ORDER SYED HASSAN AZHAR RIZVI, J. - Petitioner has impugned the order dated 15.12.2009 and order dated 22.5.-2010 passed by learned Banking Court-ll, Karachi in Suit No. 305/2008, whereby the application for leave to defend filed by respondents No. 2 to 7 was allowed and application under Section 11 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 filed by the petitioner was Dismissed.
2. In nutshell the facts of the case are that respondent No. 2 is an unregistered partnership concern and respondents No. 3 to 7 are partners, mortgagors and guarantors of respondent No. 2. The petitioner was extended various finance facilities to respondents No. 2 to 7. The respondents No. 2 to 7 entered into an agreement for financing on mark-up basis dated 24.6.2D05 for availing finances upto an aggregate sum of Rs. 30 million. After availing the said facility under finance agreement the Respondents defaulted in their repayment to the petitioner, therefore, petitioner filed a Suit No. 305 of 2008 against respondents No. 2 to 7 praying for a decree jointly and severally "* wherein respondents No. 2 to 7 jointly filed application for leave to defend, which was dismissed on 10.5.2009, The respondents No. 2 to 7 challenged the said order by filing petition, which was allowed by this Court on 02.12.2009 while imposing costs on respondents No. 2 to 7 of Rs. 25,000/-
3. It is further averred in the petition that the learned respondent No. 1 after hearing the arguments on the application for leave to allowed the same without considering the facts without passing an interim decree for the admitted amount and failing to exercise the jurisdiction vested in*it. The petitioner, after passing the said order dated 15.12.2009, filed application under Section 11 of the Ordinance 2001, which was dismissed vide impugned order dated 20.5.2010, hence this petition.
4. We have heard Mr. Ijaz Ahmed learned counsel for the petitioner and Mr. Asghar Bangash counsel for the respondents No. 2 to: 7.
5. It was contended, by Mr. Ijaz Ahmed, counsel for petitioner that an amount of Rs. 12,123,196.93 is payable to the petitioner, which has been admitted by the respondents No. 2 to 7 in paragraph (8) of the leave application and also mentioned at. Type page (4) of the impugned order dated 15.12.2009. It was further contended that the impugned order is based on non-reading and misreading of the documentary evidence produced by the petitioner. It was further urged that the dispute between the parties is to the extent of a partial amount and not based on whole claim and to the extent of admitted amount the , learned respondents had to pass interim decree. Learned counsel vigorously argued that power to grant leave application under Section 10(8) of the Ordinance 2001 is subject to the provisions of Section 11 of the Ordinance 2001. He has made reference to Article 199(1)(a) and Article 203 of the Constitution of Islamic Republic of Pakistan, 1973.
Learned counsel in support of his submissions has placed reliance on the case of Sheikh Abdul Sattar lasi and another v. Judge Banking Court and 3 others (2007 CLD 69), wherein it has been held that grave illegality had been committed by Bank, against its customer. Banking Court had no jurisdiction to entertain the matter and order passed by it suffered from principle of corum non judice, hence, was liable to be set aside. He has also placed reliance on the case of TRIMBAK GANGADHAR TELANG & OTHERS v. RAMCHANDRA GANESH BHIDE & OTHERS (AIR 1977 SC 1222), wherein the Hon'ble Supreme Court held that "it is a well-settled rule of practice not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because, two views are possible on the facts of a case. It is also well-established that it is only when an order of Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or jaw has crept or where the order passed in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution."
6. On the other hand, Mr. Asghar Bangash learned' counsel for the respondents No. 2 to 7 fully supported the impugned orders and contended that the learned Trial Court has discussed all aspects of the case in ing order and also that the documents filed by the petitioner alongwith the plaint as well as the legal question raised by the respondents requires completed evidence, therefore, the learned respondent No. 1 dismissed the application under Section 11 of the Ordinance 2001. He further contended that evidence of the plaintiffs side has already been recorded and now the matter is fixed for defendants' evidences. He also placed on record copy of deposition of plaintiffs witness alongwith statement dated 11.3.2011. He contended that finance facility granted to the respondents to the extent of Rs. 30 millions but only Rs. 24 millions has been disbursed. He urged that no appeal can be preferred against interlocutory order as the same could not be challenged by filing of Constitutional petition, which would amount to negate the provisions of the statute and proper course for party to wait for final orders and then file an appeal against same wherein could also impugn the interlocutory order. He also made reference to Section 27 of the Ordinance 2001, which reads as under:- "27. Finality of order.-Subject to the provisions of Section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceeding, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance."
7. Learned counsel in support of his submissions has placed reliance on the following cases:-
(1) 2002 M LD 1655
(2) 1996 SCM R 1165
(3) 2000 SCM R 1391
8. In the first case of M/S. FIRST WOMEN BANK LIMITED & ANOTHER v. JUDGE (BANKING COURT), SINDH HIGH COURT KARACHI (2002 M LD 1655), wherein the Division Bench of this Court in which one of us (Mushir Alam, CJ.) was a member, held as under:- "Interlocutory order. When a statute did not provide an appeal against interlocutory order, same could also not by challenged by way of Constitutional petition as same would amount to negate the provisions of the statute: Proper course for party in circumstances would be to wait for final order and then file an appeal against same wherein he could also impugn interlocutory order."
9. In the second case of SYED SAGHIR AHMED NAQVI v. PROVINCE OF SINDH & ANOTHER (1996 SCM R 1165), the Hon'ble Supreme Court held that:- "Art. 199-Constitutional jurisdiction, exercise of- Statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in Constitutional jurisdiction. Party affected had to wait till it matured into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders".
10. In the third case of ABDUL MAJID v. SYED MUHAMMAD ALI SHAMIM & 10 OTHERS (2000 SCM R 1391), wherein it has been held that it is trite law that pleadings are not evidence by themselves and that of a defendant in written statement could not be used as evidence when amounting to admission of plaintiffs plea, without the examination of the concerned party in its support.
11. We have examined the arguments advanced by the learned counsel for the parties, the material available on record and the case-law cited at the bar.
12. Admittedly, the finance facility of Rs: 30 million was granted to the respondents No. 2 to 7, out of which Rs. 24,882,292.08 was disbursed, which is clearly indicated from the break-up submitted by the respondents in the leave to defend application and the same is reproduced for ready reference:- "Amount of finance availed Rs. 24,882,393.08 ' ' Principal Rs.12,782,146.15 Mark-up (180 days the Rate of 8%) Rs. 981,662.00 Rs. 13,763,808.15 Amount due and payable Rs.12,123,196.93*
13. The petitioner being a financial institution has granted finance facility to respondents; repayments whereof has not been made as per terms. The petitioner filed a Suit No. 305/2008 under Section 9 of the Ordinance 2001 for recovery of Rs. 34,1000,057.69 alongwith liquidated damages cost of funds charges, costs, till the realization of the whole amount. The respondents filed leave to defendant application and admitted that the amount of Rs. 12,123,196.93 is due and payable to the petitioner, but the learned respondent No. 1 while allowing the application for leave to defend did not pass interim decree, as such could not fulfill, the requirements of Section 11 of the Ordinance, 2001, which reads as under:- "11. Interim Decree.~(1) If the Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed, or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff.
(2) The interim decree passed under sub-section (1) shall, for all purposes including appeal and execution, be deemed to be' a decree passed under this. Ordinance, any amount coveted thereby or recovered . In execution thereof shall be adjusted at the time of the final decree."
14. A plain reading of above provision of law shows that where the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and farming issues with respect to the disputed amounts pass an interim decree in respect of that part of the claim, which appears to be payable by the defendants to the plaintiff. Moreover, the case- law cited by the learned counsel for the respondents No. 2 to 7 are on point that the writ petition could not lie against the interlocutory order and proper course for party would be to wait for final decision. It is correct that the statute provided no appeal or Constitutional petition against the interlocutory order, but the Court in its extraordinary jurisdiction has power to correct the wrong, particularly where no efficacious remedy available to an aggrieved party. Reference can be made to the case of KHALID MEHMOOD v. COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE (1999 SCM R 1881), wherein the Hon'ble Supreme Court of Pakistan held that Article 199 of the Constitution opens with word to the effect that the High Court may exercise its powers under such Article only "if it is satisfied that no other adequate remedy is provided by law." The above-cited case specifically provided that this Court shall have jurisdiction under the said provisions of the Constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the main question in every case of Article 199 of the Constitution, is whether an aggrieved provision, who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Therefore, we allow this petition and direct the respondent No. 1 to pass preliminary decree under Section 11 of the Ordinance, 2001 for the admitted amount of Rs. 12,123,196.93.
15. The petition stands disposed of in the above terms.