal offence is altogether a different matter from civil liability. He submitted that civil proceedings relating to same transaction has never been considered as a bar to the continuation of criminal proceedings; while the purpose of criminal proceedings is to punish the offender for the commission of the crime whereas the purpose initiating civil proceedings is to enforce rights of a contract. Reliance was placed on the judgments reported as (i) Haji Sardar Khalid Naseem v. Muhamamd Ashraf and others (2006 SCMR 1192), Seema Fareed and others v. The State and another (2008 SCMR 839) and Talib Hussain u. AnarGul Khan and others (1993 SCMR 2177). 8. On the other hand, Mr. Salman Talibuddin, learned counsel for the respondent No,2, submitted the present High Court Appeal has been filed impugning in interlocutory order passed by the learned Single Judge on an application under Order XXXIX, rules 1 and 2, C.P.C. And, therefore, it is not maintainable in view of the provisions of section 22 of the FIO, 2001 which has provided the right of appeal only against a judgment, decree, sentence or final order. Therefore, the present appeal which has been filed against the impugned order, which is an interlocutory order, is not maintainable. He stated that the plaintiff/appellant itself treated the impugned order as interlocutory order because it was challenged through filing an HCA and not by filing an appeal under section 22 of the F.I.O., 2001. In this regard, the learned counsel has relied upon the following cases:-- (i) Messrs Mehran Solvent Extraction (Pvt.) Ltd. And others v. IDBP (2008 CLD 844), (ii) Ms. Afshan Ahmed v. Habib Bank Limited and another (2002 CLD 137), (iii) Habib Bank Limited v. Bela Automobiles Ltd. (2006 CLD 169), and (iv) Pakistan Fisheries Ltd. And others v. United Bank Limited (PLD 1993 SC 109). 9. Learned counsel, then, submitted that respondent No,2 is only guarantor, and not the principal debtor, therefore, it will only be responsible when liability of respondent No,1 i,e, the principal debtor/borrower, is determined. He submitted that the guarantees were issued by the respondent No,2 Bank and not by Mr. Rafiq Dawood. However, the learned counsel invited our attention to page 259 and stated that since notice was issued to respondent No,2, Dawood Investment Bank, therefore, an application under Order XXXIX, rules I and 2, C.P.C. Was filed by them which was allowed. He stated that the impugned notice was issued to Mr. Rafiq Dawood, who is neither the principal debtor nor a guarantor in his personal capacity but is an officer of the Bank. He submitted that the denial of the respondent No,2 is not a simple denial rather a legal question/objection was raised to the effect that the acts of the appellant have vitiated the guarantees provided by respondent No,2. The learned counsel states that a process for recovery of the alleged outstanding amount was initiated by filing the said banking suit before this Hon'ble Court, therefore, no question arises for filing a reference before NAB authorities till a decision in the suit is rendered. The learned
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counsel submitted that hen a person is before a Court he can seek injunction in the nature of section 10 of the Code of Civil Procedure. 10: When a specific query was put to the learned counsel for the respondent No,2 as to how he will respond to provisions of section 7(5) of the F.I.O., 2001,the learned counsel stated that the appellant i,e, The Bank of Punjab, may have recourse to any remedy under the statute under which it was established. Section 7 of the F.I.O., 2001 describes the powers of the Banking Courts and subsection (5) thereof states nothing in subsection (4) of the F.I.O. Ordinance, 2001 shall be deemed to affect "the right of a financial institution to seek any remedy before any court or otherwise that may be available to it under the law by which the financial institution may have been established". It is an admitted position that the present appeal has not been filed under any provision of the law under which the appellant bank was established. The present appeal has been filed under section 22 of the F.I.O., 2001 which specifically bars any appeal against an interlocutory order. 11. We have heard the learned counsel for the appellant and the learned counsel for the respondent No,2. Respondent No,1 has chosen not to come forward and participate in these proceedings. It is at its own peril and the said respondent will face the consequences of any order passed against it. 12, The first question, which is of pivotal importance in the circumstances of this Special HCA, is whether the same is maintainable or not. The learned counsel for the appellant is of the view the same is maintainable in view of provisions of Order XLIII, rule 3, C.P.C. Which provides that where an appeal is preferred against an order during pendency of a suit, the appellant shall give notice of such appeal to the respondent before presenting the same. On the other hand, learned counsel for respondent No,2 has referred to section 22 of the F.I.O., 2001 and contended that appeal under the said Ordinance is provided only against a 'judgment, decree, sentence or final order" and the impugned Order does not fall in any of these categories. Therefore, the present Special HCA is not maintainable. In respect of provisions of Order XLIII, C.P.C., the learned counsel invited our attention to section 4 of the F.I.O., 2001 and submitted that the provisions of the F.I.O., being a special law, will prevail over the provisions of Order XLIII, C.P.C. 13. Before we proceed further we deem it expedient to reproduce the provisions of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which reads as under: -- 22. Appeal.---(1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court. (2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing. (3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant: ' Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the degree-holder has been given an opportunity of being heard and unless the appellant deposits in cash with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being- granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security , shall stand reduced accordingly. (4) An appeal under subsection (1) shall be heard by a bench of not less than two Judges of the High Court and, in case the appeal is admitted, it shall be decided within 90 days from the date of admission.
