' MUNIB AKHTAR, J.---The present application, which is for interim injunctive relief arises in the following circumstances. The plaintiff, who does business as a sole proprietor had a banking relationship with the defendant for a number of years and from time to time availed various facilities. As presently relevant, the plaintiff mortgaged two properties belonging to him with the bank. The first property is located in the Faran Co-operative Housing Society (hereinafter referred to as the "Faran Society Property"). The mortgage in respect of this property was created both by a mortgage deed and by the deposit of title deeds, and an appropriate memorandum of deposit of title deeds was drawn up. The second property is located in Jinnah Co-operative Housing Society (hereinafter referred to as the "Jinnah Society Property"). The mortgage on this property was created only by way of deposit of title deeds. Both properties are of course situated in Karachi. The plaintiff's case is that he has in fact paid off the amounts that were due and payable to the defendant and the present suit has been filed for a settlement of accounts and more importantly for present purposes for redemption of the mortgaged properties.
2. The suit has been filed under the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("2001 Ordinance"). The immediate grievance of the plaintiff, which led to the filing of the present application (on 11-10-2011) is a public notice that was published in the press by the defendant on 8- 10-2011. By means of this public notice, the defendant, purporting to exercise statutory powers that allowed it to sell mortgaged properties without the intervention of the Court, sought to dispose of both the properties by way of auction. The plaintiff claims that the properties cannot be so disposed off and seeks interim injunctive relief.
3. The public notice issued by the defendant referred to two statutory provisions enabling it to sell off the mortgaged properties, being section 15 of the 2001 Ordinance and section 69 of the Transfer of Property Act, 1882 ("T.P. Act"). In order to properly appreciate the rival submissions of learned counsel, it will be appropriate to first take up section 15, which insofar as is presently relevant provides as follows:-- "15. Sale of mortgaged property.---( 1) In this section, unless there is anything repugnant in the subject or context--
(a) "mortgage" means the transfer of an interest in specific immovable property for the purpose of securing the payment of the mortgage money or the performance of an obligation which may give rise to a pecuniary liability;
(b) "mortgage money" means any finance or other amounts relating to a finance, penalties, damages, charges or pecuniary liabilities, payment of which is secured for the time being by the document by which the mortgage is effected or evidenced, including any mortgage deed or memorandum of deposit of title deeds; and "mortgaged property" means immovable property mortgaged to a financial institution.
(2) In case of default in payment by a customer, the financial institution may send a notice on the mortgagor demanding payment of the mortgage money outstanding within fourteen days from service of the notice, and failing payment of the amount within due date, it shall send a second notice of demand for payment of the amount within fourteen day's. In case the customer on the due date given in the second notice sent, continues to default in payment, financial institution shall serve a final notice on the mortgager demanding the payment of the mortgage money outstanding within thirty days from service of the final notice on the customer.
(4) Where a mortgagor fails to pay the amount as demanded within the period prescribed under subsection (2), and after the due date given in the final notice has expired, the financial institution may, without the intervention of any Court, sell the mortgaged property or any part thereof by public auction and appropriate the proceeds thereof towards total or partial satisfaction 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, specifying particulars of the mortgaged property, including name and address of the mortgagor, details of the mortgaged property, amount of outstanding 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 mortgagees.
(11) All disputes relating to the sale of the mortgaged property under this section including disputes amongst mortgagees in respect of distribution of the sale proceeds, shall be decided by the Banking Court.
(12) Neither the Banking Court nor the High Court shall grant an injunction restraining the sale or proposed sale of mortgaged property unless-
(a) it is satisfied that no mortgage in respect of the immovable property has been created; or
(b) all moneys secured by mortgage of the mortgaged property have been paid; or
(c) the mortgagor or objector deposits in the Banking Court in cash the outstanding mortgage money.
(13) The rights and remedies provided under this section are in addition to, and not in lieu of, any other rights or remedies a financial institution may have under this Ordinance.
(14) The provisions contained in this section shall have effect notwithstanding anything contained in this Ordinance."
4. Mr. Zeeshan Abdullah, learned counsel for the plaintiff, submitted that section 15(2) required the financial institutions to give three successive notices to the mortgagor in the manner as therein provided. He accepted that in the present case the first of these notices, dated 29-6-2011, was received by the plaintiff and a reply, dated 5-7-2011, was made thereto denying that any amount was payable by the plaintiff and also raising and taking various objections as stated therein.
