IJAZ AHMAD J---The petitioner has dual nationality of Pakistan and United Kingdom. The Federation of Pakistan through the State Bank of Pakistan introduced a scheme for the overseas Pakistanis in February, 1998 to promote foreign investment. The petitioner opened the following accounts with UBL:-- 1 2 3 4 5 Receipt No. and dateF.C. Account No.Amount Rate of interest for 3 monthsFDR Value TDR 016213 22-1-199802-190-4001-5 $8,223 6.125% $9,362.72 TDR 015219 03-204-0415-0$ 20,996 8.125% & 21,416.66 TDR 016312 03-204-0429-9$ 26,000 8.125% ------------ Similarly the petitioner opened the following accounts with HBL with three months role over.
Fixed Deposit Receipt No.Dated Amount Rate of Interest Validity 004386/35/156 19-1-1993 19000 7.6250 per annum 3 months till 19-4-1993 031803 12-3-1998 22700 8.0625 per annum 3 months till 12-6-1998 031804 19-03-1998 20000 8.0625 per annum 3 months till 19-6-1998 In addition to above-said instruments/accounts the petitioner also opened two saving account No,110-0703-9, 112-0044-2 and No,AC-12- 6/OP/DT, 13-3-1990 with respondents UBL and HBL. On account of some developments having taken place subsequent to the nuke tests conducted by India and responded by the Federation of Pakistan, Foreign Exchange (Temporary Restrictions)
Ordinance, 1998 was promulgated which was, replaced by Foreign Exchange (Temporary Restrictions) Act (Act IV of 1998). It was supplemented by FE Circular No,12 of 19-5-1998. On account of restrictions imposed through the said Ordinance and the Act, foreign currency accounts were seized. The account-holders filed numberious petitions. The same were dismissed in limine by the learned Single Judge of this Court vide order dated 30-7-1998. The ICAs preferred against the above-referred order and some more writ petitions were heard by a Full Bench of this Court and decided on 27-1-1999. The Federation of Pakistan and some individuals filed appeals and petitions which were converted into appeals and the same were decided vide judgment dated 23-6-1999 reported as (PLD 1999 SC 1026) titled "Federation of Pakistan and others v Shaukat Ali Mian and others". It was held in paragraph No,29(iii) as under:-- "That the foreign currency account holders can retain their foreign currency account deposits and may earn interest/profit thereon in foreign currency as per original arrangement between them and their respective banks, which they can utilize in Pakistan or can remit the same abroad as per our short order."
2. In pursuance of the above-referred judgment passed by the august Supreme Court of Pakistan, the State Bank of Pakistan issued FE Circular No,16 as follows:- "Interest/profit is required to be paid to the foreign currency Account holders at rates already agreed as per original arrangements between them and the respective banks. Our interpretation is that such interest/profits are required to be paid in those cases where the foreign currency accounts continue to exist, and that the amounts of interests/profits are to be credited in foreign exchange to the accounts of the respective Account holders. You are advised to implement the order accordingly. As regards remittance abroad of interest/profit by non-resident Pakistanis and foreigners (including non-resident firms, companies and other institutions) covered by para (v) of the Order, as and when any of the eligible Account holders wishes to remit interest/profits abroad, an application may be sent to the undersigned on Form 'Malong with a covering letter which should indicate the name, nationality and residential status of the Account holders, the balance in the account on the date of application as well as on 28-5-1998, and the period during which such interest/profits were earned. The State Bank will give approval within a week, if the documents are in order. FE-45 deposits will continue to be governed by the agreement reached between the State Bank and commercial banks/NBFIs."
According to the petitioner, he was living abroad and no notice was served upon him by the respondent banks. The petitioner approached the respondent banks for the return of his principal amount along with interest agreed upon at the time of opening the accounts but the same was refused. Having left with no alternate remedy, the petitioner filed the instant petition.
