1. DORAB PATEL, J.-The petitioner had advanced a loan to the respondents which was secured by a Promissory Note, by a pledge and by a hypothetica--tion and mortgage of the factory of the respondents. In the events that happened, a sum of Rs. 603, 302.97 was due from the respondents and as they did not repay it despite the petitioner's notice on 26-9-1979, the petitioner filed an application in the original side of the High Court of Sind under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 (hereinafter called the first Ordinance), for the attachment and sale of the mills of the respondents in Quetta As is apparent from the title of the first Ordinance, the petitioner had been set up under this Ordinance. However, on 26-9-1979 the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter called the second Ordinance) was in force, therefore, the Chief Justice of the Sind High Court held that the petitioner's application was not maintainable, because the petitioner was a banking company within the meaning of the second Ordinance, and, there--fore, by his order dated 5-11-1975, he directed "Let the plaint be returned for presentation before the proper forum". The proper forum :was the Special Court set up under the second Ordinance and according to section 5 the "Special Court shall consist of a person who is a District Judge." Now, as the petitioner is aggrieved by the transfer of its case from the High Court to a Court subordinate to the High Court, it has filed this petition for leave.
2. In support of the petition, Mr. Chundrigar relied on section 3 of the second Ordnance, because the heading of this section states that the second Ordinance was "not to derogate from other laws."
3. But, it is a trite observation that the heading of a section cannot curtail the plain words of the section and the section reads :- "3. Ordinance not to derogate from other laws.-The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force."
4. The words "save as hereinafter expressly provided" are fatal to Mr. Chundrigar's submission, because subsection (4) of section 6 of the second Ordinance states in terms that all proceedings pending in an Court by any banking Company for the recovery of a claim exceedinf Rs. 1 lac "shall stand transferred to the Special Court." As the petitioner is a banking Company and as the loan it seeks to recover exceeds Rs. 1 lac, its application in the High Court stood transferred to the Special Court on the plain language of section 6.
5. Mr. Chundrigar then submitted that the object both of the first Ordi--nance and of the second Ordinance was to ensure the speedy recovery of loans by banks and as the provisions of the first Ordinance for the speedy recovery of loans were more effective than those contained in the second Ordinance, learned counsel submitted that it would be very anomalous if the petitioner was deprived of the benefits of the Ordinance by which it was set up by another Ordinance the object of which also was only to help the petitioner to recover its loans speedily.
6. In order to appreciate these submissions, we may point out that section 38 of the first Ordinance confers a power on the petitioner to call for the repayment of the loans advanced by it before the expiry of the agreed period on the fulfilment of the conditions specified in the section. Section 4 of the second Ordinance confers a similar power on banks to recall loans before the expiry of the agreed date of repayment, but the powers conferred under this section are wider than those under section 38 of the first Ordinance.
7. However, as submitted by Mr. Chundrigar, the main object of setting up a Special Court was that suits by banks should be disposed of expeditiously, therefore, section 7 of the second Ordinance reads :- "7. Procedure of Special Court.-(1) Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded a Special Court shall not allow adjournment.
(2) In the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908)."
8. As according to Mr. Chundrigar, the procedure prescribed in this section was much less effective than that prescribed in section 32 of the first Ordinance, it is necessary to compare these two sections.
9. As the Special Court "shall follow the summary procedure for in Order XXXVII" of the Civil Procedure Code, we may explain here that if a suit is filed under Order XXXVII the defendant is not permitted to defend it, unless he obtains the leave of the Court for so doing under rule 3 of the Order. But, even in suits in which leave is not given, the Court cannot decree the suit until the period of limitation prescribed for obtaining leave under Article 199 of the Limitation Act has expired anti the defendant has not sought permission to defend the suit. Further. Even after the suit is decreed, the plaintiff can recover the decretal amount only through execution proceedings.