However, it was categorically denied that the second and third notices were received by the plaintiff. It may be noted that according to the defendant these notices were issued on or about 16- 7-2011 and 1-8-2011 respectively. Thus, the plaintiffs case is that the requirements of section 15(2) not having been fulfilled and being mandatory in nature, the defendant could not exercise the statutory power of sale under the section.
5. With regard to subsection (2), learned counsel also drew attention to the fact that with regard to the first two notices, the word "sent" had been used, whereas with regard to the third notice the word "served" had been used. Learned counsel submitted that this was deliberate and indicated that the final notice had to be communicated to the customer with, and by, a degree of formality that was greater than the manner in which the first two notices could be communicated. His case was that the method to be adopted to communicate the third notice had to be akin to the method adopted by a court for service of notice or summons. Since this had admittedly not been done, learned counsel contended on this basis also that the requirements of subsection (2) had not been complied with.
6. The foregoing points were of course applicable to both the mortgaged properties. The next point taken by learned counsel related only to the Jinnah Society Property. Learned counsel referred to section 15(1), which defines certain terms for purposes of the section. In particular he relied on the definition of "mortgage money" given in clause (b) of the said subsection. While not denying the creation of a mortgage on the Jinnah Society Property by way of deposit of title deeds, learned counsel submitted that no memorandum of deposit of title deeds had been drawn up nor was there any document by which the mortgage on the Jinnah Society Property was effected or evidenced. His submission was that the specific (and rather restricted) definition of "mortgage money" limited' it to a mortgage that had been effected or evidenced by a specific document.
Since a financial institution could sell off a mortgaged property pursuant to section 15 only to recover "mortgage money" as therein defined, learned counsel contended that the Jinnah Society Property could not therefore be sold pursuant to this section.
7. Learned counsel also referred to section 15(12), which places a bar on the jurisdiction of a banking court and also the High Court to grant an injunction restraining the sale or proposed sale of mortgaged property unless any one of the three situations as stated therein is in existence.
Learned counsel submitted firstly that since mandatory requirements of subsection (2) had not been complied with and that in any case the Jinnah Society Property could not be sold for the reasons just stated, subsection (12) did not apply at all to the present case. He further submitted that even if this subsection did apply, then the facts and circumstances were such that clause (b) thereof was applicable. This was so because it was the plaintiffs case that the finances secured by the mortgages had already been paid off (and in fact the plaintiff claimed that he had made excess payments). Learned counsel submitted that in order for clause (b) to become applicable, all that was required was a bare statement to this effect being made in the plaint although he contended that the plaintiffs case was fully supported by the record, and relevant documents and material.
8. Insofar as section 69 of the T.P. Act was concerned, learned counsel submitted that that provision could not be relied upon by the defendant by reason of section 4 of the 2001 Ordinance and hence the defendant did not have and could not exercise any statutory power of sale in terms thereof. He submitted on the foregoing basis that the plaintiff had more than sufficient cause and grounds to be entitled to interim injunction relief and prayed accordingly.
9. Mr. Ijaz Ahmed, learned counsel for the defendant strongly opposed the grant of any relief. He submitted that, insofar as section 15 was concerned, All three notices as required under subsection
(2) had been served on the plaintiff. The defendant had placed on record the courier receipts for the first and third notices. Relying on these receipts, learned counsel for the plaintiff had argued that while the name of the consignee in the receipt for the first notice was correctly given (as that of the plaintiff) and his address had also been correctly noted, in the receipt for the third notice, while the name of the plaintiff appeared as the consignee, the address indicated was not correct.
Learned counsel had submitted on this basis that the defendant's own documents showed that the second and third notices had not been received by the plaintiff. On the other hand, learned counsel for the defendant referred to these very receipts to contend to the contrary. He drew attention to the signature of the person shown as having received the notices and submitted that the signatures on both receipts were identical. Thus, since receipt of the first notice was admitted, and the third notice had been received by the same person, its receipt could not be denied, and this was so notwithstanding any clerical error in the address of the consignee (i,e, the plaintiff). Thus, learned counsel contended, receipt of the first and third notices stood established from the record.