3. It is contended by the learned counsel for the petitioner that the petitioner had opened foreign currency account on l-4-1998, initially for a period of three months and the agreed rate of interest was 8.1250. Similarly accounts were opened with the respondent HBL on 19-1-1993, 12-3-1998 and 19-3-1998, initially for a period of three months, in each case. Before the maturing date could have reached, the Ordinance of 1998 was promulgated and Act IV of 1998 ibid was enacted. No notice subsequent to the State Bank's E.F. Circular No, 6 dated 22-6-1999 was issued by the respondents for receipt or withdrawal of the monies deposited by the petitioner; that on account of failure of the respondent banks to send notice to the petitioner, the original agreement which was for three months at specified rate of interest shall be presumed to have continued; that the petitioner's address was with the banks but no notice was served to the petitioner. In another case, however, the bank was generous enough to send a notice to its account holder, which the petitioner was not lucky enough to have been issued.
4. On the other hand, it is contended by the learned counsel for the banks that this petition is not maintainable as the banks are the private companies and not amenable to the constitutional jurisdiction of this Court; that contractual obligations unless admitted, cannot be enforced by filing the constitutional petition. Relies on "PLD 2011 Supreme Court 44" titled PAKCOM Limited and others v. Federation of Pakistan and others, "PLD 2007 SC 298" titled Zonal Manager, UBL and another v. Mst.
Perveen Akhtar, "2006 CLC 131" titled S.M. Ismail v. Capital Development Authority, Islamabad through Chairman and 5 others and "1998 SCM R 2268" titled Messrs Airport Support Services v. The Airport Manger, Quaid-e-Azam International Airport, Karachi and others. That the petitioner had the knowledge of the developments that had taken place but he never approached the respondents; that a letter addressed by the petitioner to the bank (Annex-C) exhibits the knowledge of the petitioner about the developments that had taken place at least by 30-1-2002. Contends that the instant petition is hit by the principle of laches. Relies on "2012 SCM R 280" titled State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others; that the august Supreme Court judgment (surpa) has been acted upon in all the other cases but the petitioner had not given his option as to the future use of the money lying with the banks; that the respondent banks are ready to pay the usual nominal rate of interest at 0.05% per annum; that one of the petitioner's fixed deposits with HBL for three months made on 19-3-1993 had expired before promulgation of the Ordinance, 1998, therefore, to the extent of money in Pounds sterling 19000, he cannot claim any interest except that of three months at the usual rate of interest.
5. I have heard the learned counsel for the petitioner; the learned Law Officers and also gone through the record.
6.The Government, in its policies especially the fiscal and financial, has to be firm and consistent so that the confidence of the people in the governments of the Federation and the Provinces could .Stay. The respondents, in their zeal to create liberal environment for attracting the investment and to boast the economy and to give protection to these reforms, had enacted the Protection of Economic Reforms Act, 1992. This was supplemented by a beneficiary scheme. It induced the expatriates and other Pakistani National including the petitioner to invest in Pakistan. The petitioner opened these Unizar Foreign Currency Account Term Deposit accounts with UBL in the year 1988 and three fixed deposit accounts with HBL in the year 1993 and 1998. Misfortune came in the very first adventure. Restrictions on withdrawal of the foreign accounts in derogation to the provisions of the Protection of Economic. Reforms Act, 1992 were unleashed on the holders of the foreign currency accounts to their total dismay and disgustion. The august Supreme Court of Pakistan came to the rescue of foreign currency accounts holders through its judgment dated 23-6-1999, "PLD 1999 Supreme Court 1026". The above said judgment bestowed upon the foreign nationals of Pakistan, the relief and gave them a ray of hope that they would have their moneys back. The confidence that those investors tried to have in the respondents, shattered by seizure of their accounts was to take decades to restore. The efforts of the respondents to frustrate the above referred judgment by delaying the repayment of the moneys added insult to the injuries. The respondent State Bank of Pakistan was left with no option but to issue F.E. Circular No,16 dated 24- 6-1999. The petitioner who was living abroad and whose address in U.K. Was with the respondent banks never had any intimation about the decision made by the Banks for dealing with the account holders pursuance to the judgment of the august