The appellant is aggrieved of an order dated 20-9-2013 passed by a learned Judge-in-Chambers of this Court. Through the impugned order, a constitutional petition challenging an interim order passed by the learned Judge Banking Court, Gujranwala, granting leave to appear and defend the suit to respondents Nos.2 and 3, was up-held.
2. The brief facts of the case are that respondents Nos.2 and 3 availed a running finance facility in the sum of Rs.4 million from the appellant-Bank, which was renewed from time-to-time. In 2009, on the request of the respondents the facility was enhanced to Rs.4.5 million. On occurrence of default, the Appellant-bank instituted a suit for recovery of Rs.5,040,110.83 before Banking Court-1, Gujranwala. Respondents Nos.2 and 3 filed an application for leave to appear and defend the suit.
In the said application, the defence of the respondents was that the appellant was not entitled to recover mark-up on alleged renewal of the existing facility. They also alleged that mark-up in the sum of Rs.10,59,614 was illegally added and in order to cover the said illegal addition, the facility was shown to have been enhanced. The parties were also found by the learned Banking Court to have been at variance regarding the amount of disbursement after so-called renewal of the finance facility. The learned Banking Court after hearing the learned counsel for the parties and examining the record, came to the ,conclusion that the claim of the appellant to the extent of Rs.40,40,997.83 stood admitted and proceeded to pass an interim decree to that extent. However, having found that respondents had raised serious questions of law and fact relating to calculation of mark-up and recovery of markup on mark-up, (in view of the controversy raised by the respondents relating to renewal, re-structuring/ enhancement), he proceeded to grant unconditional leave to the respondents to defend the suit to the extent of Rs.9,99,113 vide order dated 5-7-2013. The said order was challenged through a constitutional petition before this Court.
The learned Single Bench found that the learned Judge Banking Court had not committed any illegality after having come to the conclusion that the respondents had raised serious and bona fide questions of law and fact which required recording of evidence. She, therefore, dismissed the petition vide order dated 20-9-2013. Through the instant appeal, the appellant challenges the said order.
3. The learned counsel for the appellant submits that the learned Single Bench did not appreciate the distinction drawn by the appellant-Bank between the renewal and re-structuring of the finance facility. He further submits that the findings of the learned Single Bench to the effect that the learned Banking Court had not committed any illegality in passing the impugned order, is not supported by the record. He finally maintains that the respondents had not raised any serious and bona fide questions of law or fact, which may have required recording of evidence. Therefore, the learned Single Bench erred in law in not interfering in the order of the learned Banking Court.
4. The learned counsel for the respondents on the other hand has defended the impugned order. At the very outset, he has raised an objection regarding maintainability of the Intra-Court Appeal on the ground that it is hit by the proviso to section 3(2) of the Law Reforms Ordinance, 1972. He further maintains that the leave granting order was legally sustainable in view of the fact that serious and bona fide questions of law and fact had been raised by the respondents by disputing the calculation of mark--up and the claim of the bank that the facility had been renewed, while in fact the facility had been rolled-over to charge mark-up on mark-up, which is prohibited by law. He further maintains that prima facie, the claim raised by the appellant-Bank included an illegal amount of Rs.9,99,113 by way of mark up on mark up, which the appellant-Bank was required to prove by way of recording evidence. Therefore, there were valid reasons and lawful justification to grant leave to appear and defend the suit to the extent of the disputed amount.
5. We have heard the learned counsel for the parties and gone through the record.
6. The appellant had challenged a leave granting order dated 5-7-2013 passed by the learned Judge Banking Court-I, Gujranwala. Through the said order, the learned Judge Banking Court passed an interim decree in the sum of Rs.40,40,997.83 out of a claim amount of Rs,.50,40,110.83. He, however, came to the conclusion that since the defendants had disputed an amount of Rs.9,99,113 being mark-up charged on the debt and there was prima facie a possibility that mark-up on mark-up had been charged by adopting the device of a rollover of the loan amount, the same required recording of evidence. He also came to the conclusion that the defendants had raised serious questions of law and fact in the matter. Therefore, he granted unconditional leave to appear and defend the suit to the defendants to the extent of Rs.9,99,113. We note that the learned Banking Court has not committed any legal, factual or jurisdictional error in passing the impugned order. We have examined the record appended with this appeal and find that there is lack of clarity in the documents to establish calculation of mark-up, finalization of amounts repaid and the modus operandi adopted by the bank for alleged renewal/restructuring of the facility. The accounts statement does not clearly depict a fresh transaction and the allegation of rollover A cannot be ruled out. Therefore, the parties were rightly granted an opportunity to adduce evidence to prove their respective claims. The bank would have to establish that there was no rollover and mark-up on mark-up was not charged and the respondents may prove otherwise. This fact alone, to our mind furnishes justification for the order of the Banking Court.
7. We also note that there is a bona fide dispute regarding recovery of mark-up on mark-up and whether or not extension of the limit granted by the appellant-Bank, constituted renewal or whether as asserted by the respondent, the so-called renewal was in fact a rollover, which is illegal and does not confer any power on the bank to charge mark-up. We, therefore, find ourselves in agreement with the learned Single Bench in coming to the conclusion that learned Banking Court had exercised its powers judiciously.
8. Another aspect of the matter is that the impugned leave granting order passed by the learned Banking Court is in the nature of an interim order. The question that needs to be examined is whether an interim order can be challenged before this Court, where the statute specifically bars an appeal against such order. On hearing the learned counsel for the parties, we find that the answer to the above question has to be in the negative for the following reasons:-
(i) