' MUHAMMAD NAWAZ ABBASI, J.---Leave to appeal has been sought in these two connected petitions ,arising out of the judgment dated 12-9-2006 passed by the High Court of Sindh at Karachi by virtue of- which three separate constitutional petitions filed against the order dated 12- 9-2006 passed by the Banking Court at Karachi under section 15(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 hereinafter to be called the Ordinance have been allowed.
The operative part of the judgment of High Court is reproduced hereunder:-- "From the proceedings in hand it is apparent that above requirements have not been fulfilled in the given circumstances. The authorities cited by the learned counsel for the respondent are not attracted. Learned counsel specifically, Ms. Wajihah Mehdi has argued that since the Court has become functus officio after handing over property, therefore, the matter has come to an end. She has relied upon several authorities but all those authorities are not attracted in the case in hand as the - orders passed by Banking Court have not become a fait accompli as its orders are not irreversible and factual position can be restored. We also do not agree with the objections of learned counsel in respect to aintainability of the petitions as the Banking Court has wrongly assumed the jurisdiction and Bank has gravely violated the law to its own benefit. Secondly, the order passed by Banking Court falls within sub-clause (6) of 22 of FIO and are not subjected to appeal. Even otherwise, grave illegality has been committed by the Bank against its customer, as being reflected in the factual position narrated above, therefore, it is declared that the order dated 6-12-2004 is not maintainable and is set aside as very proceedings before the Banking Court with all its consequences were corum no judice and was issued wrongly by the Banking Court and are of no legal effect. Hence the parties do stand at place where they were at the time of filing of proceedings in the Banking Court under section 15(6) of the FIO 2001."
2. The essential facts in small compass leading to the filing . Of present petitions are that in consequence to the failure of the respondents to discharge their liability regarding the financial facility obtained by them from the Saudi Pak Commercial Bank, Karachi to the tune of Rs,1046.114 million, the. Bank proceeded to sell their properties mortgaged with it to secure the loan by way of auction under section 15(4) of the Ordinance without the intervention of the Court and thereafter invoking the provision of section 15(6) of the Ordinance moved an application to the Banking Court at Karachi for delivery of possession of the properties auctioned to the auction-purchaser. The respondents mortgagors were not joined in this application, -therefore, they filed an application under Order I, rule 10, C.P.C. To be impleaded as party in the proceedings and also filed a Constitutional petition in the High Court of Balochistan at Quetta challenging the provisions of section 15 of the Ordinance to be violative of Articles 4 and 175 of the Constitution. The writ petition was ultimately dismissed whereas the application under section 15(6) of the Ordinance was disposed of by the Banking Court vide order dated 12-9-2006 and this order was assailed by the respondents before the High Court of Sindh at Karachi in its Constitutional jurisdiction mainly on the ground that Banking Court had no jurisdiction to entertain the application under section 15(6) of the Ordinance and adjudicate the matter. The High Court after detailed examination of the question relating to the exercise of power by the financial institution under section 15(4) and by the Banking Court under section 15(6) of the Ordinance held that neither the auction of the properties by the financial institutions was in accordance with the provision of the Ordinance nor the Banking Court at Karachi was competent to assume jurisdiction in the matter.
3. The liability of the respondents as contained in the notices dated 3-4-2003, 3-5-2003 and 10-6- 2003 published by the Bank in the newspapers was to the tune of Rs,1046.114 millions whereas the jurisdiction of the Banking Court established under the Ordinance is confined to the extent of claim of Rs, Fifty million and in respect of other cases High Court has been defined as Banking Court under section 2(b) of the Ordinance, which provides as under:-- "Banking Court" means:---
(i) In respect of a case in which the claim does not exceed fifty million rupees or for the trial of offence under this Ordinance, the Court established under section 5;
(ii) In respect of any other case, the. High Court."
4. The main controversy between the parties involved in these petitions relates to the jurisdiction of the Banking Court and learned counsel for the petitioner has argued firstly that respondents having not raised objection to the taking cognizance of the matter by the Banking Court at the appropriate stage, could not subsequently take an exception to its pecuniary jurisdiction to entertain the proceeding under section 15(6) of the Ordinance and secondly the adjudication before the Banking Court was not in respect of the financial liability of the respondents rather it pertained to putting the auction-purchaser in possession of the mortgaged properties sold by the Bank without the intervention of Court, therefore, the question relating to the pecuniary jurisdiction of the Banking Court was not at all involved.
5. The learned counsel for the respondents in reply having raised serious objection to the manner of disposal of the properties of respondent and exercise of jurisdiction by the Banking Court has opposed this petition and in support thereof has argued (a) that financial institutions do not enjoy unlimited power of sale of mortgaged property and must not exercise the power available to such institutions under section 15(4) of the Ordinance without fulfilment of the essential conditions contained therein to ensure the auction to be quite fair and transparent but in the present case the financial institution without strict observance of the legal formalities sold the properties at throw- away price (b) The Banking Court in view of , the provision of section 2(b) of the Ordinance cannot assume jurisdiction and entertain, the proceedings under section 15(6) of the Ordinance in respect of a case in which the claim exceeds fifty million rupees whereas in the present case the claim of the Bank was much beyond the pecuniary jurisdiction of the Banking Court, therefore, notwithstanding the fact that the adjudication before the Banking Court pertained to the delivery of the possession of properties to the auction-purchaser, the matter directly relating to the satisfaction of the claim of bank and the financial liability of the mortgager was exclusively adjudicatable by the High Court and Banking Court was not competent to entertain the proceedings under. Section 15(6) of the Ordinance.