Supreme Court of Pakistan referred above. The amounts to most of the account holders were returned in pursuance of the judgment made by the august Supreme Court of Pakistan. The petitioner yet wants the same. The Banks have ultimately agreed to pay the petitioner the amounts deposited by him in Pak rupees at the existing Bank rate with the negligible and disgraceful rate of interest at 0.05% per annum as against the agreed one at 8.1250% with UBL and 7.6250 and 8.0625% with UBL. The stance of the learned counsel for the respondents that the petitioner failed to make a prompt demand, and having made the same in the year 2002, had no right for return of the money deposited by him in foreign currencies along with the interest at the agreed rate because he failed to renew the original agreement leaving the respondent Banks ignorant whether the petitioner intended to continue or discontinue the accounts is not acceptable. The petitioner cannot be attributed the delay in making the demand. A letter, dated 30-l-2002 addressed by the petitioner to the Regional Chief of HBL, Rawalpindi (Annex-C) exhibits the demand for return made by the petitioner. He kept on making the correspondence. The laches is not determined with specified length of period only. It is ascertained by combination of time and the behaviour of both the parties. It varies from case to case. Laches may occur within couple of days and this mischief may not come into play even the passage of decades. It was the duty of the respondent Banks who were the custodian of the petitioner's money and who were aware of the change in the legislation C and the issuance of various E.F. Circulars to intimate the petitioner and to seek his option. The Banks, by their practice and experience, have known and learnt the style and behaviour of the people regarding the withdrawal of the moneys whether lying in current, saving or fixed accounts. They know how to rotate the moneys, that's why they have conditioned the withdrawal of money exceeding certain limits with issuance of a prior notice, that's why the moneys are not kept with the banks in the shape of currency notes even when they are deposited in current accounts. Though the fiscal and the Banking systems run on the principle that the moneys after changing numerous hands have finally to end up in the banks yet the people, the account holders have a right to obsess that can also have it back. The petitioner's money was kept lying with the banks though it was initially for a period of three months from the day of opening of the accounts. The respondent bank as they are negligent in informing the petitioner of the rapid changes in the policy and in asking his choice about his money, shall return it to the petitioner along with a rate of interest initially agreed between the respondent banks and the petitioner which in the case of UBL was 8.1250% and in case of HBL, 7.6250% and 8.0625%. The economic emergency which emanated from the nukes tested by the adversary, responded by Pakistan, from the pressure exerted by the world economic giants and the economic sanctions hovering over Pakistan, would have not been made a pretext to make the petitioner suffer alone. The Birken-head drill was the only way out. The weaker who in this case was the petitioner had to be saved, the stronger, the Banks had to bear the brunt. The respondents made it to work the other way round. On the delay of economic crises, when the freezing of accounts was considered inevitable, the Federation had a battalion of Federal Ministers, Ministers for the State and Advisors. This number was never reduced simultaneously with the imposition of restrictions on the petitioner's accounts. The state of emergency and economic crises has to be answered the way Sir Winston Churchill, after the declaration of the end of II World War addressing his Parliament, did said. He said "We have won the war but have lost the economy". A state of economic emergency was declared. If the Federation of Pakistan and the Banks want that the confidence of the people in the banks shall be restored, if they want that the people do not keep their moneys under the pillows, they will have to abide by their promises, howsoever dear it may cost them. In the instant matter, unfortunately, the State Bank of Pakistan, which under section 25 of the Banking Companies Ordinance, LVII of 1962, has the power and the duty to control, the fiscal activities of the banking companies also failed in doing its duties and performance of its functions.
In these circumstances, this petition stands accepted. The respondents UBL and HBL are directed to return the petitioner his money in Pak rupees on the existing inter bank conversion rate along with the interest from the day of their initial deposits at the rate agreed with the petitioner in each case. The return should be made till 15th of June, 2013 in an honourable way without making him beat the tracks leading to the financial institutions.