Declaration by Banking Court

Citation Name : 2007 CLD 656 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALLIED BANK OF PAKISTAN LIMITED through Manager

Side Opponent : Messrs SAWAN IMPEX through Sole Proprietor
---Ss.9, 10, 15 & 22---Specific Relief Act (I of 1877), Ss.42 & 54--Suit for declaration
and permanent injunction---Application for leave to defend suit---Rejection of
application---Appeal---Application filed by defendant Bank for leave to defend
suit was dismissed and suit filed by plaintiff was decreed against defendant
Bank by the banking court taking the view that plaintiff was liable to pay
amount of Rs.75,26,635 as full and final liquidation of the liabilities and
defendant Bank was entitled to draw the same amount---Defendant Bank had
filed appeal against judgment of banking court contending that banking court
had proceeded arbitrarily in rejecting application for leave to defend the suit as
per record, liability of plaintiff was Rs.1,17,41,508.95 till 16-1-2003 and that any
dispute about correctness thereof could be determined only by granting leave to
defend suit and after due trial of the suit ---Validity--Availing of financial
liability had not been denied by the plaintiff---Whole issue was about the correct
determination of quantity of liability and amount due---Defendant Bank had
come up with the plea through his application for leave to defend the suit that
liability of plaintiff was to the extent of Rs.1,17,41,508.95, but as per version of
plaintiff said amount was Rs. 75,26,634.48 and said amount was in fact
outstanding against plaintiff---Approach adopted by banking court was
untenable, factually and legally as assertion made by defendant Bank and
grounds for leave to defend urged in the application, warranted due
consideration and such a summary disposal of the suit was not called for when
there was a serious dispute and controversy involved was about the amount due
from plaintiff---Judgment of banking court was not maintainable to the extent of
dismissal of application for leave to defend the suit---Said application would be
deemed to be pending, which would be heard and decided by banking court in
accordance with law.

Side Appellant : ELAHI BANISH
Side Opponent : ZARAI TARAQIATI BANK LIMITED through Branch Manager
--Ss. 9, 10 & 22---Suit against Bank--Application for redemption of mortgaged
property---Appeal against judgment of banking court ---Appellant filed suit for
declaration against Bank---Bank filed application for leave to defend suit which
was granted and Bank filed written statement---Bank contended in the written
statement that appellant was defaulter of Rs.2,61,447 up to 30-6-2000 and
appellant who conceded liability to pay said amount, prayed to banking court
that appellant be allowed two years period for repayment of said amount in the
form of quarterly instalments---banking court allowed appellant to make
payment of amount in question in quarterly instalments and appellant deposited
said amount in instalments accordingly and moved application for redemption,
of mortgaged property---Bank contested said application through written reply
and contended that appellant was required to pay further amount of Rs.1,29,307
as outstanding plus Rs.15,198 against tubewell amount---banking court
dismissed application of appellant for redemption of mortgaged property---
Validity---Bank had categorically stated in its application for leave to defend suit
that appellant was a defaulter to the tune of Rs.2,61,447 and said amount was
paid by appellant in accordance with order of the banking court in
instalments---Counsel for Bank had failed to show as to how appellant was liable
to pay further amount as claimed by the Bank---Appellant who had complied
with judgment and decree of banking court and paid agreed amount in
instalments, could not be held defaulter for amount as claimed by the Bank---
Order of banking court dismissing application of appellant for redemption of
mortgaged property, was set aside and case was remanded to banking court for
passing order of redemption of mortgaged property, accordingly.

Side Appellant : PASSCO
Side Opponent : OMER BILAL TRADERS (PVT.) LIMITED
--Ss.9, 10 & 22---Civil Procedure Code (V of 1908), O.VII, R.10---Suit for
declaration and permanent injunction---Application for leave to defend suit
raising objection as to jurisdiction of banking court to entertain such suit---
Plaintiff conceding to the objection--Return of plaint to plaintiff without decision
of leave application--Appeal against such order by defendant---Validity---
Defendant was neither asked nor did he specifically consent to return of plaint
nor was heard---No reason was recorded by court on absence of its jurisdiction
and consequent return of plaint---Acceptance of such concession or objection
without scrutinizing legality thereof was a course contrary to law---Such
objection of defendant and confessional statement of plaintiff thereto could not
absolve court of its duty to decide question of 'existence or non-existence of its
jurisdiction with reasons and reference to law---Defendant's objection on court 's
jurisdiction would not be relevant, if under law court had jurisdiction as law on
the subject had to be given effect to-Objection or concession contrary to law
would not bind any party nor would principles of estoppel apply thereto---Plea
on jurisdiction raised by defendant was a plea of defence of suit---Defendant
without first obtaining leave from court could not defend suit--High court set
aside impugned order, resultantly suit would be deemed pending before
banking court, which would first consider and decide leave application and then
proceed to decide question of jurisdiction or/and suit in accordance with law.

Side Appellant : Messrs MULTIMED MARKETERS through Managing Partner
Side Opponent : UNITED BANK LIMITED through Manager
--Ss. 9, 10 & 22---Borrowers filed suit seeking declaration that mark-up being
charged by the Bank was illegal---Bank on the other hand filed suit for recovery
of loan against the borrowers---Bank when served, filed application seeking
leave to defend the suit by the borrowers---banking court rejected plaint in
borrower's suit holding that plaint in their suit did not disclose any cause of
action, whereas banking court decreed suit filed by Bank against borrowers vide
consolidated judgment and separate decrees---Validity---banking court instead
of deciding first application of Bank filed by it to defend suit against it, rejected
plaint of borrowers through impugned judgment, which was not justifiable---
banking court was obliged under the law to first decide Bank's application for
leave to defend the suit on its own merits before embarking upon the suit---If
banking court was of the view that substantial question of law and facts were
raised by the Bank, then at best leave to defend, could have been granted to
Bank, but at that stage neither plaint could be rejected nor the suit could he
dismissed---banking court , in circumstances had violated provisions of S.10(8)
of Financial Institutions (Recovery of Finances) Ordinance, 2001---banking court
without rendering any reasons or/and adverting to grounds raised in borrower's
plaint, had abruptly held that their plaint did not raise plausible or substantial
questions of law and facts---Tenor of impugned judgment showed that Bank's
suit was decreed in view of dismissal of borrowers suit---Leave application filed
by borrowers in Bank's suit did disclose substantial questions of law and facts, in
which evidence needed to be recorded---Interest of justice would have been
adequately met if banking court granted leave to borrowers subject to
imposition of some conditions---Allowing appeals impugned consolidated
judgment and both decrees were set aside by the High court ---Both suits and
leave applications filed by respective parties would be deemed to be pending
before banking court which would decide same afresh after hearing parties in
accordance with law.
Citation Name : 2007 CLD 232 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUHAMMAD KHALID
Side Opponent : K.A.S.B. BANK LTD. through Managing Director
----Ss. 9 & 15---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2, Ss.151 &
10---Arbitration Act (X of 1940), S.34---Suit for declaration and injunction against
bank--Application for injunction to restrain bank from selling mortgaged
property---Decision of interlocutory application filed by defendant before
deciding the application for leave to defend---Scope---Service of notices under
S.15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---
Procedure--Plaintiffs filed suit seeking declaration that notices issued by
defendant-bank under S.15(2) of Financial Institutions (Recovery of Finances)
Ordinance, 2001, for sate of their mortgaged properties were illegal, void and of
no legal effect---Plaintiffs also filed application under O.XXXIX, Rr.1 & 2 read
with S.151, C.P.C. to restrain defendant (Bank) from selling properties mortgaged
with it---Plaintiffs contended that before deciding any application filed by them,
court teas first to decide application for grant of leave to defend the suit that
defendant charged mark-up in excess of what was agreed upon between parties;
that defendant bank's facility was fully secured and notices in question had been
issued mala fide and without lawful authority-Validity--Application on behalf of
defendant was normally not entertained without first deciding whether
defendant was entitled to grant of leave or not, but if plaintiff had filed
application and delay in deciding application might cause prejudice to defendant
while hearing such application on its merits, defendant's contention could be
looked into---Even application under S.10, C.P. C. and application under S.34 of
Arbitration Act, 1940, filed by defendant without deciding the application for
leave could be heard and decided on its merits---Subsection (12) of S.15 of
Financial Institutions (Recovery of Finances) Ordinance, 2001, provided that
neither banking court nor High court was to grant an injunction restraining the
sale or proposed sale of mortgaged property unless court was satisfied that no
mortgage in respect of immovable property had been created; or all money
secured by mortgage of mortgaged property had been paid; or mortgagor or
objector deposited in banking court in cash, the outstanding mortgage money--
Section 15 of the Ordinance, required that in case of default in payment by
customer, financial institution might send a notice to mortgagor demanding
payment of mortgaged money outstanding within 14 days from service of notice
and second notice in this regard was to be served within next 14 days---
Mortgagor if jailed to pay amount after service of second notice, Uteri financial
institution had to serve a final notice demanding payment within 30 days from
service of notice on customer---Upon service of final notice, financial institution
acquired right to recover rent and profit from mortgaged property till the time
notice was withdrawn and to sell mortgaged property without intervention by
public auction--Three notices served upon plaintiffs would satisfy requirements'
of S.15(2) of the. Ordinance---Plaintiffs were not entitled to grunt of relief prayed
in application for grant of u junction order against defendant--Interest of justice.
however,, was to be served if defendant-Bank first sold one property of plaintiffs
in the first instance and if from proceeds of sale, outstanding due could not be
satisfied, then to put second mortgaged property for sale---Application was
dismissed.

