1. ' Permission has been sought for by Mr. Waseem Sajjad, Advocate to amend the title of the petition in order to implead the Bank branch of respondent No,2 operating at Quetta. Request is allowed.
2. Title may be amended as requested for in his own hand and under initial.
3. ' Mr. Nafees Siddiqui, Advocate has filed counter-affidavit. Copy of the same has been supplied to the petitioner's learned counsel. Preliminary submissions of the learned counsel for the parties as well as the learned D.A.-G. Have been heard.
4. ' Inter alia it is contended by Mr. Waseem Sajjad learned counsel for the petitioner that provisions of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance XLVII of 2001) amounts to the establishing of a parallel judicial system which is not envisaged by any norms and canons of existing judicature in the country as well as offends and contrary to the provisions of Articles 4, 23 Sand 25 of the Constitution of Islamic Republic of Pakistan as no other forum, authority or organization whether be a statutory or otherwise can be authorized or is competent to itself without hearing the concerned or aggrieved party adjudicate upon a determine liability for and against any party without the intervention of the Court and such being the provisions of section 15 of the Ordinance are liable to be struck down. He further submitted that as regards the liability intended to be enforced against the petitioner by sale of mortgaged properties without intervention of the Court cannot be recognized by any norms of law and justice in the 21st century in a civic society and the written Constitution and the law which always is subject, being a subordinate legislation to the provision of Constitution, but in the instant case after service of impugned notices the properties are intended to be put to auction although; unless claim is admitted by the petitioner, are to be proved in accordance with law including questions of facts arising out of the transaction need be adjudicated upon which in the instant case are absolutely lacking. He further submitted by referring to the contents of the replies sent to the respondent No,1 that, in fact, the liability as claimed stands repudiated unless legally proved in a Court of law and in the forum created under the special law, i.e., Ordinance No,XLVII/2001.
5. Furthermore, learned counsel referring to the dictum of the honourable apex Court laid down in Mehram Ali's case reported in PLD 1998 SC 1445 argued that provisions of section 15 of the Ordinance in view of the scheme of law as envisaged and reflected by the provisions of sections 14 and 19 of the Ordinance, unbridled absolute powers cannot be conferred by any provision of statute in favour of any organization or authority to unilaterally determine liability etc. Of a party and to itself independently without intervention of the Court enforce it by selling property of the mortgagor and to acquire such rights in its favour without intervention of the Court. Hence the provisions to the extent of creating a parallel judicial system are liable to be struck down.
6. ' Also the learned counsel submitted that since vires of the provisions of law have been challenged being in violation of the provisions of Articles 4, 23, 25 and 175 of the Constitution, therefore, this Court has the territorial jurisdiction to determine such question, and secondly the branch of the bank is functional and operating at Quetta and the claim intended to be enforced against the petitioner also contains amounts advanced at times and various transactions were made at Quetta. Moreover, notices were served on the petitioner in District Jail, Quetta, hence keeping all these factors in view this Court has the territorial jurisdiction and particularly where the vires of the law has been challenged, to entertain the petition. To supplement his contention on the point the learned counsel made reference to the reported judgments, i.e. 1996 CLC 539; 1995 CLC 1027 and 1985 SCM R 758.
7. ' Learned D.A.-G. Submitted that copies of the agreements undisputedly executed between the parties in respect of the financial facility advanced to the petitioner have not been filed with the Constitutional petition as it appears from the contents of the impugned notices, as well as; the written response given by the petitioner shows that such documents were executed which unequivocally and expressly provide that it was agreed between the parties that the respondent- Bank shall have the authority to enforce and recover the amount claimed from the petitioner without intervention of the Court including sale of mortgaged properties. According to learned D.A.- G. The provisions as contained in section 15 of the Ordinance if compared to the provisions of other laws such as: Transfer of Property Act, section 69, Agricultural Development Bank Ordinance, Income Tax Ordinance and Ushr Ordinance, it would become absolutely clear that all these laws and certain other enactments as well contain similar provisions wherein recoveries of the liabilities outstanding against the defaulter can be independently enforced without intervention of the Court and, therefore, provisions of section 15 of the Ordinance cannot be even prima facie held to be inconsistent or in violation of the provisions of the' Articles of the Constitution referred to by the petitioner's learned counsel. According to learned D.A.-G. Mehram Ali's case cited by the petitioner's learned counsel would not be relevant on the subject as it pertains to a criminal matter.