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(5) An appeal may be preferred under this section from a decree passed ex parte. (6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend of any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19. (7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the judgment-debtor. 14. A perusal of above quoted section 22 of the F.I.O., 2001, reveals that under subsection (1) thereof, an appeal could be filed by a person aggrieved by any "judgment, decree, sentence, or final order passed by a Banking Court", within thirty days of such judgment, decree, sentence or final order, to the High Court, however, subsection (6) of the said section emphatically and in unambiguous terms bars filing of any "appeal, review or revision ... Against an order accepting or rejecting an application for leave to defend, or anti interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19." (underline to add emphasis). 15. Thus, it would be seen that the Legislature has provided an appeal only against a judgment, decree, sentence or final order passed by a Banking Court but no appeal is provided against an interlocutory order rather the right of appeal has been taken away from the litigants in respect of any interlocutory order.. It is worth mentioning that appeal is not provided even against an order which dismisses the leave to defend application because at this juncture the suit has not yet been decreed in favour of the opposing party. It is only the final decree which has been made appealable. The purpose behind such wisdom seems to be expeditious disposal of cases under the F.1.0., 2001 and to avoid unnecessary delays caused by filing interlocutory applications and the appeals filed against orders passed on such applications. 16. In this regard reference may be made to the case of Ms. Afshan Ahmed (supra), which was relied upon by learned counsel for the respondent No,2, wherein maintainability of an appeal was challenged under section 21(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and a learned Division Bench of this Court held as under:-- "It is thus to be observed that section 21(1) has provided the right of appeal against a decree/ order/sentence passed by a Banking Court. Any other order or decision not falling within the definition of the decree/order/sentence as specified cannot be challenged by way of an appeal under section 21 of the said Act. The impugned order obviously does not fall within any of the categories of the order specified in subsection (1) of section 21 so as to be appealable. It is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to he impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to the principles of interpretation of statute the Court would not act in a manner by which the object of a statute is defeated and the same is rendered nugatory. In the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another reported in 1996 SCMR 1165, the Supreme Court pronounced that when a statute does not provide an appeal against an interlocutory order the same could riot also be challenged by way of a Constitutional petition as allowing such an order to be assailed by way of a Constitutional petition would amount to defeating the object of the statute. A similar pronouncement was made by the Supreme Court in the case of Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others reported in 1998 SCMR 328. In this case the Hon'ble Supreme Court observed that when no appeal was provided against an interlocutory
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order then the same could only be challenged in the appeal to be filed against the final order/judgment." 17. Reference was also made to the provisions of Order XLIII, C.P.C. To argue that in view of such provisions, an appeal can be filed before the High Court after due notice to the respondent but the only relevancy of this provision in the C.P.C. With reference to subsection (2) of the section 22 of the F.I.O.. 2001 is that before filing an appeal before the High Court notice as envisaged under Order XLIII is a mandatory requirement. We would like to make it clear that it is a trite law that special laws prevail over the general law and in case of banking matters the Financial Institutions (Recovery of Finances) Ordinance, 2001 is the special law and the Civil Procedure Code even if its provisions are not specifically ousted by any section of the F.I.O., 2001 will still be a general law so, far as banking matters are concerned and therefore prima facie the provisions of section 22 of the F.I.O., 2001 will prevail over the general law and the sections providing for appeals and revisions under the Civil Procedure Code including Order XLIII, Rule 1(r), section 115 and section 96 of Civil Procedure Code and therefore if there is a bar for filing an appeal against an interlocutory order under subsection (6) of section 22 of the F.I.0., 2001 then in our humble opinion it cannot be circumvented by filing appeals or revisions under the provisions of Civil Procedure Code, even if the orders of a Banking Judge has been made on an application filed under any provisions of the C.P.C. 18. In yet another case, i,e, Pakistan Fisheries Ltd and others v. United Bank Limited (PLD 1993 SC 109), the Hon'ble Supreme Court held as under:-- "14. The case may also be examined from another angle. The object of enacting the Banking Companies (Recovery of Loans) Ordinance, 1979, is to provide speedy measures for recovery of outstanding loans of the Banking Companies as their recovery suits remained pending in the Civil Courts for years together. ' If the orders in the nature of interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made would be frustrated. The appellate power conferred on the High Court is only to the extent of entertaining appeal against the final order and judgment of the special Court and that too subject to the condition precedent prescribed by section 12 that the appellant deposits in the High Court an amount equivalent to the decretal amount or with the leave of the Court furnishes security equal in value to such amount. In Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others (PLD 1981 SC 359) this Court examined the issue as to the maintainability or otherwise of a revision under section 115, C.P.C., against an interlocutory order; considered in some depth the scheme the object and the relevant provisions of the Ordinance and came to the conclusion:- "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 interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decision 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. Thus, on consideration of the provisions of the Ordinance itself the revisional jurisdiction of the High Court in regard to such orders is excluded." 19. The authoritative pronouncement in the above cited judgment leaves no room for speculation that for assailing interlocutory orders passed under the Banking laws no right of appeal vests in the litigant and in fact it is specifically barred and resort cannot be made to the revisional and appellate procedure of the C.P.C. Or to the constitutional jurisdiction' by filing a petition under Article 199 of the Constitution to circumvent this specific bar under the banking law. 20. The argument in rebuttal that since the appellant in the above cited case itself treated the impugned order as an interlocutory and, therefore, filed a High Court Appeal whereas in the
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present case the appellant has filed a Special High Court Appeal under the provisions of F.I.O., 2001, would have no effect on the outcome as it would not be material whether a party treats an order as an interlocutory order or not. It would be decided on the basis of the definition of term "order" given in subsection (14) of section 2 of the Code of Civil Procedure which means any, decision of a civil court which is not a decree. In 'this view of the matter, the impugned order is not a decree and thus is an interlocutory order which is not amenable to the jurisdiction of this Court whether the same is assailed by way of a High Court Appeal, a Constitutional Petition or a Special High Court Appeal. 21. We find ourselves in complete agreement with the learned counsel for the…
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