Side Appellant : SAUDI PAK COMMERCIAL BANK LTD.
Side Opponent : A.H. INTERNATIONAL (PVT.) LTD.
---Ss. 16(1), 23(1)(2) & 9(5)---Civil Procedure Code (V of 1908), O.XXXVIII, R.5 &
S.151---Transfer of Property Act (IV of 1882), S.52---Suit for recovery of bank
loan---Application for attachment of property before pronouncing judgment---
Scope---Transaction of sale not made to defeat or delay prospective decree or to
defeat right of creditors---Effect---Plaintiff Bank filed suit for recovery of loan
amount against defendants and also joined different banking -companies as
defendants having Pari Pasu charge on assets of the defendants---During
pendency of suit plaintiff filed application under S.16 of Financial Institutions
(Recovery of Finances) Ordinance, 2001, read with O. XVIII, R.5 & S.151, C.P.C.
to attach property of defendants---Plaintiff contended that on having information
that defendants intended to sell property in question, notice was served on them
to the effect that sale was in violation of S.53 of Transfer of Property Act, 1882, as
defendants were heavily indebted to plaintiff and that in case property was not
attached it was to become difficult for plaintiff to adjust liability---Defendant
banking Company argued that with its permission defendants agreed to sell
property in question on which four defendant-banking Companies had their
Pari Pasu mortgage charge; that by sale of said property, defendants were to be
in a position to adjust part of their liabilities; that property in question was not
mortgaged with plaintiff-Bank and that plaintiff-Bank had only 7% share in total
liability against defendants, hence plaintiff was not entitled for attachment of
property in question---Validity---Under S.16(1) of the Financial Institutions
(Recovery of Finances) Ordinance, 2001, financial institution could after filing of
suit, file an application to restrain customer from transferring, alienating, parting
with possession of property which was mortgaged, pledged, hypothecated or
assigned or which was subject to any obligation---Since property in question was
neither under mortgage of plaintiff, nor plaintiff had any charge over it nor same
was subject to any obligation in favour of plaintiff, therefore, application under
S.16(1) of the Ordinance was not maintainable---Under Ss.16, 23(1) & 23(2) of the
Financial Institutions (Recovery of Finances) Ordinance, 2001, before
pronouncement of judgment and interim decree or otherwise, Plaintiff-Bank
could ask for attachment of property of customer over which it had charge and
customer could not transfer it but after passing of decree---Customer could not
deal with any of his property except with prior written permission of banking
court ---Bank, however, could apply for attachment of property other than one
over which Bank had charge under. O.XXXVIII, R.5, C.P.C.---Under S.53 of
Transfer of Property Act, 1882, transaction for sale of immovable property by
debtors could not be held void or voidable transaction at the option of creditors,
if the same was carried out in normal course of business bona fide and not with
intent to defeat or delay creditors-Plaintiff in order to bring his case within ambit
of S.53 of Transfer of Property Act, 1882, was to establish that transfer of
property was made with intent to defeat right of creditors-Plaintiff in order to
attract provisions of S.53 of Transfer of Property Act, 1882, should have filed suit
seeking declaration that transaction was void but no such relief had been asked
for by plaintiff in his suit---Notice for sale of property in question was. published
much prior to filing of suit and as such it did not lie in mouth of plaintiff to say
that defendants were disposing of property with intent to obstruct or delay
execution of any decree that might be passed against them---Object of
O.XXXVIII, R.5, C.P.C. was not to paralyse the normal and bona fide transaction
and unless it was established that defendants were about to dispose of property
with intent to defeat or delay decree that might be passed, normally ,court was
not to pass order for attachment of property before judgment---Defendant
banking Company's charge on property was prior in time to that of plaintiff's
and on principle of qui prior est tempore portior estjure (he has a better title who
was first in time), plaintiff had no prima facie case---Balance of convenience also
was in favour of defendants as by disposal of mortgaged property, outstanding
dues of defendant banking Companies who had charge on property could be
adjusted, whereas to restrain sale of property was to result in increasing
liabilities of defendants---Application for attachment of property was dismissed.

Side Appellant : SHAHID MAHMOOD
Side Opponent : BANK AL-FALAH LIMITED through Manager
--Ss.9 & 10---Specific Relief Act (I of 1877), Ss.42 (Si 54---declaration and
injunction---Dismissal of suit as well as application for leave to defend the suit-
Effect-Declaratory suit was filed by borrower and hank filed application under S.
I0 of Financial Institutions (Recovery of Finances) Ordinance, 2001, seeking leave
to defend the suit---banking court dismissed application of bank and also
disposed of suit of borrower on the ground that same could not be proceeded---
Validity---Approach of banking court in simultaneously dismissing application
for leave to defend and suit was not recognized under the law and was in
complete departure from the procedure prescribed under law---After dismissal
of bank's leave application, suit could not have straightaway been decreed or
dismissed without affording opportunity to borrower to produce evidence in
support of his claim---Even after rejecting of bank's leave application in suit for
declaration and permanent injunction, decree could not have been passed
straightaway as the claim of declaration could not be equated with the suit
founded on negotiable instruments---When bank failed to obtain leave to defend
the suit, banking court was legally obliged to decide the suit after calling upon
the borrower to produce evidence in respect of his claim---In such like cases,
even if a defendant had not appeared before banking court or was not granted
leave, the court was not absolved of its duty to apply its judicial mind to the facts
and circumstances of each case---Bank had neither filed appeal nor cross-
objections against order of dismissal of leave application and seemed to be
satisfied, therefore, order rejecting its leave application had attained finality---
High court declined to interfere in the order of banking court to the extent of
dismissal of leave application but set aside the order dismissing the suit of
borrower---Case was remanded to banking court by the High court for decision
afresh after recording of evidence-Appeal was allowed accordingly.

Side Appellant : Messrs A-UMAR FABRICS through Proprietor
Side Opponent : HABIB BANK LIMITED through General Attorney/Manager
---S.7(4)---Specific Relief Act (I of 1877), Ss.42 & 56---Dispute between bank and
borrower---Declaratory suit, dismissal of--Two suits were filed before banking
court , one by borrower seeking declaration against hank and the other by bank
for recovery of loam--Suit filed by borrower was dismissed while that of bank
was decreed---Validity---Controversy canvassed in the suit filed by borrower
was to be settled on the petition for leave to appear/defend the suit filed by
bank, thus cognizance of such suit being prohibited by S.56 of Specific Relief Act,
1877, was rightly refused to be independently adjudicated upon.

Side Appellant : UNITED BANK LIMITED through Manager
Side Opponent : KHAN DUR MUHAMMAD KHAN TAREEN through Legal
Heirs
--Ss. 9 & 22---Suit by customer against Bank---Customer, who was holding a
Fixed Deposit and Savings Bank Account with the Bank, was informed by Bank
that disputed amount was being appropriated towards alleged dues of two
firms---Customer initially filed suit for declaration to the effect that he was not
liable for any claim against said firms and that he was not connected with the
firms in any manner and was not liable for any dues/outstanding against
same---Said suit subsequently was transferred to banking court which decreed
the same---Validity---Bank had referred to some undertaking given by customer
binding himself for repayment of dues of said firms---Plea of Bank was that
customer had given an authority to the Bank to appropriate amount in question
against dues of said firms by executing a letter of lien---Statement of customer
was recorded in the court , but he was not at all confronted with said letter of
lien---Signatures of customer were compared on request of the Bank--Account
opening form was dated 4-11-1970 while alleged letter of lien bore the date as 29-
10-1971---Signatures on said two documents were examined with the assistance
of counsel for parties and dissimilarity was found in the same---Evidence of
customer had been recorded, while evidence of the Bank had been closed after
giving about eight years period to do the needful and case remained pending for
13 years---In view of such conduct of the Bank, no prejudice was caused to the
merits of case---Appeal by Bank, against judgment of banking court , was
dismissed, in circumstances.