He candidly stated that the courier receipt for the second notice had been misplaced but submitted that a presumption of regularity attached to the acts of the defendant and there could not be any reasonable basis on which it could be seriously disputed that while the bank had sent the first and third notices, which were duly received, the same position did not obtain in relation to the second notice.
10. Insofar as the Jinnah Society Property was concerned, learned counsel for the defendant submitted that it was covered by section 15 and that the material on record clearly established that it came within the definition of "mortgage money" as contained in subsection (1)(b). In this regard learned counsel referred in particular to the final words of the definition, where word "including" has been used. Learned counsel submitted that the use of this word indicated that the requirements of the definition were fulfilled if there was any document that evidenced the creation of the mortgage, and the matter was not limited to that very document which directly affected or evidenced the mortgage. He submitted that there could be any number of different documents that evidenced the creation or existence of a mortgage and gave several examples in this regard.
Thus, he submitted that in many cases the mortgagor gave a power of attorney to the mortgagee, which referred to the mortgage. Such a power of attorney therefore was a document that evidenced the mortgage within the meaning of the definition. In the case of a company, the mortgage had to be registered with the Registrar Joint Stock Companies as required by the Companies Ordinance 1984. Learned counsel submitted that the forms and documents filed in this regard also constituted documents evidencing the mortgage within the meaning of the definition Similarly, a company was required by the Companies Ordinance to itself maintain a register of charges including mortgages, and learned counsel submitted that this register could likewise be the requisite document. Another example that he gave was the audited accounts of a company. If those referred to the mortgage in question, learned counsel submitted that that was yet again a document that complied with the requirements of section 15(1)(b). Of course, in the present case the mortgagor is a sole proprietor. Learned counsel submitted that certain documents placed on the record, to which I will refer later, evidenced the creation and existence of the mortgage on the Jinnah Society Property and that therefore, the requirements of the definition clause were amply fulfilled.
11. Learned counsel also relied on section 15(12) to contend that in the present case the jurisdiction of the Court was barred and no injunction could issue to restrain the sale of the two mortgaged properties pursuant to the public notice issued by the defendant. Learned counsel strongly contested the claim that there was nothing due and payable by the plaintiff. He submitted that even on a prima facie basis the record amply demonstrated that there was a substantial liability of the plaintiff, which he had failed to discharge. Learned counsel further contended that even if there were any irregularity in complying with the requirements of subsection (2), that still did not take the matter out of the scope of subsection (12) and the remedy, if any, of the customer (i,e,, the plaintiff) in such circumstances lay entirely in damages and not by way of an injunction.
12. Learned counsel also submitted that section 69 of the T.P. Act was fully applicable and could be invoked by the defendant in the present case. He contended therefore that on any view of the matter the plaintiff had no basis for seeking to enjoin the sale of the mortgaged properties and that the present application merited dismissal.
13. I had allowed learned counsel to submit synopses along with the case-law that they wished to rely upon and each learned counsel submitted his synopsis making reference to certain cases, which I will consider as and to the extent necessary and appropriate.
14. I have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. I first take up the matter of the Jinnah Society Property and the question as to whether it is covered by the definition of "mortgage money" as given in section 15(1)(b). The first point to note, and this has been correctly accepted by learned counsel for the plaintiff, is that there is no dispute with regard to the mortgage by way of deposit of title deeds that has been created on this property. The only question is whether the specific definition of "mortgage money" as given in subsection (1)(b) of section 15, and hence the section itself, is applicable, which would enable the defendant to sell the property without the intervention of the court.
15. When the definition is considered, the first point to note is that it uses the word "means". The use of this word in a definition has the effect that is too well known to require any elaboration. Although subsection (1) states that the definitions therein are to have effect "unless there is anything repugnant In the subject or context", in my view this saving provision does not apply to the present definition and it is therefore the meaning of "mortgage money" as given in clause (b) that must be applied. When clause (b) is considered, it is clear that there must be some document which can be related to the definition. Absent such document the definition will not apply, or in other words, there will be no "mortgage money' within the meaning of section 15. The crucial point, 'as presently relevant, is to note the use of the definite article "the" in relation to the document. It is not simply "a"
(or "any") document that will suffice. The definition, in other words, particularizes and specifies the document. What is this document? It is the document that must refer both to the amount of the financing and also the mortgage, either by creating the mortgage itself or evidencing its creation.