10. We now turn to section 39 of the first Ordinance. If the petitioner is entitled to recover money due to it, all it had to do under this section was to file an application for "(a) an order for the sale of the property pledged, mortgaged, hypotheticated or assigned .To the Bank as security for the loan, or
(b) transfer of the management of the concern to the Bank, or (c) an injunction ad interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without. The permission of the Board." And, if it filed such an application, sub--sections 3 and 4 of section 39 prescribed that the Court "shall pass" an ad interim order attaching the defendant's properties or that it "shall pass" an ad interim injunction "restraining the concern from transferring or removing any machinery or equipment without the consent of the (petitioner)." This ad interim order was of course subject to notice, but it provided the petitioner with an extremely effective way of recovering its advances, because the ad interim order effectively crippled the defendant's power of transferring his assets in order to defeat the petitioner's claim. As there is no similar provision in Order XXXVII, it is obvious that the remedy available to the petitioner under section 39 of the first Ordinance G was much more effective, than the new remedy under section 7 of the said Ordinance, the more so, as the benefit of section 39 was available for all types of claims including mortgages.
11. We are aware that the second Ordinance also prescribes that the procedure provided for in Order VXXVII shall be followed in suits on mortgages and on suits statements of account. But the Special Court has no power to alter the law, therefore, section 15 empowers the Federal Government to frame rules. But, according to Ms. Chundrigar, no rule have been framed yet and we have also not been able to trade any rules. Therefore, if, in the instant case, the petitioner's claim had been solely on a mortgage, the Special Court would have been compelled to follow the ordinary procedure for suits by treating it as a hang cause matter a no rules have been framed. However, even or the footing that rules have been framed, there will be complications in the Nay of a banking Company which seeks to follow the procedure of Order XXXVII in a suit, for example, on a mortgage. What does the direction that "the Special Court shall in all suits before it . . . Follow the summary procedure provided for in Order XXXVII" mean? Order XXXVII prescribes that a defendant shall not be permitted to defend the suit without the leave of, the Court. So the rules, if any, framed under section 11 of the second Ordinance, could contain a similar power with regards to suits on mortgages. But the procedure of Order XXXVII is a speedy procedure not merely because the defendant cannot contest the suit without obtaining leave, but also because the defendant has to obtain leave within ten days of the service of the plaint on him. But this period of seven days is not prescribed in Order XXXVII, but in the Schedule to the Limitation Act. And, further the Schedule to the Limitation Act also prescribes the period of limitation for filing suits of all types whatsoever.
12. Therefore, if the Federal Government frames any provision with regard to limitation in the exercise of its powers under section 11 of the Ordinance, it is bound to lead to litigation about the vires of the rules.
13. We are deeply disturbed by these aspects of the second Ordinance and as its object is to enable banks to recover their loans speedily it is certainly very anomalous that the petitioner has been deprived by this very Ordinance of the very efficacious remedies available to it under the first Ordinance. But this is not only anomaly in the Second Ordinance. Thus, for example, we pointed out earlier that the petitioner's applica--tion stood transferred to the Special Court, because it had sought the recovery of an amount exceeding Rs. 1 lac. This observation had reference to section 6 of the first Ordinance, according to which the Special Court does not have the jurisdiction to entertain a claim which "does not exceed one lac rupees." So if the petitioner's claim, in the instant case, had not exceeded Rs. 1 lac, it would have been entitled to prosecute its claim on the original side of the High Court. But because its claim exceeds Rs. 1 lac, the High Court has no jurisdiction to entertain it, although the Special Court is a Court subordinate to the high Court. To say the least this provision has created a very awkward situation for the High Court of Sind.
14. Finally, Mr. Chundrigar drew our attention to the fact that the provisions of the Second Ordinance were not applicable to the Agricultural Development Bank of Pakistan. That is correct, because section I expressly prescribes that the second Ordinance "applies to all banking companies except the Agricultural Development Bank of Pakistan. . ." But, precisely because a similar exemption has not been granted to the petitioner, it follows that the petitioner is bound by the provisions of the first Ordinance. This petition, therefore, fails and is dismissed but a copy of this order shall be sent to the Law Secretary.