Side Appellant : ZARAI TARAQIATI BANK LIMITED through Manager
Side Opponent : Syed FURRAKH HUSSAIN SHAH
---Ss.42 & 54---Financial Institutions (Recovery of Finances) Ordinance (XLVI of
2001), Ss.9 & 10---Declaratory suit---Procedure---Dismissal of leave application---
Plaintiff (borrower) filed suit for declaration against defendant (bank) wherein
banking court declined to grant leave to defend the suit to defendant and suit
filed by plaintiff was decreed---Plea raised by defendant was that after rejection
of leave application of defendant, declaratory suit could not have been decreed---
Validity---After rejecting defendant's leave application in the suit for declaration
and permanent injunction, decree could not have been passed straightaway, as
the claim of declaration could not be equated with the suit founded on
negotiable instruments---When defendant failed to obtain leave to defend in
plaintiff s suit for declaration and permanent injunction, banking court was
legally obliged to decide the suit after calling upon the plaintiff to produce
evidence in support of his claim---banking court thus deviated from the
procedure provided under the special statute---In such types of suits, even if a
defendant failed to file application for leave to defend the suit or its application
was dismissed and leave was refused, banking court was legally obliged to
decide the suit after recording of plaintiff s evidence in support of his claim,
thereby providing adequate opportunity to defendant to cross-examine the
witnesses---Even if defendant in such a case, did not appear before banking
court or he was not granted leave, the banking court was not absolved of its
duty to apply its mind to the facts and circumstances of each case---Judgment
and decree passed by banking court was set aside and the case was remanded to
banking court for decision afresh---Appeal was allowed in circumstances.

Side Appellant : ZARAI TARAQIATI BANK LIMITED through Manager
Side Opponent : Syed FURRAKH HUSSAIN SHAH
---Ss.9 & 10---Specific Relief Act (I of 1877), Ss.42 & 54---Recovery of bank loan---
Declaratory suit---Procedure---Bank filed suit for recovery of bank loan in which
leave was granted to the borrower and the suit was dismissed---banking court ,
in suit for declaration , filed by borrower declined to grant leave to defend the
suit to bank and suit filed by borrower was decreed---Plea raised by bank was
that after acceptance of leave application of borrower, suit of bank could not
have been dismissed straightaway---Validity---Dismissal of suit filed by Bank,
after acceptance of borrower's leave application was in derogation of the
provisions of S.10 (10) of Financial Institutions (Recovery of Finances) Ordinance,
2001---banking court was obliged to decide borrower's leave application on its
own merits before embarking upon the issues involved in the suit---If banking
court was of the view that substantial questions of law and facts were raised by
borrower, leave to defend the suit could have been granted to him but in no way,
at that point of time, suit filed by bank could have been dismissed---banking
court did not adopt the procedure as prescribed in the statute and had gone
outside the scope of S.10 (10) of Financial Institutions (Recovery of Finances)
Ordinance, 2001---Even if banking court was persuaded to accept borrower's
leave application, the court , instead of straightaway dismissing bank's suit, in
obedience to the provisions of S.10 (10) of Financial Institutions (Recovery of
Finances) Ordinance, 2001, should have treated his leave application as written
statement, framed the issues, recorded the evidence and thereafter decided the
suit, in accordance with law---Judgment and decree passed by banking court
was set aside and the case was remanded to banking court for decision afresh in
accordance with law--Appeal was allowed in circumstances.

Side Appellant : HOUSE BUILDING FINANCE CORPORATION through
District/Branch Manager
Side Opponent : Mst. KHAIRAN Bibi
----S.9---Suit for declaration by borrower- window---Incentive Policy of House
Building Finance Corporation to remit loan of widows---Borrower's claim for
remission in pursuance of such policy---Non-consideration of borrower's
application by Corporation, rather initiation of recovery process against ,her---
Borrower's suit decreed by banking court finding that she had applied in
pursuance of such scheme and being a window was entitled to benefit thereof---
Plea of Corporation that no such application was made by borrower--Validity---
Mere such assertion of Corporation could not be given credence in presence of
specific assertion made in the plaint, evidence led by borrower and finding of
banking court believing her version---High court dismissed appeal in
circumstances.

Side Appellant : Messrs HABIB BANK LTD
Side Opponent : Messrs BELA AUTOMOTIVES LTD
--Ss.9(2) & 22---Law Reforms Ordinance (XII of 1972), S. 3---High court appeal---
Maintainability ---Bank had filed appeal against order whereby Single Judge of
High court while granting leave to defend suit filed by Company against Bank
for accounts, injunction, declaration and damages had framed issues---
Maintainability of said appeal was objected to on the ground that in terms of
S.22(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001 an appeal
could only be filed against a judgment, decree, sentence or a final order, passed
by a banking court and not against interim order---Single Judge, through
impugned order had merely granted to the appellant leave to appear and defend
suit and had framed issues for final adjudication of the suit---Said order passed
by Single Judge, could not be said a final order"---In view of provisions of S.22 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 which had placed a
clear bar on filing of an appeal against an interlocutory order which did not
dispose of entire case before banking court , appeal being not maintainable was
dismissed.
Citation Name : 2005 SCMR 318 SUPREME-Court

Side Appellant : ADAMJEE INSURANCE COMPANY LIMITED
Side Opponent : MUSLIM COMMERCIAL BANK LIMITED
--S. 178---banking Companies Ordinance (LVII of 1962) S.23--Insurance
Ordinance (XXXIX of 2000), S.67---Specific Relief Act (I of 1877), Ss.42 & 54---Civil
Procedure Code (V of 1908), O.XXXIX, Rr.l & 2---Constitution of Pakistan (1973),
Art.185(3)---Interim injunction, grant of---Election of Board of Directors---
Defendant-Bank having a share of 29.37 % in plaintiff-Company was not satisfied
with the management of plaintiff-Company---Defendant-Bank had been making
necessary declaration and other reports to Securities and Exchange Commission
of Pakistan and to State Bank of Pakistan as required by taw---Term of office of
the Directors. of plaintiff-Company had already expired but they continued to
occupy their office---Defendant-Bank had participated in meetings of plaintiff-
Company through its nominee without any protest by the plaintiff---Company
Judge, in suit filed by plaintiff, in exercise of original civil jurisdiction, passed
interim injunction restraining the defendants from exercising their rights to seek
election for them on the Board of Directors of the plaintiff-Company--High court
in exercise of appellate jurisdiction set aside the injunction order---Validity---
Balance of convenience would lie in holding elections of Directors of plaintiff-
Company as required by the provisions of 5.178 of Companies Ordinance,
1984---Plaintiff company was found to have sustained huge losses with the result
that it had to wind up its business in foreign countries---Defendants had validly
and lawfully acquired the shares and they could not be restrained from
exercising their voting and other rights as shareholders and from taking part in
the affairs of the plaintiff-Company---Defendant-Bank did not have controlling
interest in the plaintiff-Company and it did not have such shareholding which
could make it more powerful than all other shareholders, to control the course of
general meeting of plaintiff-Company---Judgment of High court .was just and
fair which did not suffer from any legal infirmity so as to warrant interference by
Supreme court ---Order passed by High court under its original jurisdiction did
not take the correct view of the matter and had resulted in usurpation of the
office of Directors of plaintiff-Company by such persons whose term had already
expired thereby depriving the shareholders to exercise their vested rights in
accordance with law---Plaintiff-Company had failed to make out a prima facie
case in its favour and was not able to satisfy the other essential ingredients such
as balance of convenience and irreparable loss so as to entitle them to grant of
temporary injunction---Leave to appeal was refused.
Citation Name : 2005 CLD 224 SUPREME-Court

Side Appellant : ADAMJEE INUSRANCE COMPANY LIMITED
----S.178---banking Companies Ordinance (LVII of 1962), S.23---Insurance
Ordinance (XXXIX of 2000), S. 67---Specific Relief Act (1 of 18771. Ss. 42 & 54---
Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitution of Pakistan
(1973), Art.185(3)---Interim injunction grant of---Election of Board of Directors---
Defendant-Bank having a share of 29.37% in plaintiff company was not satisfied
with the management of plaintiff company---Defendant-Bank had been making
necessary declaration and other reports to Securities and Exchange Commission
of Pakistan and to State Bank of Pakistan as required by law---Term of office of
the Directors of plaintiff company had already expired but they continued to
occupy their office---Defendant-Bank had participated in meetings of plaintiff
company through its nominee without any protest by the plaintiff company
Judge in suit filed by plaintiff in High court , in exercise of original civil
jurisdiction, passed interim injunction restraining the defendants from exercising
their rights to seek election for them on the Board of Directors of the plaintiff
company--High court in exercise of appellate jurisdiction set aside the injunction
order---Validity---Balance of convenience would lie in holding elections of
Directors of plaintiff company as required by the provisions of S.178 of
Companies Ordinance, 1984---Plaintiff company was found to have sustained
huge losses with the result that it had to wind up its business in foreign
countries---Defendants had validly and lawfully acquired the shares and they
could not be restrained from exercising their voting and other rights as share-
holders and from taking part in the affairs of the plaintiff company---Defendant-
Bank did not have controlling interest in the plaintiff company and it did not
have such share-holding which could make it more powerful than all other
share-holders, to control the course of general meeting of plaintiff company---
Judgment of High court was just and fair which did not suffer from any legal
infirmity so as to warrant interference by Supreme court ---Order passed by
High court under its original jurisdiction did not take the correct view of the
matter and had resulted in usurpation of the office of Directors of plaintiff
company by such persons whose term had already expired thereby depriving
the share-holders to exercise their vested rights in accordance with law---Plaintiff
company had failed to make out a prima facie case in its favour and was not able
to satisfy the other essential ingredients such as balance of convenience and
irreparable loss so as to entitle them to grant of temporary injunction---Leave to
appeal was refused.