Why? Because the definition .Requires, by using the words "of which", that the payment of the financing is secured "for the time being" by this document. At the same time, it is the document "by which" the mortgage is effected or evidenced. It is only such a document, and none other, that can meet the requirements of the definition. I cannot therefore accept the submission made by learned counsel for the defendant that any document (such as the various examples given by him) Will do for purposes of the definition as long as it is relatable to the mortgage. The juxtaposition of the words "effected" and "evidenced" and also the use of the words "by which" in relation to the document clearly establish that the section requires the existence of that specific document which must have been created for the sole (or at the very least primary) purpose of either creating the mortgage itself or evidencing it. In other words, any collateral document which refers to the mortgage is insufficient for the A purposes of the definition, and this would include a document that may be necessary to be prepared, filed or maintained to meet any statutory requirement.
Insofar as the last portion of the definition, where the word "including" is used on which such emphasis was laid by learned counsel, is concerned, in my view that does not materially alter this position. The reason is that the documents referred to in the last portion, the mortgage deed and memorandum of deposit of title deeds are those very documents by which a mortgage is either effected or evidenced in the sense just explained. These words cannot in my view be used ejusdem generis as, it would seem, is being contended by learned counsel for the defendant. The last portion of the definition does not expand the scope of the preceding words, but serves only to clarify and. Explain them and, it would seem, was added only by way of abundant caution.
16. Learned counsel for the defendant relied on three documents in relation to the Jinnah Society Property to contend that the mortgage on this property was "evidenced" for purposes of the definition. The first document was a letter dated 11-2-2009 addressed to the defendant by the plaintiff, which referred to the Jinnah Society Property. This document in my view does not comply with the requirements of the definition since it is at best a collateral document that merely makes a general reference to the "documents" (which presumably means the title deeds) of the Jinnah Society Property that were submitted for "enhancement of facility". The second document was the offer letter dated 21-2-2009 sent by the plaintiff to the defendant. This document, which was accepted and executed by the plaintiff, referred to the equitable mortgage on the Jinnah Society Property, as indeed it did to the mortgage created on the Faran Society Property. Again, in my view this is at most a collateral document which does not have the intent and effect as required by the definition of "mortgage money". The third document relied upon was the murabaha agreement dated 21-3-2009 executed between the plaintiff and the defendant. This document, in its clause 11.1, referred to its schedule F which made reference to both properties. However, it is to be noted that this clause speaks of the customer (i,e, the plaintiff) executing all such instruments and documents (in the future) as necessary for creating and perfecting the securities on the two mortgaged properties and thus cannot, on the face of it, be the document that evidenced the mortgage having been created. In my view therefore, the Jinnah Society Property does not come within the scope of the definition of "mortgage-money" and it therefore follows that this property could not be sold by the defendant pursuant to section 15 of the 2001 Ordinance.
17. I now turn to consider the question whether the defendant met the requirements of subsection (2). There can be no doubt that these requirements are mandatory and must be complied with if at all the financial institution is to sell the mortgaged property without the intervention of the court.
While the subsection does use the word "sent" for the first two notices and "served" for the third, the conclusion sought to be derived from such use by learned counsel for the plaintiff cannot be accepted. The distinction is in my view too fine to be drawn for the purposes for which subsection
(2) has been enacted and the person (i,e,, a financial institution) by whom the notices are to be sent. In my view, the two words have been used interchangeably. Insofar as the notices themselves are concerned, it is of course accepted that the first notice was received. Looking at the close similarity in the signatures of the recipients of the first and third notices, as relied upon by learned counsel for the defendant, I conclude that the third notice was also received by the plaintiff since the recipients prima facie appear to be the same person. The only question therefore is whether the second notice was received or not. As noted above, learned counsel for the defendant candidly stated that the receipt for this notice had been misplaced. While the onus of establishing that the requirements of subsection (2) have been fulfilled certainly lies on the financial institution, which it must discharge should an objection be taken in this regard, keeping in mind the totality of the facts and circumstances of the case, I am of the view that prima facie the second notice was also sent to the plaintiff. I can see no reason why the defendant would go through the exercise of taking recourse to section 15 and skip issuing one of the required notices. It is to be noted that the second notice, as placed on record by the defendant, makes reference to the first notice while the third notice makes reference to the second notice. In my view, in the facts and circumstances of the present case a presumption may be drawn that all three notices were sent to and received by the plaintiff and reference in this regard may be made to illustration (f) of Article 129 of the Qanun-e- Shahadat Order 1984.
