UMAR ATA BANDIAL, J. - To recover it over dues without obtaining a decree of Court, the respondent bank has sold two charged properties of the appellants on 5.3.2009 in exercise of power under Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO").
Such power of a financial institution was struck down as unconstitutional by a learned Full Bench of this Court in its judgment dated 23.12.2008 passed in Muhammad Umar Rathore v. Federation of Pakistan (2009 CLD 257). The appellants assailed in writ petition the afore- noted private sale of its charged properties by respondent bank as being illegal and void. The learned Single Judge has is missed the writ petition for being not maintainable against private bank. Hence this appeal.
2. In addition to the ground taken by the learned single Judge, the learned counsel for the respondent bank has justified the impugned sale on the basis that the appellants have admitted their liability vide their letter dated 06.10.2008 and consequently this is not a fit case for interference by the Court as the appellants have approached for relief with unclean hands. For that reason he also contends that assuming void sales to have been made in the present case, the same may not be set aside in the Constitutional jurisdiction unless such an order would defeat rather than foster justice.
3. The learned counsel for appellants has answered that the entire liability has been repaid in full by the appellants. This is evident from the statement of account available on record at page 44 of the file which shows a zero balance at page 79. As such the quantum of liability of the appellants is a disputed matter. The ratio of Umar Rathore's case is that a creditor cannot be judge in its own cause and must establish its claim before a Court of law before recovering the same from its customer. We respectfully agree with the salutary principle laid down in the said judgment. The impugned sales were conducted in violation of the said principle and in exercise of a presumed statutory power after it had been declared unconstitutional and void. Consequently, the impugned sales are made without lawful authority and are of no legal effect.
4. Insofar as the objection regarding maintainability of a writ petition against a private bank concerned, that has no bearing in the present mat. Because the challenge in the petition is to the existence a . Exercise of a statutory power by the respondent private bani and not to any contractual or private action taken by it. The impugned action impinges upon the property rights of appellants which cannot be denuded except in accordance with law. The impugned action by the respondent ban violates the fundamental right of the appellants to hold a enjoy property under Articles 23 & 24 of the Constitution . Islamic Republic of Pakistan, 1973. Under Article 199(1) of the Constitution, fundamental rights can be enforced