' These two appeals under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as "the Ordinance of 2001") instituted by Messrs Habib Bank Limited, involving a common question of law, are being disposed of through this common order.
2. Relevant facts leading to this litigation are that, in 1st Appeal No,49 of 2008, suit for recovery of Rs,1,70,452 instituted by the appellant bank against the two respondents was decreed vide judgment dated 23-11-2005, followed by preparation of decree dated 30-11-2005. In view of the non-awarding of cost of funds through this judgment, considering it, a clerical mistake/error/omission on behalf of Court, an application under sections 151,152 and 153 C.P.C. Was submitted by the appellant bank before the Banking Court on 16-2-2006, wherein relief of awarding cost of funds was sought from the date of commission of default by the respondent by way of addition of some words in the said judgment. As it appears from the impugned order dated 15-4- 2008, after hearing the arguments of the parties, the said application was dismissed by the Banking Court vide its order dated 15-4-2008 with the observation that under Section 152, C.P.C. The Court was only authorized for correction of clerical or arithmetical mistake in the judgment/order or an accidental slip or omission, not addition and improvement in the judgment and decree.
3. In 1st Appeal No,50 of 2008, suit for recovery of Rs,1,95,730, instituted by the appellant-Bank, being Suit No,6 of 2005, was decreed vide judgment dated 21-8-2006, followed by preparation of decree dated 30-8-2006. Incidentally in this suit also the cost of funds was not awarded to the appellant bank. The appellant, therefore, moved an application under sections 151, 152 and 153, C.P.C. Dated 16-9-2006 before the Banking Court, in substance, praying therein for awarding of cost of funds from the date of commission of default by the respondent. This application was also dismissed by the Banking Court for the same reasons as assigned in the other impugned order challenged through 1st Appeal No,49 of 2008.
4. Before us, the brief submission of learned counsel for the appellant is that in terms of section 17(1) of the Ordinance of 2001, awarding of cost of funds by the Banking Court in the suit instituted by a financial institution is mandatory and, therefore, it was nothing but an accidental slip, omission or error on the part of the Banking Court that the decree framed in the suit did not contain such relief in favour of the appellant. In support of his submission, the learned counsel has made reference to the provisions of section 17 and section 3 of the Ordinance of 2001 and to fortify his submission he has placed reliance upon the following cases:--
(1) Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472;
(2) Habib Bank Ltd. v. Iftikhar Ahmed and 7 others 1993 CLC 535;
(3) Messrs Habib Bank Limited v. Sajjad Haider and another Ist Appeal No,24 of 2007 of this Court.
5. We have carefully considered the submissions of learned counsel and perused the relevant record, which reveals that after passing of judgment and decree in the two suits, due to non- awarding of cost of funds, the appellant had moved separate applications in the two suits mentioning therein the error/omission committed by the Court in non-awarding of cost of funds, which in terms of section 17 of the Ordinance of 2001 was mandatory in nature. In order to appreciate the legal contention raised by the learned counsel, it will be useful to reproduce hereunder the two provisions of the Ordinance of 2001, which read thus:-- "17. Final Decree.--(1) The final decree passed by a Banking Court shall provide for payment from the date of default of the amount found to be payable on account of the default in fulfilment of the obligation, and for costs including, in the case of a suit filed by a financial institution cost of funds determined under section 3.
(2) The Banking Court may, at the time of passing a final decree also pass an order of the nature contemplated by subsection (1) of section 16 to the extent of the decretal amount."
"(3) Duty of a customer.--(1) It shall be the duty of a customer to fulfil his obligation to the financial institution.
(2) Where the customer defaults in the discharge of his obligation, he shall be liable to pay, for the period from the date of his default till realization of the cost of funds of the financial institution as certified by the State Bank of Pakistan from time to time, apart from such other civil and criminal liabilities that he may incur under the contract or rules or any other law for the time being in force.
3. For purpose of this section a judgment against a customer under this Ordinance shall mean that he is in default of his duty under subsection (1) and the ensuing decree shall provide for payment of the cost of funds as determined under subsection (2)."
(underlining is for emphasis)
6. A bare reading section 17 relating to preparation of final decree clearly provides that in a suit filed by a financial institution awarding of cost of funds, as contemplated under section. 3 of the Ordinance of 2001 is mandatory from the date of commission of default by the borrower/customer in the fulfilment of the obligation. Subsection (2) to Section 3 further elucidates this position as regards the cost of funds to be awarded in each case where borrower/customer is found to have committed default in the payment of the claim of financial institution.