18. Insofar as section 15(12) is concerned, it is of course well established that any provision which seeks to oust the jurisdiction of a court is to be strictly and narrowly construed. In my view, if there has been any failure to comply with the mandatory requirements of any of the subsections of section 15, or a matter does not otherwise come within its B terms, the bar contained in subsection
(12) cannot possibly apply. Therefore, insofar as the Jinnah Society Property is concerned, the bar contained in subsection (12) can have no application since that property does not come within the scope of the definition of "mortgage money". Learned counsel for the plaintiff placed reliance, as noted above, on clause (b) of subsection (12). However, I cannot accept his submission that a bare statement made by the customer that all moneys secured by the mortgage have been paid is sufficient for purposes of this clause. If that were so, then section 15 could easily be reduced to a mere redundancy. The question therefore is: what should be the proper test that applies, or in other words the threshold that must be crossed by the customer, in order for clause (b) to be engaged?
Two points may be noted in this context. Firstly, the question of whether clause (b) applies in the context of a sale (or, let it said once and for all, proposed sale) of mortgaged property will almost invariably arise at the interlocutory stage. At that stage, it is only possible for the court to come to a tentative conclusion and record a prima facie finding. Therefore, the claim that all moneys have been repaid will have to be considered on this basis. Secondly, it would seem (although of course this will not always be the case) that relief against the sale of mortgaged property would be challenged by a customer in a suit filed by him. In any such suit, it is of course the financial institution that is the defendant and technically it is for it to obtain leave to defend in the suit. Now, leave to defend a banking suit is only granted if a substantial question or fact, Which requires evidence to be led, is raised in the leave application (herein after referred to as the "leave question"). In my view, if in a suit filed by a customer in which the sale of the mortgaged property is challenged and it is contended that the secured moneys have been paid off, the appropriate test would be in the following terms. For the limited purposes of ascertaining whether subsection (12)
(b) is engaged, the customer's claim (i,e, the plaint) should be examined as though it were a leave to defend application filed in a suit filed by the financial institution. For this purpose, the financial institution's pleadings and material placed on the record will also have to be examined. If on such basis, it is concluded that the claim (i,e,, plaint) raises a leave question with respect to the repayment of the secured moneys, then for the limited purposes just described, it could be said that the moneys have been repaid and thus, if a case is otherwise made out, an injunction 'can be issued. Of course, if the issue of whether the sale is to be enjoined or not arises in a suit filed by the financial institution, the customer's leave application (and other pleadings and material) will be considered in light of the foregoing observations.
19. When the foregoing test is applied to the facts and circumstances of the present case, I am not satisfied that the plaintiff has been able to make out a case that his claim (i,e,, plaint) raises a leave question in relation to the issue of whether the moneys secured by the mortgaged properties have been paid off or not. I emphasize that this tentative conclusion is only for the limited purposes of the issue raised in relation to section 15(12)(b). By no means should it be concluded that I have held that the present suit is not maintainable or that any leave application that may be filed by the plaintiff in a recovery suit instituted by the defendant (should such a suit be filed at all) would be liable to be dismissed. In my view, therefore insofar as the Faran Society Property is concerned, the jurisdictional bar as contained in subsection (12) is applicable and the sale of this property pursuant to section 15 cannot be restrained.
20. I now turn to consider section 69 of the T.P. Act. This exercise has become necessary because I have concluded that the Jinnah Society Property cannot be sold in exercise of statutory powers contained in section 15 of the 2001 Ordinance. Section 69, insofar as presently relevaht, is as follows:-- "69. Power of sale when valid. A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage-money, without the intervention of the Court, in the following cases and in no others, namely:
(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muslim or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the Provincial Government in the official Gazette;
(b) where the mortgagee is the Federal Government or a banking company as defined in the Banking Tribunals Ordinance, 1984 (LVIII of 1984);
(c) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the town of Karachi, or in any other town or area which the Provincial Government may, by notification in the official Gazette, specify in this behalf.
(2) A power under subsection (1) shall not be exercised unless and until:
(a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service ; or
(b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due: Provided that the power of a Scheduled Bank under clause (b) of subsection (1) shall further be subject to such conditions as may be prescribed in this behalf by notification in the official Gazette by the Federal Government in consultation with the State Bank of Pakistan.