Side Appellant : Haji MUHAMMAD KHADIM
Side Opponent : CITIBANK, N.A. through Branch Manager
---Ss. 9, 10, 15 & 22---Suit for recovery of loan---Leave to appear and defend
suit---Appellant, primarily aggrieved of action of Bank under S.15 of Financial
Institutions (Recovery of Finances) Ordinance, 2001 putting property of
appellant on sale, had instituted suit seeking declaration and in that suit Bank
filed leave application which was -allowed and preliminary issue with regard to
maintainability of suit was framed---banking court dilating on that, had rejected
plaint of appellant, primarily on ground that appellant had earlier filed a suit of
same nature in which relief of declaration sought in present matter was not
claimed though same was available to him at that time and that second suit was
barred under provisions of O.II, R.2, C.P.C.---Appellant had filed the present
appeal---Bank had contended that it had also filed a suit against appellant for
recovery of its dues and that Bank would not invoke and pursue provisions of
S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Appellant,
in such view of the matter had sought permission of court to withdraw the suit---
Said withdrawal was allowed and suit filed by appellant was dismissed as
withdrawn accordingly.

Side Appellant : ABDUL WAHAB
Side Opponent : AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN
through Chairman
--- Ss. 9 & 22---Civil Procedure Code (V of 1908), O. VII, R. 11---Rejection of
plaint---Appeal---Appellants/alleged borrowers had instituted a suit seeking a
declaration against the Bank to the effect that they had not taken any loan and
any entry in that regard in the Bank record was liable to be ignored as being
based on forgery and fraud---Plaint of appellants was rejected by the banking
court ---Validity---Plaint of the appellants, prima facie, did disclose a cause of
action, thus O.VII, R.11, C.P.C. could not have been applied to the same---
Rejection of plaint by the banking court could not be blessed with sanctity and
impugned judgment was set aside---Case was remanded to the banking court
for disposal according to law.

Side Appellant : Messrs ARSH MASROOR PAKISTAN (PVT.) LTD. through
Chief Executive
Side Opponent : Messrs ALLIED BANK OF PAKISTAN LIMITED through
Manager
----S.9---Specific Relief Act (I of 1877), S.42---declaration of title---Dismissal of
suit---Failure to give reasons---Pendency of suit for recovery of bank loan---
Borrower filed declaratory suit in banking court , prior to the suit filed by bank
against the borrower---banking court dismissed the suit of borrower on the
ground that he could seek any relief from the court where the suit for recovery of
bank loan was pending against him by way of submission of application for
grant of leave under S.10 of Financial Institutions (Recovery of Finances)
Ordinance, 2001---Validity---banking court had passed the judgment without
application of mind, therefore, the judgment passed by banking court in suit
filed by borrower was not sustainable in the eyes of law---Judgment and decree
passed against the borrower was set aside and the case was remanded to
banking court for decision afresh in accordance with law---Appeal was allowed
accordingly.

Side Appellant : ASKARI COMMERCIAL BANK LTD.
Side Opponent : SEHRISH TEXTILE MILLS LTD. through Chief Executive
--Ss.9 & 10---Recovery of bank loan---Leave to defend the suit, refusal of---
Passing of decree without recording of evidence---banking court did not grant
leave to defend the suit to defendant as no such application was filed---Suit was
straightaway decreed in favour of bank, without recording of evidence---
Validity---When the defendant failed to file the requisite application for grant of
leave to defend the suit within the prescribed period, banking court instead of
receiving written statement, should have called upon the Bank to prove its case
by producing evidence---Decree could not have been passed straightaway, as in
suit for declaration and permanent injunction, as claim of declaration could not
be equated with the suit founded on negotiable instruments---banking court
deviated froth the procedure provided under the statute, forgetting that banking
court being the creature of the statute was bound by the provisions of that
statute---Judgment and decree passed by banking court without recording of
evidence was set aside and the case was remanded to banking court for decision
afresh after recording of evidence produced by bank only---Appeal was allowed
accordingly.

Side Appellant : Messrs ABDUL SATTAR COTTON AND OIL INDUSTRIES
(PVT.) LTD.
Side Opponent : ALLIED BANK OF PAKISTAN through President
---S.9--Suit by borrower for declaration , rendition of accounts and permanent
injunction---Suit by Bank for recovery of loan amount---banking court through a
consolidated judgment decreed Bank's suit and in view of such decree dismissed
borrower's suit---Validity---Both such suits had never been consolidated---
banking court was bound to render separate findings, though in single
judgment, on each case separately---banking court while dismissing borrower's
suit in such manner without rendering indel3endent findings had committed
legal error---High court accepted appeal, set aside impugned judgment
regarding dismissal of borrower's suit, which would be deemed to be pending
before banking court for its decision in accordance with law.

Side Appellant : ABDUL SATTAR RANA
Side Opponent : MANAGER, NATIONAL BANK OF PAKISTAN
---Ss.9 & 10---Civil Procedure Code (V of 1908), O.XIV, R.2---Qanun-e-S ha had at
(10 of 1984), Art.133---Suit for declaration , permanent injunction and damages---
Leave application, non-filing of---Framing of preliminary issue qua
maintainability of suit on basis of objection raised in written statement by
Bank---Dismissal of suit as being non-maintainable in its present form---
Validity---Defendant, after service, would neither be entitled to defend suit nor
be permitted to submit written statement as of right, unless he obtained leave
from court to defend suit by filing leave application---Bank, in the present case
could file written statement only after obtaining leave to defend suit---Claim for
declaration could not he equated with suit based on a negotiable instrument---
On such failure of Bank, banking court instead of receiving written statement
from Bank, ought to have called upon plaintiff to produce evidence in support of
his claim as in such suit decree could not he passed straightaway---Issue of
maintainability of suit could not be decided without calling upon plaintiff to
produce evidence-Impugned judgment suffered from serious legal defects---
High court accepted appeal and set aside impugned judgment with directions to
banking court to decide suit afresh after calling upon plaintiff to produce
evidence in support of his claim and also providing opportunity to Bank to cross-
examine plaintiffs witnesses and raise objections regarding admissibility and
authenticity of documents, if any, produced by plaintiff ; but Bank, for its such
failure, would not be entitled to lead evidence or produce any document.

Side Appellant : ABDUL SATTAR RANA
Side Opponent : MANAGER, NATIONAL BANK OF PAKISTAN
---Ss.9 & 10---Qanun-e-Shahadat (10 of 1984), Art.133---Suit for declaration and
permanent injunction---Failure of defendant to file leave application and obtain
leave from court to defend suit-Effect-Decree in such suit could not be passed
straightaway as claim for declaration could not be equated with suit based on a
negotiable instrument---On such failure of defendant, banking court would be
obliged to decide such suit after calling upon plaintiff to produce evidence in
support of his claim---Defendant, for such failure, would not be entitled to lead
evidence or produce any document, but could cross-examine plaintiffs witnesses
and raise objections as to admissibility and authenticity of documents, if any,
produced by plaintiff---Principle illustrated.

Side Appellant : Messrs MALIK ISRAR SALIM & BROTHERS through
Proprietor
Side Opponent : ALLIED BANK OF PAKISTAN LTD.
---S.9---Civil Procedure Code (V of 1908), O.VII, R.11---Declaratory suit---
Rejection of plaint---Application for leave to appear and defend the suit, non-
deciding of---Borrowers filed suit for declaration alleging that the bank did not
disburse the amount as claimed by it---banking court without granting leave to
the bank, rejected plaint for the reason that it did not disclose any cause of
action---Validity---banking court had erroneously applied the provisions of
O.VII, R.11 C.P.C. and the order passed by banking court suffered from serious
infirmity, and the same could not be sustained, resultantly the same was set
aside---Matter .was remanded to banking court where the application of bank
for leave to appear and defend the suit would be deemed to be pending and the
banking court would decide such application---High court allowed that banking
court might also consider the question about maintainability of declaratory suit if
raised by the bank--Appeal was allowed accordingly.