7. Reverting to the applications of the appellant moved under sections 151, 152 and 153, C.P.C. Before the Banking Court, which were rejected through impugned orders, a reference to the judgment in the case of Syed Saadi Jafri Zainabi (supra) will be useful. Relevant observations contained in the said judgment are reproduced as under:-- "Having analyzed the nature and purpose of section 28-A of the Act it is to be considered whether in the facts and circumstances of the case relief could be granted to the appellant under section 152, C.P.C. Which reads as follows: -- "152. Amendment of judgments decrees or orders.-- ' Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
' Section 152 enables a Court to correct the mistake, omission or error in the judgment, decree or order which has erupted into it inadvertently and unintentionally. Such mistakes are mostly caused due to inadvertent mistake of the Court. The rules of procedure as provided by C.P.C. Are intended to foster justice, therefore, no one should be allowed to suffer due to the mistake of the Court.
' The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide discretion on the Court to correct, (i) clerical or arithmetical mistake, (ii) errors caused due to accidental slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under Section 152.
' Mr. Abdul Majid Khan, the learned counsel for the appellant, has referred to Bank of Credit and Commerce International (Overseas) Limited v. Ms. Ali Asbestos Limited and 5 others 1990 M LD 130.
In this case a suit was filed under the Banking Companies (Recovery of Loans) Ordinance and Order XXXIV, Rule 2 read with Order XXXVII, Rule 3, C.P.C. The Court while granting preliminary decree inadvertently did not grant relief against the mortgaged property although prayer for decree against it had been made. Subsequently, the plaintiff filed an application under section 152, C.P.C.
Relying on Ram Sing v. Sant Singh and others AIR 1930 Lahore 210 and Raj Bahadur Sing v.
Shatrangai AIR 1942 Oudh 226 in which several other judgments were referred it was observed as follows:-- "These observations clearly lay down the principles involved in section 152, C.P.C. Where the Court has not passed any order unintentionally but due to oversight or omission, although in the facts and circumstances of the case the party was entitled to such relief, the Court is empolvered to correct that mistake so that no party should suffer due to unintentional omission of the Court. In this suit plaintiff was entitled to a decree under Order XXXIV, C.P.C. In the normal course. The omission to grant this relief was not intentional."
8. Reference to the case of Habib Bank Ltd. (supra) is also pertinent, wherein a learned Single Judge of Lahore High Court examined the question of limitation for filing of such applications before the Banking Court and awarding of future interest so also the jurisdiction of the Banking Court and observed as under:-- "It is clear from the appellate as well as original decree that the Courts had accepted the claim of the petitioner in the suit as a whole including the recovery of future interest. Indeed grant of interest was a mandatory requirement of section 8(2) of the Banking Companies (Recovery of Loans)
Ordinance, 1979. There is nothing in the judgments or the decrees to show that the Courts had rejected the claim of the petitioner for grant of future interest." " it is well settled that act or mission of the Court can prejudice no one. In the present case the error which is clerical in nature was clearly committed by the Court while passing decree and as such question of limitation does not arise."
9. The view regarding the awarding of cost of funds in terms of section 17 read with section 3 of the Ordinance of 2001, being mandatory, also finds support from a recent judgment of this Court in 1st Appeal No,74 of 2007 (supra), wherein the scope of sections 17 and 3 of the Ordinance of 2001 was examined in a case where the Banking Court had omitted to award cost of funds in favour of the financial institution. It was held that grant of such relief to financial institution is mandatory in nature, therefore, Banking Court had no option but to award such cost of funds from the date of default, according to the State Bank circular as regards cost of funds, issued from time to time.
10. Reverting to the facts of the present case, it is clear that non-awarding of cost of funds in the two suits was an error/omission committed by the Banking Court and in the two judgments nowhere the Banking Court Judge has observed that the appellants were not entitled for the cost of funds from the period of default till the realization of decretal amount.
11. This being the position, both the appeals are allowed. In the result the appellants will also be entitled for cost of funds from the date of commission of default till the realization of the decretal amount. Decree passed by the Banking Court in Suit No, 573 of 2004 and Suit No, 616 of 2005 stand modified accordingly.