(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given or that the power was otherwise improperly or irregularly exercised; but any person. Damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power."
As noted above learned counsel for the plaintiff stated that the defendant could not take recourse to this section by reason of section 4 of the 2001 Ordinance which provides as follows: The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
21. An examination of section 69 indicates that the defendant's case comes within clause (b) of subsection (1) which, inter alia, confers the power of sale without the intervention of the court on a banking company, and it is of course not in dispute. That the defendant is a person of such description. The power under subsection (1) cannot however be exercised unless either one of the two clauses of subsection (2) is applicable. Clause (b) of subsection (2) is clearly inconsistent with section 15 of the 2001 Ordinance. While Rs,500 may have been a fairly large amount in 1882 when the Transfer of Property Act was enacted, the passage of time as so eroded its value that it is today a partly sum and essentially meaningless. If this clause were in the field, then any person to whom subsection (1) applies could immediately initiate sale of the mortgaged property without any notice at all. Quite properly, learned counsel for the defendant did not place reliance upon this clause. Clause (a) on the other hand is in a different category. It does require one notice to be issued to the mortgagor and sale of the mortgaged property can only take place after three months have elapsed from the date of service. When this clause is compared with subsection (2) of section 15 of the 2001 Ordinance, in one sense it is more stringent and in another less so. It is more stringent in the sense that the mortgagee must wait for three months before initiating the sale, whereas under section 15, the entire exercise can be completed within around 45 days, i,e, around half the period. On the other hand, it is less stringent in the sense that it requires issuance of only one notice whereas section 15 requires three notices to be issued. Furthermore, section 69 applies generally to the mortgagees (of the requisite description) and moneys advanced or repayable in terms of the T.P. Act, whereas section 15 relates only to "mortgage-money" as specifically defined in, and for the purposes of that section, and as has just been seen, it there has a rather narrower (and it could even be said, more artificial) meaning. While it is clear that there are the significant differences between section 69 and section 15, it may be possible to reconcile the differences in such manner that the inconsistencies between the provisions largely (if not wholly) disappear and this indeed is the manner that, according to learned counsel for the defendant, is the correct and appropriate approach to take. The public notice published in the press by the defendant for the sale of the two mortgaged properties expressly made reference to both section 69 and section 15. However, it is also to be noted that the three notices actually issued to the plaintiff were clearly and expressly relatable only to section 15.
22. After having carefully considered the matter, in my view and subject to what is further stated below in relation to section 69, the correct approach to take is to conclude that both sections remain valid and subsisting though applicable in their own fields in a manner shortly to be explained. It is pertinent to note that the power of sale without the intervention of the court was introduced for the first time in the 2001 Ordinance and is not to be found in the precedent legislation, being the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997, the Banking Tribunals Ordinance 1984 and the Banking Companies (Recovery of Loans)
Ordinance 1979. It must therefore be presumed that the law maker was well aware of the existence of section 69 when the 2001 Ordinance was promulgated but chose to leave the former provision untouched. It is also to be noted that as presently relevant, section 69 applies only in respect of a limited category of mortgagees, i,e,, banking companies whereas the provisions of the 2001 Ordinance, and hence section 15, apply generally to financial institutions, which is a rather broader category.
23. Keeping of all the foregoing factors in mind, in my view, the proper approach to take, which ought to resolve conflicts and inconsistencies, would be that a mortgagee to whom both section 69 and section 15 apply must be put to an election. Such a mortgagee must choose to proceed either in terms of section 69 or section 15 but not both together. The election or choice made by the mortgagee must be clear on a bare reading of the notice or notices concerned. What the mortgagee cannot do is shift course, as it were, midway and/or switch from one provision to the other or in the end seek to rely upon both when the sale exercise is actually initiated. When the facts and circumstances of the present case are considered, it is in my view clear that the election or choice made by the defendant was to proceed in terms of section 15 of the 2001 Ordinance. This is established both from the contents of the notices themselves as well as of course the very fact that three notices were issued. Accordingly, it is on this section alone that the defendant can rely for purposes of the sale of the two mortgaged properties and not section 69 of the T.P. Act. The reference to the latter section in the public notice issued by the defendant must therefore be disregarded.
24. There is however an additional point with regard to section 69 that must also be taken in consideration. As noted above, the defendant's case as mortgagee under this provision comes within the scope of subsection (1)(b) and it is this clause that was relied upon by learned counsel for the defendant. Now this clause as it stands today has come about by way of a substitution made by means of the Finance.
' Act, 1986. Prior to this substitution, the clause read as follows:-- "(b) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgage is the Government or a scheduled bank as defined in section 2 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956". (emphasis supplied)
' In fact, the words emphasized above were added by means of the Transfer of Property (Amendment) Act, 1966. As is at once obvious, the defendant would not have been able to rely on clause (b) prior to the 1986 substitution in respect of both the mortgaged properties. This is so because the clause as it then stood required the power of sale without intervention of the court to be expressly conferred on the mortgagee by the mortgage deed and admittedly in the case of the Jinnah Society Property there 'was no such deed since the mortgage was created by deposit of title deeds alone. Insofar as the Faran Society Property is concerned however there was a mortgage deed which expressly conferred such power in terms, of its clause (3). For present purposes the crucial point is that the substitution was carried out by means of the Finance Act, 1986. The Supreme Court has, in Sindh High Court Bar Association v. Federation of Pakistan and others PLD 2009 SC 879 and Mir Muhammad Idrees and others v. Federation of Pakistan and others PLD 2011 SC 213, clarified the permissible scope of a money bill and the Finance Act that follows. It nas been held that if a matter is not within the scope of Article 73 of the Constitution, it cannot be made part of a money bill and hence cannot be enacted by means of a Finance Act. This is so because a money bill is only considered by one House of Parliament, namely the National Assembly, whereas all other legislation must in the ordinary and normal course be considered and passed by both Houses. Prima facie, the version of clause (b) as now in the field, i,e,, as substituted by the Finance Act 1986 may therefore be ultra wires the Constitution since the subject matter of said clause does not at all come within the ambit of Article 73. There is thus in my view a constitutional question mark over the,wires of this clause. I would not like to come to a definite conclusion in this regard however since the point was not argued before me and came to my attention only because there was some confusion as to the actual form of section 69 on account of past amendments, and this point had to be looked into. However, this apparent constitutional ferity is one more reason why, at this stage, it would note appropriate to apply section 69 to the facts and circumstances of the present case.
25. I may also note that learned counsel for the plaintiff challenged the wires of section 15 on the basis of a Full Bench decision of the Lahore High Court reported as Muhammad Umer Rathore v.
Federation of Pakistan 2009 CLD 257 in which the High Court has concluded that this section is ultra wires the Constitution. However, learned counsel for the defendant submitted that this decision is under appeal before the Supreme Court which has suspended its operation. In such circumstances, I would not wish to consider the matter of the viries of section 15, but record that learned counsel for the plaintiff did raise this as a ground so that it is open to him to pursue this matter should any appeal arise from the present proceedings.
26. Learned counsel for the plaintiff relied on certain cases to explain the meaning of "served" in the context of court issued notices, but on the view that I have taken of the matter, it is not necessary to examine these cases in detail. He also referred to certain cases to show that the provisions of section 15(2) were mandatory. The point is well settled and it is not necessary to consider this case-law in any detail. Learned counsel also referred to certain cases with regard to the statement of account that needs to be filed by a financial institution and in relation to the entries thereof. I have already concluded in the manner and for the purposes as explained in paras 18 and 19 above the plaintiff has not been able to cross the threshold for application of clause (b) of subsection (12) of section 15, which is the context in which the statement of accounts needed to be considered.
Learned counsel for the defendant also relied on certain cases, largely in rebuttal of the case-law relied on by learned counsel for the plaintiff, but again it is not necessary to consider those in any detail.
27. Before concluding, I would like to place on record my appreciation of the assistance provided to the Court by learned counsel for the parties. Mr. Ijaz Ahmed, who appeared for the defendant, is of course a highly seasoned and polished litigator. Mr. Saalim Salam Ansari, senior counsel appearing for the plaintiff, generously allowed Mr. Zeeshan Abdullah to proceed with the matter, and I would like to record my appreciation of the skill with which he conducted the case, which required resolution of rather difficult questions of law.
28. In view of what has been stated above, this application is partly allowed and the interim injunctive reli as sought in para 1 thereof is granted in respect of the .Nnah Society Property.
However, no case for such relief is made out in respect of the Faran Society Property and accordingly to that extent, the application is refused.