Side Appellant : Malik MUHAMMAD YASIN AWAN
--S.7---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001),
S.5---Past and closed cases---declaration s made in the Chenab Cement Product
judgment neither to affect cases past and closed nor invalidate the
judgments/decrees, which had become final---Where, the decree passed by the
banking Tribunal was not challenged by way of instituting the appeal but was
called into question only through a Constitutional petition which was
subsequently disposed of, the decree passed by the banking Tribunal would be
considered to be past and closed case and final---When, however, the decree
passed by the banking Tribunal was challenged by way of instituting the appeal
and was also called into question through a Constitutional petition, where the
latter was subsequently disposed of, the decree passed by the banking Tribunal
would not be considered to be past and closed case and would thus be set
aside---Appellant's appeal was against the judgment and decree that was passed
before the judgment in Chenab Product's case, and the same was challenged
through filing of the appeal as well as Constitutional petition the decree under
appeal did not fall within the terms of past and closed cases' accordingly, the suit
for the recovery was to be deemed pending before the newly constituted
banking court , established under S.5 of Financial Institutions (Recovery of
Finances) Ordinance, 2001 to be decided afresh.

Side Appellant : AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN
through Manager
Side Opponent : BAKHSH
---S. 7 Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001),
S5--Past and closed cases-declaration s made in the case of Chenab Cement
Product (PLD 1996 Lah 672) was not to affect cases past and closed or invalidate
the judgments/decrees, which had become final--Where, however, the decree
passed by the banking Tribunal was not challenged in appeal but was called into
question only through a writ petition which was subsequently disposed of, the
decree passed by the banking Tribunal would be considered to be past and
closed case and final by virtue of the said judgment of Messrs Chenab Cement
Product-When the decree passed by the banking Tribunal was challenged in
appeal and also by a writ petition and the latter was subsequently disposed of,
the decree passed by the banking Tribunal would not be considered to be past
and closed case and would not be covered within the scope of the said judgment
and would thus be set aside---Held, as the judgment and decree under appeal
was passed after the rendering of the said judgment it did not fall within the
terms of `past and closed cases' nor within the meaning and scope of the
judgment in Chenab Cement Product---Decree was set aside anal suit for the
recovery was deemed pending before the newly constituted banking court ,
established under S.5 of Financial Institutions (Recovery of Finances) Ordinance,
2001 to be decided afresh.

Side Opponent : Mrs. NAJMA PERVEEN
----Ss. 9, 15 & 21---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration ,
injunction and rendition of accounts---Bank issued notice to borrower showing
his liability to tune of Rs.36,000---Borrower filed suit seeking declaration that no
such amount was payable to Bank--Bank filed fresh statement of accounts---
banking court decreed suit of Borrower and declared such notice illegal and
void---Contention of Bank was that according to terms of sanctioned letter
coupled with relevant clauses of agreement, statement of accounts prepared by
Bank was conclusive proof of liability of borrower---Validity---Such general
clause in a cyclostyled document by itself would not be a sufficient proof of
liability—
Citation Name : 2003 CLD 1419 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : Messrs HAQ TRADERS
----Ss. 7(6), 9 & 22---banking Companies (Recovery of Loans, Advances, Credits
and Finances) Act (XV of 1997), Ss.2(b), 5, 9 & 22---Constitution of Pakistan
(1973), Art.199--Constitutional petition---Suit for declaration and'settlement of
accounts by borrower against Bank---Jurisdiction of banking court ---Borrower
disputed his liability under finance agreements with Bank by filing suit before
banking court after dismissal of Constitutional petition by High court with
observations that his grievance being relatable to obligations of Bank under
terms and conditions of finance, could be adjudicated by banking court
---banking court dismissed suit for not having plenary powers of a Civil court to
deal with cases of ordinary civil jurisdiction either under banking Companies
(Recovery of Loans, Advances, Credits and Finances) Act, 1997 or Financial
Institutions (Recovery of Finances) Ordinance, 2001---Validity---banking court
without adverting to facts of the case, adhering to provisions of S.9 of Act, 1997
and S.7(6) of Ordinance, 2001 and attending to such order of High court ; had
dismissed suit on an unsustainable ground---High court accepted appeal, set
aside impugned judgment/decree being nullity in eye of law and remanded case
to banking court for its decision in accordance with law.

Side Appellant : Haji MUHAMMAD NAWAZ KHOKHAR
Side Opponent : UNITED BANK LIMITED, KARACHI
----S.2(c)(d) & (9)---Civil Procedure Code (V of 1908), O.VII, R.10---Suit for
declaration , injunction and damages---Return of plaint---Plaintiff sought decree
against Bank and its officials for recovery of damages for his personal malicious
prosecution/defamation, declaration against their acts and injunction to restrain
them from creating any demand against him by considering him
director/beneficiary or shareholder of borrower-company---Maintainability---
Suit for recovery on basis of finance/loan could be filed only by a banking
company against persons, who fell within definition of "customers" or
"borrowers"---Plaint and its prayer showed that plaintiffs cause of action against
Bank and its officials was in his personal capacity or as Director of company--
Capacity of Director or shareholder of a company could not be equated with
capacity of a person as surety, indemnifier or guarantor of company---Person
only in capacity of Director or shareholder of company would not fall within
definition of a "customer" or "borrower"---Plaintiff had not sued Bank and its
officials with regard to obligations arising out of finance---Suit did not arise out
of finance or advance by Bank to borrower-company---banking court had no
jurisdiction to entertain such suit---Plaint was returned for its presentation before
competent court .

Side Appellant : MUHAMMAD KHALID BUTT
Side Opponent : UNITED BANK LIMITED
----S. 10---Specific Relief Act (I of 1877), Ss.39 & 42---Civil Procedure Code (V of
1908), O.VII, R.11 ---Leave to defend the suit, grant of-Rejection of plaint filed by
borrower for cancellation of document and declaration ---Bank was granted
leave to defend the suit filed by the borrower---Issues were framed and the case
was fixed for evidence, when the Bank filed two suits for recovery of Bank
loans---Subject-matter of all the suits were the same documents---banking court
declined leave to defend the suit to the borrower and resultantly plaint filed by
the borrower was rejected under O.VII, R.11, C.P.C. while that filed by the Bank
were decreed---Contention of the borrower was that documents relied upon by
the Bank were subject-matter of the earlier suit and the controversy could not be
resolved without recording of evidence---Borrower further contended that his
plaint could not be rejected only for the reason that in the suits filed by the Bank,
leave to defend the suits was refused---Validity---In the earlier suit of the
borrower and the subsequent suits of the Bank, the subject-matter, and the issues
were directly and substantially the same---If the suit of the borrower was
decreed, the Bank's suits were bound to fail and vice versa---When leave had
been granted to the Bank in the first suit, on the principle of consistency and
comity and for the administration of justice, the borrower was also entitled to
leave to appear and defend---High court directed that in order to avoid
conflicting judgments, all the suits should be conducted and proceeded
simultaneously and decided together---banking court had wrongly rejected the
plaint of the borrower under OXII, R.ll, C.P.C. on the premises that the leave
applications of the borrower in the suits filed by the Bank had been refused---
Judgments and decrees passed by the banking court were set aside and the
borrower was allowed leave to defend in both the suits---Cases were remanded
to banking court accordingly.

Side Appellant : Malik SULTAN MEHMOOD
Side Opponent : SME BANK LTD.
----Ss.10 & 9(5)---Civil Procedure Code (V of 1908), O.VII, R.11---Application for
leave to defend the suit---Rejection of plaint by the banking court under O.VII,
R.11, C.P.C.--Plaintiff s had filed separate suits for declaration , mandatory
injunction and rendition of accounts before the banking court ---banking court ,
after presentation of the plaint, issued summons to the defendants as provided
under the law, in response thereto applications for leave to defend the suit were
filed by the defendants and those applications were adjourned for filing
replications and replies to the stay applications, which were submitted--Cases,
thereafter, were adjourned for hearing the arguments on the said applications,
which were addressed on the dates fixed and applications were adjourned for
the next date for announcement of the orders and on that date the plaints were
rejected---Validity---Held, from the very inception, the main suit was never fixed
for hearing and the entire proceedings were undertaken by the banking court on
the said applications for leave to defend the suit---Main suit having not been
fixed for hearing, banking court could not reject the plaint in circumstances
---High court set aside the judgments and decrees with no order as to costs
observing that suits shall be deemed to be pending before the banking court ,
who was directed to decide at the first instance, the applications for leave to
defend the suit and if leave to defend the suit was granted then of course, the
main suit would be decided by the Judge banking court in accordance with law.

Side Opponent : RAVI ENTERPRISES
Financial Institutions (Recovery of Finances) Ordinance 2001 --Ss. 9, 10 & 22---
Civil Procedure Code (V of 1908), O.XXXIX, R. 1---Specific Relief Act (I of 1877),
Ss. 42 & 55--Suit for rendition of accounts, declaration , damages and mandatory
injunction ---Plaintiff filed application for grant of mandatory injunction, when
application for leave to defend the suit filed by Bank was pending---banking
court on plaintiffs application directed Bank to deliver him title documents---
Validity---banking court after receipt of leave application was obliged under law
to have decided same as per provisions of S.10 of the Financial Institutions
(Recovery of Finances) Ordinance, 2001---Leave application had not been
decided after lapse of seven months, and for its tendency for such a long period,
no plausible justification was found on record---banking court before embarking
upon deciding application for grant of interim relief ought to have decided
application for leave to defend suit and thereafter to save proceeded to decide
suit including miscellaneous applications---Impugned order being perfunctory,
slipshod and devoid of reasons also necessitated remand of case--High court
accepted appeal and set aside impugned order, resultantly application for grant
of temporary injunction would be deemed pending before banking court , which
would in first instance decide application for leave to defend suit and would
then decide application for grant of temporary injunction.

Side Appellant : MUHAMMAD ASHRAF
Financial Institutions (Recovery of Finances) Ordinance 2001 ----Ss. 9, 17 & 22---
Specific Relief Act (I of 1877), S. 42---Suit for declaration by plaintiffs to
discharge liability of their deceased father under an incentive scheme issued by
Bank---Plaints on 30-11-2000 attempted to make payment of 20% of outstanding
amount, but same was not accepted by Bank---Plaintiffs then filed suit on 21-12-
2000 and court directed them to deposit entire amount as per terms of incentive
scheme on or before 31-12-2000, which was done accordingly---banking court
dismissed the suit on the ground that plaintiffs in order to qualify for the benefit
of incentive scheme, had not deposited sum of 20% within month of November,
2000---Validity---Plaintiffs had themselves made an attempt to make such
payment--Plaintiffs'bona fides were shown from the fact that they had paid
entire amount due under the scheme on 21-12-2000, which was well before its
expiry on 31-12-2000---Suit, in. circumstances, could not have been dismissed-
--High court accepted the appeal and set aside impugned judgment and decree.

Side Appellant : Sheikh NAZIR AHMED
Side Opponent : HOUSE BUILDING FINANCE CORPORATION
banking Companies (Recovery of Loans, Advances, Credits and Finances) Act
1997 ----Ss. 9(4), 10 & 21---Specific Relief Act (I of 1877), S. 42--Civil Procedure
Code (V of 1908), O.VII R. 11 ---Suit for rendition of accounts and declaration
---Rejection of plaint without deciding leave application---Plaintiff-customer
claimed to have adjusted financial facility well within time and thus, becoming
entitled to clearance certificate, but Bank was not issuing clearance certificate and
was demanding more amount from him---Bank filed application for leave to
defend the suit, which was replied by plaintiff--banking court instead of
deciding leave application while relying upon statement of accounts filed by
Bank rejected the plaint for not disclosing any cause of action ---Validity--
Rejection of plaint without deciding leave application was against the provisions
of law---Defendant as a matter of right could not defend the suit unless upon
filing of proper application as provided under S. 9(4) read with S. 10 of the Act,
banking court granted leave to defend the suit to such defendant---banking
court without deciding leave application was not empowered to call upon
defendant to defend suit, muchless on filing of statement of accounts to reject the
plaint---banking court had completely travelled beyond the scope and
provisions of special statute i.e. banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act, 1997---court in order to reject a plaint had
to take into account only the contents of plaint and defence pleas raised by
defendant could not be considered for such purpose---Plaint disclosed a cause of
action as averments contained therein were supported by photo copies of
voluminous receipts showing that plaintiff had faithfully paid the amount in
instalments---Present case did not fall under any of the clauses of O. VII, R. 11,
C.P.C.---Impugned judgment suffered from grave legal infirmity as having been
passed in complete oblivion of the express provisions of law---High court
accepted appeal, set aside impugned judgment/ decree, and remanded the case
for its fresh decision with, observations that leave application would be deemed
to be pending before banking court , which would firstly decide such application
and then would proceed to decide the suit after hearing the parties in accordance
with law.

Side Appellant : PERVEZ AHMAD KHAN BURKI, ADVOCATE
Side Opponent : UNITED BANK LIMITED
banking Tribunals Ordinance 1984 ----S.6---Financial Institutions (Recovery
Finances) Ordinance (JAW of 2001), S.7(4)(6)---Civil Procedure Code (V of 1908),
S.9 & O.VII, R.11---Specific Relief Act (I of 1877), Ss. 42 &. 54---Bank fled suit for
recovery of money against petitioner and company before banking Tribunal---
Petitioner thereafter filed in Civil court suit for declaration and injunction that he
never stood guarantee in the matter of loan provided by Bank to the company---
Trial court rejected the petitioner's plaint holding that the matter was related to
jurisdiction of banking Tribunal-----Appellate court upheld such order--
Validity---banking Tribunal no longer existed and the matters were being dealt
with by banking court s and the law covering the jurisdiction of such court s
provided for filing of suit by company as well as the customer or borrower---
High court disposed of revision petition with a direction that file of the case,
which otherwise automatically stood transferred to banking court , would be
sent to banking court , where the same would be taken up alongwith the suit
fled by respondent-Bank, and the question as to whether or not petitioner had
executed a valid guarantee or had otherwise guaranteed repayment of loan,
would be decided by banking court .
Citation Name : 2002 YLR 2227 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MEHMOOD-UL-HASSAN BABAR KHAN
Side Opponent : LIAQAT ALI KARIM
----S. 14(i)(j)---Punjab Local Government Elections Rules, 2000, R.76(1)---
Constitution of Pakistan (1973), Arts.62(d) & 199--Constitutional petition
---Election---Concealing of assets---Character of candidate ---Non framing of
issues by Election Tribunal--Allegation against returned candidate was that at
the time of filing of nomination papers, the candidate had concealed his assets in
Form XIX which were in shape of share certificates of a company---Returned
candidate asserted that the total assets of the company had already been attached
during execution proceedings of judgment and decree passed by banking court ,
therefore, the value of shares was nil or minus---Election Tribunal recorded
evidence and allowed election petition; resultantly the election was set aside---
Plea of the returned candidate was that the Election Tribunal did not frame any
issue and the candidate was prejudiced due to such non framing of issues---
Validity---In spite of non framing of issues, the returned candidate tried to
dislodge the allegation by producing all oral as well as documentary evidence,
therefore, he had not been prejudiced in any manner by non framing of issue by
the Election Tribunal; even otherwise framing of issues was not mandatory
---Non framing of issues was not sufficient to set aside judgment even passed in
a civil suit, where framing of issues was mandatory--Candidate, in the present
case, had not been prejudiced in any manner---Election Tribunal had rightly
found that the returned candidate had concealed and has not denied the
omission on his part by not declaring his assets i. e. shares certificates in Form
XIX---Candidate himself could not sit as a judge of his own cause for
determining value of share certificates to be nil or minus, when the procedure
was open for winding up of the company under 5.402 of the Companies
Ordinance, 1984---Election Tribunal had rightly found that non-declaration of
huge quantity of shares of the company was a deception and was not a symbol of
good character---High court declined to interfere with the order passed by the
Election Tribunal---Petition was dismissed in circumstances.
Citation Name : 2002 CLC 1889 KARACHI-HIGH-COURT-SINDH

Side Appellant : AVARI HOTELS LIMITED
Side Opponent : INVESTMENT CORPORATION OF PAKISTAN
Specific Relief Act 1877 ----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss.151,
152, 153, O.I, Rr.6, 10 & O.XXIII, R.3---Contract Act (IX of 1872), S.43---Suit for
declaration and permanent injunction ---Joinder of party liable on same
contract---Disposal of suit in terms of compromise without deciding the
application of proposed co-plaintiff made under O.I, R.10, C.P.C. seeking his
joinder as such being liable under such compromise validity ---Proposed co-
plaintiff was not privy to contract of finance and restructuring, out of which suit
filed by plaintiff against defendants-Bank had arisen---Dispute was
compromised between defendants as one party and plaintiff and proposed co-
plaintiff as other party through compromise deed, whereunder proposed co-
plaintiff had assumed pendent lite certain rights and obligations vis-A-vis the
defendants, on the basis of which the suit was decreed---Proposed co-plaintiff
being co-compromisor in compromise deed had covenanted to discharge the
liability of plaintiff in terms thereof---Interest of all the defendants who are
banking companies and financial institutions would be seriously affected and
jeopardized in absence of proposed co-plaintiff/co-compromisor---Addition of
proposed co-plaintiff would not cause prejudice to any party, rather same would
protect the rights and interest of all the parties ---Co-plaintiff, if not necessary
party, had become proper party to the proceedings---Decree had not yet been
prepared---Order I, R.10, C.P.C. envisaged addition or substitution of a party at
any stage of suit---High court accepted the application while observing that suit
would be deemed to have been disposed of in presence of and after joinder of
proposed co plaintiff.
Citation Name : 2001 MLD 1537 LAHORE-HIGH-COURT-LAHORE

