' MIAN HAMID FAROOQ, J.---This single judgment shall decide the present appeal (R.F.A. No,218 of 1995) and the connected appeal (R.F.A. No,383 of 1995), as common questions of law and facts are involved in both the appeals and they have arisen out of a single judgment.
2. Through the filing Of this appeal (R.F.A. No,218 of 1995) United Bank Limited has partially called in question judgment and decree dated 6-7-1995, whereby the learned Banking Tribunal, although passed a decree for the recovery of Rs,5,94,291.15 against the respondents, yet declined to award the rest of the claims of the bank and the portion of the judgment, rejecting the claims of the bank, prompted them to file the appeal. In response to the said appeal, respondents Nos,1 to 4 filed the cross-objections under Order XLI, rule 22, C.P.C. To the said judgment and decree, which were subsequently, registered as an appeal bearing.R.F.A. No,383 of 1995.
3. The facts leading to the filing of both the appeals are that. On 14-6-1988, United Bank Limited instituted a suit for recovery of Rs,27,57,580 against the responder ts by sale of mortgaged property and hypothecated stocks. According to the bank, the respondents were allowed two financial facilities, out of which first facility amounting to Rs,10,30,000 was availed on 22-5-1986 and the second facility of Rs,9,70,000 was availed on 21-6-1986, under the refinance scheme of the State Bank of Pakistan, against the execution of certain documents, as mentioned in the plaint, including the documents regarding the mortgage of the properties. It has further been averred in the plaint that as the respondents failed to ship the goods within the prescribed period of 150 days, therefore, the State Bank of Pakistan imposed a penalty amounting to Rs,2,23,473.33, which amount was paid by the appellant-Bank to the State Bank of Pakistan and when the respondents failed to liquidate the outstanding liabilities, therefore, the bank, deeming the respondents as defaulters, instituted the aforenoted suit for recovery. Pursuant to the issuance of notice under section 6(2) of Banking Tribunals Ordinance, 1984, the respondents filed the reply to the show-cause notice, to which rejoinder was filed by the appellant-Bank.
4. Out of the divergent pleadings of the parties, the learned Banking Tribunal framed the following issues:--
(i) Whether this Tribunal has no jurisdiction to try this suit?
(ii) Whether the plaintiff has neglected in receiving the price of the stocks hypothecated and pledged as security for the finance advanced to the defendants, if so what is the amount of insurance which could be claimed for the benefits of the defendants?
(iii) Whether the defendants can claim set off amounting to Rs,19,97,200 if so with what effect?
(iv) What amount is due from the defendants to the plaintiff?
(v) Relief.
' The learned Banking Tribunal, after recording the evidence of the parties on the aforenoted issues, passed "a decree for the recovery of Rs,5,94,291.15 in favour of the plaintiff and against the defendants/respondents, jointly and severally, with costs and rejected the rest of the claims of the bank, including the amount of Rs,2,23,473.33, the penalty imposed by the State Bank of Pakistan, and holding that the Bank is entitled to charge mark-up at the rate of 6% per annum, vide judgment and decree dated 6-7-1995. Seemingly aggrieved by the said judgment and decree, United Bank Limited filed an appeal (R.F.A. No,218 of 1995) and subsequently respondents Nos,1 to 4 filed the cross-objections to the said judgment and decree with the prayer that the decree be modified, suit of the bank be dismissed and a decree for a sum of Rs,19,97,200, as set off, may be passed in favour of the said respondents. This application was subsequently registered as R.F.A.
No,383 of 1995. We are proposed to decide both the said appeals through this single judgment.
5. The learned counsel for the appellant-Bank has submitted that on account of non-shipment of goods by the respondents, within the prescribed period' of 150 days, the State Bank of Pakistan, under its regulations, imposed a penalty amounting to Rs,2,23,473.33, which amount had already been paid to the State Bank of Pakistan by the appellant-Bank, therefore, they are entitled to recover the said amount from the respondents. He has further contended that the concessionary rate of mark-up, at the rate of 6%, was only allowed for a period of 150 days under the refinance scheme and as the respondents neither paid this amount nor shipped the goods, therefore, the appellant is entitled to charge mark-up at the normal rate of 20%. In this perspective, the learned counsel has stated that the aforesaid amounts be awarded to the appellant-Bank and decree be modified accordingly. Conversely, the learned counsel for the respondents, while controverting the contentions raised by the learned counsel for the appellant has submitted that the pledged goods were under the custody and lock and key of the appellant-Bank, which were burnt in the fire, and the bank failed to obtain compensation from the insurance company, thus according to the learned counsel, the appellant-Bank cannot claim any amount without returning the pledged goods. He has further contended that although the respondents claimed set off of Rs, 19,97,200 before the learned Banking Tribunal, yet no findings, whatsoever, were rendered on the said crucial issue. In this backdrop the submissions of the learned counsel is that while dismissing the appeal of the appellant-Bank, a decree for the said amount be passed in favour of the respondents. As regards R.F.A. No,383 of 1995, the learned counsel of the appellant-Bank has raised an objection that the cross-objections, which have been converted into the appeal, are not maintainable, inter alia, on the ground that the Banking Tribunals Ordinance, 1984 only provides a right of filing an appeal against a decree and no cross-objections could be entertained. Thus appeal deserves dismissal.