8. ' Mr. Nafees Siddiqui learned counsel for the respondent-Bank contended that the Constitutional petition is not maintainable in view of the provisions as contained in Article 199 of the Constitution and for the reason that Constitutional jurisdiction of the Court can be invoked only where no other alternate, efficacious remedy is provided under any other law for the time being in force whereas; in the instant case by referring to the provision 9 of the Ordinance, he argued that in case the petitioner feels aggrieved of the liabilities being enforced against him without intervention of the Court, he can approach for the redressal of his stated grievances to the Court of learned Judge Banking Court and particularly for the reason that such questions cannot be determined in writ jurisdiction and to substantiate his viewpoint the referred to the prayer clause of this petition.
9. Secondly; he also relied upon the contentions put forth by the learned D.A.-G. And thirdly he contended that this Court has no territorial jurisdiction to entertain the Constitution petition on the ground that all the mortgaged properties intended to be put to auctions for recovery of outstanding amount are situated in Province of Sindh, i.e. Beyond the territorial limits of the Province of Balochistan and no transaction in whatever form and nature respecting finance facility was advanced at Quetta or in this Province and the entire transaction rested with the respondent- Bank at Karachi and; mere service of notice impugned in this Constitutional petition on the petitioner confined in District Jail, Quetta will not confer jurisdiction on this Court to entertain this Constitutional petition.
10. ' At this stage Mr. Waseem Sajjad learned counsel for the petitioner placed on record two temporary statements of accounts in the name of Kech Floor Mill issued by Quetta Branch of respondent-Bank and in view of these documents, the learned counsel submitted that partial transaction in respect of the finance facility was made at Branch of the Bank at Quetta.
11. Controverting these documents Mr. Nafees Siddiqui submitted that these do not relate to the transaction in question. He also referred to circular of the State Bank of Pakistan providing new guidelines on the subject.
12. ' Having considered the submissions noted above put forth on behalf of the parties as well as by the learned D.A.-G. We are inclined to examine as to whether the provisions of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are ultra vires of the Constitutional provisions of Articles 18, 23, 25 and 175 of the Constitution of Islamic Republic of Pakistan.
13. ' Admit subject to the maintainability and competency of this Constitutional petition as regards the territorial jurisdiction is concerned.
14. ' Civil Miscellaneous No,1287 of 2003; heard the learned counsel for the parties. Mr. Waseem Sajjad contended that entire claimed liability and the amount of financial facility advanced to the petitioner stands fully secured by virtue of the mortgaged properties intended to be sold in open auction by the respondent-Bank for the recovery of the alleged outstanding amount. On the other hand learned counsel for the respondent-Bank submitted that an amount of Rs.1.2 billion inclusive of mark-up and cost of funds stands outstanding against the petitioner, whereas; the principal amount of the finance facility is about Rs.800 million (Rs.80 crore) which even does not stand fully secured as the entire value of the mortgaged properties as per valuation of such properties assessed at the relevant time does not exceed Rs.30 crore. Petitioner's learned counsel submitted that through this miscellaneous application operation of the impugned notices have been requested to be suspended as being ultra vires. Secondly on being enquired as to the liability owned or admitted by the petitioner to be discharged in favour of the respondent-Bank, the learned counsel submitted that he has not been instructed in such behalf nor he is in a position to say as to whether the petitioner is liable for any amount in respect of the transaction or o t herwise.
15. ' Having considered the submissions put forth on behalf of the parties learned counsel and gone through the documents relevant on the subject, we; are inclined to suspend operation of the impugned notices subject to furnishing solvent surety of Rs.500 million to the satisfaction of the Registrar of this Court out of the principal amount of finance facility statedly advanced to the petitioner, i.e. Rs.800 million (deducting assessed value of the mortgaged properties) as well as the petitioner to regularly deposit rents of the mortgaged properties with the Registrar of the Court till decision of this Constitutional petition.
16. ' Application stands disposed of accordingly.
17. ' Requisite sureties as above directed be furnished within a period of two weeks.
18. ' Office to fix this case after one month.