Side Appellant : IQTEDAR HYDER
Side Opponent : BANK OF PUNJAB
banking Companies (Recovery of Loans, Advances, Credits and Finances)
Ordinance 1997 ----S. 15---Constitution of Pakistan (1973), Arts. 199 & 203-G--
Constitutional petition--Vires of S.15 of banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act, 1997---Seeking of declaration that the Act
was against Injunctions of Islam---Jurisdiction of High court --Validity---High
court , by virtue of Art. 203-G of the Constitution, had no jurisdiction to declare
the provision against Injunctions of Islam.
Citation Name : 2001 CLC 171 LAHORE-HIGH-COURT-LAHORE

Side Appellant : CITIBANK N.A.
Side Opponent : JUDGE, BANKING COURT-IV
1997 S. 42---Qunan-e-Shahadat (10 of 1984), Art.85(5)---Suit for declaration
--Defendants who were cousins of plaintiff and were cultivating his land, on
basis of forged and fabricated agreement to sell and power of attorney in
collusion with another defendant got land owned by plaintiff mutated in their
favour in absence of plaintiff---Plaintiff in his suit denied execution of agreement
of sale in favour of defendants and execution of power of attorney in favour of
other defendant and sought declaration that said documents be declared to be
illegal and void and that plaintiff was owner of land in dispute and had not sold
land to the defendants---Suit was decreed by Trial court , but on filing appeal
Appellate court dismissed the suit---Validity---Power of attorney on basis of
which land of plaintiff was got mutated in names of defendants and execution of
which was denied by plaintiff, was not even produced on record and no
explanation for the omission, was given by defendants---Defendants had claimed
that power of attorney being registered one was a public document and its
certified copy was admissible in evidence--Contention was repelled because
under Art.85(5) of Qanun-e-Shahadat, 1984 only such registered document could
be a public document, execution whereof was not disputed, whereas plaintiff
had totally denied the execution of the power of attorney---No evidence
whatsoever had been led by defendants to prove proceedings of mutation---
Appellate court below was not justified to hold that since mutation stood
incorporated in Revenue Record same enjoyed a presumption of correctness and
need not be proved--If mutation was incorporated in Revenue Record,
defendants claiming benefit thereunder were not absolved of their obligation to
prove the same as a fact---Judgment and decree passed by Appellate court being
not based on any evidence and having been passed in. exercise of jurisdiction not
vesting in it, could not sustain---High court set aside judgment of Appellate
court and restored the judgment and decree of Trial court in circumstances.
Citation Name : 2001 YLR 2259 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUHAMMAD HUSSAIN
Side Opponent : MUHAMMAD AFSAR
banking Companies Ordinance 1962 ----S.41---Civil Procedure Code (V of 1908),
S.11 & O. VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Res judicata---
Proof--Suit for declaration and perpetual injunction---Maintainability---Suit was
sought to be dismissed on the ground that Constitutional petition earlier filed by
the plaintiff alongwith others for the same relief and on the same cause of action
having been dismissed, suit filed by the plaintiff on the same cause of action was
barred under S.11 of C. P. C. being hit by principles of res judicata---In dismissal
order of earlier Constitutional petition the main ground was non-inclination of
the High court to enter into factual controversies as partially displayed in said
petition and the rights and liabilities of the parties as contemplated in the
relevant section of the banking Companies Ordinance, 1962 including S.41
thereof were not adjudicated by the High court in said petition and mere certain
observations were given therein---Said observations by no stretch of imagination
could amount to adjudicate the rights and liabilities of the parties in terms of
S.11, C. P. C.
Citation Name : 2001 YLR 2259 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUHAMMAD HUSSAIN
Side Opponent : MUHAMMAD AFSAR
Civil Procedure Code --Order VII of C.P.C. Plaint ----S.41---Civil Procedure Code
(V of 1908), S.11 & O. VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Res
judicata---Proof--Suit for declaration and perpetual injunction---
Maintainability---Suit was sought to be dismissed on the ground that
Constitutional petition earlier filed by the plaintiff alongwith others for the same
relief and on the same cause of action having been dismissed, suit filed by the
plaintiff on the same cause of action was barred under S.11 of C. P. C. being hit
by principles of res judicata---In dismissal order of earlier Constitutional petition
the main ground was non-inclination of the High court to enter into factual
controversies as partially displayed in said petition and the rights and liabilities
of the parties as contemplated in the relevant section of the banking Companies
Ordinance, 1962 including S.41 thereof were not adjudicated by the High court in
said petition and mere certain observations were given therein---Said
observations by no stretch of imagination could amount to adjudicate the rights
and liabilities of the parties in terms of S.11, C. P. C.

Side Appellant : BANKERS EQUITY LTD.
Side Opponent : KHANPUR SUGAR MILLS
1997 S. 9---Specific Relief Act (I of 1877), Ss. 10, 42 & 55---Civil Procedure Code (V
of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration , mandatory injunction and
recovery of amount---Plaintiffs alongwith plaint had filed application seeking
interim injunction against Bank restraining it from sending the names of
plaintiff-company and its Directors to the State Bank of Pakistan as defaulters---
Amount claimed by defendant-Bank had not finally been determined or
adjudicated by the competent banking court --Apprehension of the plaintiffs
that the mark-up had been wrongly and maliciously calculated and that huge
penalties had been imposed, could not be ruled out as the amount the plaintiffs
were liable to pay was yet to be determined by a competent banking court
---Before adopting coercive methods in order to recover statutory dues, there
should be a well-ascertained and determined sum of money---Efforts of the
Banks and the State Bank of Pakistan should be to recover the stuck up loans, but
at the same time some efforts should be adopted for recovery of outstanding
loans from a non-wilful defaulter without destroying the company which had
obtained such loan--Defendant-Bank before forwarding the name of the plaintiff
as defaulter to the State Bank of Pakistan should consider all such facts as well as
all the circulars of the State Bank of Pakistan issued from time to time.

Side Appellant : HUFFAZ SEAMLESS. PIPE INDUSTRIES LTD., KARACHI
Side Opponent : ALLIED BANK OF PAKISTAN LIMITED, KARACHI
Specific Relief Act 1877 S. 9---Specific Relief Act (I of 1877), Ss. 10, 42 & 55---Civil
Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration ,
mandatory injunction and recovery of amount---Plaintiffs alongwith plaint had
filed application seeking interim injunction against Bank restraining it from
sending the names of plaintiff-company and its Directors to the State Bank of
Pakistan as defaulters---Amount claimed by defendant-Bank had not finally been
determined or adjudicated by the competent banking court --Apprehension of
the plaintiffs that the mark-up had been wrongly and maliciously calculated and
that huge penalties had been imposed, could not be ruled out as the amount the
plaintiffs were liable to pay was yet to be determined by a competent banking
court ---Before adopting coercive methods in order to recover statutory dues,
there should be a well-ascertained and determined sum of money---Efforts of the
Banks and the State Bank of Pakistan should be to recover the stuck up loans, but
at the same time some efforts should be adopted for recovery of outstanding
loans from a non-wilful defaulter without destroying the company which had
obtained such loan--Defendant-Bank before forwarding the name of the plaintiff
as defaulter to the State Bank of Pakistan should consider all such facts as well as
all the circulars of the State Bank of Pakistan issued from time to time.