6. In view of the objection raised by the learned counsel of the appellant to the maintainability of R.F.A. No,383 of 1995, we have examined the record of the case and law on the subject and find considerable force in the argument of the learned counsel of the appellant-Bank. Section 9 of the Banking Tribunals Ordinance, 1984, inter alia. Provides that any person aggrieved by any decree passed by the Banking Tribunal may file an appeal to this Court within 30 days of such order and that the said appeal shall not be entertained unless the defendant has deposited with the Banking Tribunal, the amount claimed in the suit. Section 10 of the said Ordinance, 1984 prescribes that subject to the provisions of appeal under section 9 of the Ordinance, 1984, no Court or other authority shall call or permit to be called in question any judgment or decree passed by the Banking Tribunal. It flows therefrom that the scheme of the Banking Tribunals Ordinance, 1984, is that any judgment and decree passed by the Banking Tribunal has to be assailed only through the filing of an appeal, which too would be entertained after the deposit of the decretal amount and that said judgment and decree shall not be called in question through any other mode/manner, except by way of appeal. Furthermore, it is settled law that the right of appeal is creation of a statute and to be exercised according to the provision of that particular statute. Banking Tribunals Ordinance, 1984 was a special law and there cannot be any cavil to the proposition that a special law overrides the general law, thus the provisions of Banking Tribunals Ordinance, 1984 override the provisions of C.P.C. Additionally, the periods of limitation for filing the first appeal before this Court, provided in a special law and general law, are different, as in the case of decree passed by the learned Banking Tribunal, an appeal is to be filed within 30 days, while under the ordinary law, first appeal lies to this Court within a period of 90 days. Upon the perusal of the provisions of Banking Tribunals Ordinance, 1984, we find that the provisions of section 96, C.P.C. Have not been made applicable to the provisions of Banking Tribunals Ordinance, 1984. If respondents Nos,1 to 4 were aggrieved from any order, judgment or decree passed by the Banking Tribunal, they could have assailed the same through filing of an appeal under section 9 of the said Ordinance, and that too after fulfilling the requirements, enunciated in the said section, necessary before the entertaining the appeal. The said respondents were able to challenge the judgment and decree thereby by passing the provisions of section 9 and its requirements. As respondents Nos,1 to 4 failed to adhere to the provisions of section 9 of the Ordinance, 1984, therefore, we are of the view that the cross objections, filed by the said respondents, which were converted into appeal, were not entertainable, thus, in the above perspective, we are constrained to dismiss R.F.A. No,383 of, 1995.
7. Now coming to the appeal (R.F.A. No,218 of 1995) filed by the Bank. The first contention raised by the learned counsel of the bank is regarding the rejection of the 'claim of, Rs,2,23,473.33 in respect of the penalties imposed by the State Bank of Pakistan, which was paid by the appellant-Bank on behalf of the' respondents. After having examined different documents on record, we are of. The view that the contention of the learned counsel- of the appellant-Bank has a considerable force.
Under its relevant regulations, in case of non-shipment of goods within the prescribed period, the State Bank of Pakistan is authorised to impose a penalty upon a defaulting party, which is to be recovered from the Bank, who can in turn recover the said amount from the defaulting party. In this case we find that the penalty has rightly been imposed and the amount of penalties has already been paid by the appellant-Bank to the State Bank of Pakistan. The learned counsel of the respondents could not deny the fact that the said amount of penalty has already been paid by the appellant-Bank to the State Bank of Pakistan. In view of this we find that the learned Banking Tribunal has committed a legal error in declining the said relief to the appellant-Bank, whereas it was ,entitled for the recovery of Rs,2,23,473.33 and the Banking Tribunal ought to have awarded the said amount to the appellant. In this background we are inclined to modify the judgment and decree.
8. So far as the next contention of the learned counsel of the appellant-Bank, We are not persuaded to accept the same, as we find ourselves unable to agree with the said contention. We do not find any document on record, which, goes to show that there is any agreement between the parties, whereby the respondents have agreed to the 20% rate of mark-up, as convassed by 'the learned counsel for the appellant. On the other hand after the examination of the statement of accounts relating to FAPE Account, we find that the appellant-Bank has periodically charged the mark-up at the rate of 6% from the period ranging from 22-5-1986 to 30-12-1986. It was only on 30- 6-1987 that the mark-up has been charged at the rate of 20%. It flows therefrom that the appellants, even according to their own showings, could have charged the mark-up only at the rate of 6% and that rate appears to be an agreed rate of markup between the parties. We find that the findings of the learned Banking Tribunal that the bank is entitled to charge mark-up at the rate of 6% are not open to exception, thus the contention of the learned counsel has no force and is hereby repelled.
9. In view of our findings and reasons, hereinbefore recorded, appeal filed by respondents Nos,1 to 4 (R.F.A. No,383 of 1995) is hereby dismissed, while the appeal filed by the appellant-Bank (R.F.A.
No,218 of 1995) is partially allowed and the appellant-Bank is held to be entitled to claim a further amount of Rs,2,23,473.33, resultantly we modify the decree of Rs,5,94,291.15, awarded by the learned Banking Tribunal in favour of the appellant-Bank and pass a decree for the recovery of Rs,8,17,764.48 against the respondents jointly and severally. The parties are left to bear their own costs.
' Needless to observe that if after the passing of the decree, the respondents have paid any amount in liquidation of the decree, that amount would, of course, be deducted from the amount of Rs,8,17,764.48.