6. It is true that a Court which has the jurisdiction to IA adjudicate the, dispute and pass an order has also implicit power to have the order implemented and mere an erroneous order passed by the Court of competent jurisdiction does not B render the order without jurisdiction. This is an established law that jurisdiction cannot be assumed with the consent of the parties and notwithstanding the raising of such an objection by the parties, the forum taking cognizance of the matter must at the first instance decide the question of its jurisdiction. There can be no exception to the principle that an order passed or an act done by a Court or a Tribunal not ,Competent to entertain the proceedings is without jurisdiction and that it is mandatory C for the Court or Tribunal as the case may be to attend the question of jurisdiction that the commencement of the proceedings because the jurisdictional defect is not removed by mere conclusion of trial or inquiry and objection to the jurisdiction can be raised at any subsequent stage. This Court in Rashid Ahmed v. State PLD 1972 SC 271 held as under:-- "If a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow D become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
7. The contention of the learned counsel for the petitioners that sale of mortgaged property under section 15(4) of the Ordinance by the financial institution without the intervention of Court has no nexus with the pecuniary jurisdiction of the Banking Court and power under section 15(6) of the Ordinance is invariably available to the Banking Court in all such cases as an executing agency, has no substance. The plain reading of the provisions of law under discussion would unambiguously show that the jurisdiction of the Banking Court either for the purpose of satisfaction of claim of the financial institution or disposal of allied matters must be determined in the light of E provision of section 2 (b) of the Ordinance which is not confined only to the suits involving financial disputes rather all matters directly or indirectly connected with the satisfaction of the claim of financial institution or the financial liability of a person are covered and Banking Court is not supposed to entertain the proceedings under section 15 (6) in a case involving claim beyond its pecuniary jurisdiction.
8. The financial institution subject to the compliance of mandatory requirement of law is empowered to sell the mortgaged property under section 15 (4) of the Ordinance without the intervention of Court and in addition to the furnishing of the necessary particulars of the mortgaged F properties and detail of the outstanding liability of the mortgagor is also required to send notices to all concerned and file proper accounts of sale proceeds in term of section 15(10) of the. Ordinance. The above provisions for convenience and better appreciation of the proposition involved herein are reproduced hereunder:-- "15.-44) Where a mortgagor fails to pay the amount as demanded within the period under subsection (2), and after the due date given in the final notice has expired, the financial institutions may, without the intervention of any Court, sell the mortgaged property or any part thereof by public auction and appropriate the proceeds or any part thereof by public auction of the outstanding mortgage money: ' Provided that before exercise of its powers under this subsection, the financial institution shall cause to be published a notice in one reputable English daily newspaper with wide circulation and one Urdu daily newspaper in the Province in which the mortgaged property is situated, specify particulars of the mortgaged property, including name and address of the mortgagor, details of the mortgage money, and indicating the intention of the financial institution to sell the mortgaged property. The financial institution shall also send such notices to all persons who to the knowledge of the financial institution have an interest in the mortgaged property as mortgages.
15 --- (10) A financial institution which has sold mortgaged property in exercise of powers conferred herein shall file proper accounts of the sale proceeds in a Banking Court within thirty days of the sale."
9. The sale of mortgaged property through auction without the compliance of the requirement of law in letter and spirit G certainly invalidates the transaction as a whole but we need not to go into this question in the present petitions and confine ourselves to the extent of controversy regarding the jurisdiction of the Banking Court. The careful examination of the provisions of the Ordinance referred above would clearly show that Banking Court established under the Ordinance cannot assume jurisdiction in a case in which the claim of financial institution or the financial liability of a person is, more than fifty H million rupees and all matters directly or indirectly connected with' the claim of financial institution exceeding fifty million rupees are exclusively adjudicatable by the High Court.
10. In consequence to the, above discussion, we are constrained to hold that financial institution does not enjoy the unbridled and unlimited power to dispose of the mortgaged property in its sole discretion and similarly the Banking Court established under the Ordinance is not authorized to take cognizance of a matter under section 15(6) beyond its J pecuniary jurisdiction prescribed under section 2(b) of the Ordinance.
11. The contention of the learned counsel that the petitioners being the bona fide purchaser must not suffer due to the fault of the Bank, having no relevance to the question of jurisdiction of the Banking Court cannot be commented upon in the present proceedings and the petitioners are at liberty to take any question of law and facts before the proper forum in appropriate manner.
12. In the light of foregoing reasons, we uphold the judgment of the High Court and dismiss these petitions. Leave is refused.