Side Appellant : PARVEEN JAFFAR
Side Opponent : BANKER EQUITY LTD.
Specific Relief Act 1877 ----S. 42---banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act (XV of 1997), Ss. 5 & 7---Suit for declaration
and mandatory injunction in respect of property in question, whereby plaintiff
having deposited title deed of her property as personal guarantee was seeking
her entitlement to return of those title-deeds---Defendant (Bank) raising objection
that amount in question being within jurisdiction of banking Tribunal,
jurisdiction of High court was barred where amount in question was less than
rupees three million--Law relating to banking Companies (Recovery of Loans,
Advances, Credits and Finances) Act, 1997 was so widely worded that same
would include all possible transactions pertaining to banking business---
Provision of banking Companies (Recovery of Loans, Advances, Credits and
Finances) Act, 1997, would bar all court s except banking court to exercise any
jurisdiction with respect to any matters as provided in the Act; provisions of the
Act would also exclude jurisdiction of Civil court s from taking decision as to
existence or otherwise of loan or finance and execution of decree passed by
banking court ---While in terms of S.7 of the Act, banking Company was
entitled to invoke jurisdiction of any court for any remedy which might be
available under the law, no such right was extended to customers, borrowers,
surety or any indemnifier ---Plaintiff's suit being within jurisdiction of banking
Tribunal was transferred to the same for adjudication.
Citation Name : 1997 PLD 72 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : QAYYUM NAWAZ KHAN
Side Opponent : REGIONAL MANAGER. AGRICULTURAL DEVELOPMENT
BANK OF PAKISTAN DERA ISMAIL KHAN
Civil Procedure Code --Order VII of C.P.C. Plaint 0. VII, R.10---banking
Companies (Recovery of Loans) Ordinance (XIX of 1979), S.5---Return of plaint---
Plaintiffs in their suit for declaration challenged legal notice issued to them by
defendant-Bank with regard to payment of allegedly outstanding amount---
Plaintiff in their suit had also claimed that they were entitled to recovery of
damages for defamation and also cost for compensation of mental torture and
agony---Civil court after hearing parties returned suit to plaintiffs to present in
proper forum on ground that matter between parties having arisen out of loan,
Special court constituted under S.5 of banking Companies (Recovery of Loans)
Ordinance, 1979 had jurisdiction to deal with dispute between parties and that
Civil court had no jurisdiction in the matter---Civil court despite returning plaint
due to lack of jurisdiction, entertained suit with regard to relief claimed by
plaintiffs for compensation for defamation on ground that Civil court had got
jurisdiction and court directed plaintiffs to amend their plaint to that extent---
Dispute between parties being related to recovery of advance by defendant-
Bank, Civil court rightly returned plaint under O.VII, R.10, C.P.C. for
presentation before Special court constituted under S.5 of banking Companies
(Recovery of Loans) Ordinance. 1979---Civil court had no jurisdiction to entertain
suit with regard to damages which was an off-shoot of main suit for declaration
which had been returned for presentation before proper forum---Order of Civil
court with regard to finding that it had got jurisdiction in respect of relief for
compensation for defamation and permission for consequential amendment in
plaint, was set aside and Civil court was directed to return plaint in toto for
presentation before proper forum.
Citation Name : 1997 PLD 208 KARACHI-HIGH-COURT-SINDH
Side Appellant : NAYA DAUR MOTORS (PVT.) LTD.
Side Opponent : PAKSITAN BANKING COUNCI
banking Tribunals Ordinance 1984 Ss. 9 & 10---Specific Relief Act (I of 1877),
S.42---Suit for declaration and possession---Maintainability---Incidental order
passed by banking Tribunal---No remedy of appeal having been provided
against incidental order, remedy of revision, even if available, was too limited
and same was always discretionary with High court to admit such revision---
Availability of remedy by way of revision, however, would not in any way bar
maintainability of suit for declaration and injunction.
Citation Name : 1997 PLD 208 KARACHI-HIGH-COURT-SINDH

Side Appellant : NAYA DAUR MOTORS (PVT.) LTD.
Side Opponent : PAKSITAN BANKING COUNCI
Specific Relief Act 1877 Ss. 9 & 10---Specific Relief Act (I of 1877), S.42---Suit for
declaration and possession---Maintainability---Incidental order passed by
banking Tribunal---No remedy of appeal having been provided against
incidental order, remedy of revision, even if available, was too limited and same
was always discretionary with High court to admit such revision---Availability
of remedy by way of revision, however, would not in any way bar
maintainability of suit for declaration and injunction.
Citation Name : 1996 PLD 672 LAHORE-HIGH-COURT-LAHORE

Side Appellant : CHENAB CEMENT PRODUCTS
Side Opponent : BANKING TRIBUNA
banking Tribunals Ordinance 1984 Ss. 4, 6(6) [as amended by Finance Act (VII of
1990) and S. 9, first proviso] --- Constitution of Pakistan (1973), Art. 175 read with
Arts.2A, 4, 8 & 25 --- Provision of SsA, 6(6) as amended by Finance Act, 1990 (as
it presently stands) first proviso to S.9 of the banking Tribunals Ordinance, 1984
are unconstitutional as these erode the independence of judiciary and are hit by
Art. 175 read with Arts. 2A, 4, 8 & 25 of the Constitution --- Notifications
appointing Presiding Officers of the banking Tribunals issued under the
banking Tribunals Ordinance, 1984 are equally unconstitutional and without
lawful authority --- High court , while making the declaration and quashing the
notifications appointing Presiding Officers of the banking Tribunals laid down
the procedure to be adopted in consequence of the judgment of the High court .
Citation Name : 1996 PLD 672 LAHORE-HIGH-COURT-LAHORE

Side Appellant : CHENAB CEMENT PRODUCTS
Side Opponent : BANKING TRIBUNA
Constitution of Pakistan 1973 Ss. 4, 6(6) [as amended by Finance Act (VII of 1990)
and S. 9, first proviso] --- Constitution of Pakistan (1973), Art. 175 read with
Arts.2A, 4, 8 & 25 --- Provision of Ss4, 6(6) as amended by Finance Act, 1990 (as it
presently stands) first proviso to S.9 of the banking Tribunals Ordinance, 1984
are unconstitutional as these erode the independence of judiciary and are hit by
Art. 175 read with Arts. 2A, 4, 8 & 25 of the Constitution --- Notifications
appointing Presiding Officers of the banking Tribunals issued under the
banking Tribunals Ordinance, 1984 are equally unconstitutional and without
lawful authority --- High court , while making the declaration and quashing the
notifications appointing Presiding Officers of the banking Tribunals laid down
the procedure to be adopted in consequence of the judgment of the High court .
Citation Name : 1994 SCMR 1970 SUPREME-Court

Side Appellant : KAMRAN INDUSTRY (PVT.) LTD.
Side Opponent : INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN
banking Companies (Recovery of Loans) Ordinance 1979 -----S. 6(4)---Civil
Procedure Code (V of 1908), O.VII, R. 11---Constitution of Pakistan (1973), Art.
185(3)---Rejection of plaint for showing no cause of action---Bar of jurisdiction of
Civil court ---Plaintiff in his suit filed before Civil Judge had sought declaration
to the effect that loan agreement with respondent (Bank) was illegal, ultra vires
and was the result of undue influence and ineffective---Trial court rejected plaint
on the ground that same showed no cause of action---Ground taken by Trial
court for rejection of plaint was not valid---Provision of S. 6(4), banking
Companies (Recovery of Loans) Ordinance, 1979, ousts jurisdiction of all the
courts in respect of matters which are within jurisdiction of courts established
under the Ordinance ---Subject-matter of suit falling within the exclusive
jurisdiction of courts established under the banking Companies (Recovery of
Loans) Ordinance, 1979 plaint was liable to be rejected under cl. (d) of O.VII, R.
11, C.P.C., which provides that plaint would be rejected where suit appears from
the statement in the plaint to be barred by any law---Leave to appeal was, thus,
refused in circumstances.
Citation Name : 1989 MLD 4288 KARACHI-HIGH-COURT-SINDH

Side Appellant : AIM INTERNATIONAL: IN RE
Side Opponent : AIM INTERNATIONAL: IN RE
banking Companies Ordinance 1962 ---Ss. 27(1) & 43-B--Petitioner after
complying with all the requirements of the Ordinance issued declaration to the
effect that the firm had contravened the provisions of S. 27 (1) of the Ordinance--
Such declaration was duly published in terms of S. 43-B(2) in the daily
newspapers--Case was not contested by the firm-Orders for winding up of the
firm as unregistered company and appointment of an Official liquidator were
passed by the High court in circumstances.
Citation Name : 1987 MLD 549 KARACHI-HIGH-COURT-SINDH

Side Appellant : THE INSTITUTE OF BANKERS IN PAKISTAN
Side Opponent : ZAINUL ABEDIN
Educational Institutions ---banking Diploma Examination--- Candidate declared
successful it examination--Such declaration subsequently cancelled on grounds
of concealment of material facts in Entry Form of examination and for using
unfair means in a paper by such candidate--Bifurcation of charges at appellate
stage whether possible--At the trial emphasis was laid on the fact that examinee
had used unfair means--Admitted position being that he was not afforded fair
opportunity, which resulted in setting aside order of cancellation of result--If
examining body had confined itself to consideration of concealment of material
fact in Entry Form, the candidate could have been debarred from future
examinations--Two charges, one of using unfair means at the examination and
the other of concealment of material facts in Entry Form, held, could not be
bifurcated at appellate stage before High court --Overall conclusion had to be
considered in the light of evidence on record.

Side Appellant : KARACHI PROPERTIES INVESTMENT CO.
Side Opponent : GOVERNMENT OF PAKISTAN
Specific Relief Act 1877 Ss. 19, 42 & 56--Civil Procedure Code (V of 1908), 0. VII,
r.11-Martial Law Order, 1985 [ C . M . L . A .'s ] No. 105, para. 11--Suit for
declaration , injunction and recovery of damages--Application for rejection of
plaint in view of bar of jurisdiction--Effect--Bar of jurisdiction of court s
including High court s and Supreme court being absolute against Government
and banking Institutions in relation to provision of credit facilities, scope of para.
11 of M.L.R. No. 105, held, would be wide and all embracing--Claim of damages
being akin and ancilliary to subject matter barred by M.L.R. No. 105, same could
not be claimed--Suit for declaration , injunctions and damages would stand
abated in view of bar contained in para. 11 of M.L.R. No. 105--[Jurisdiction].

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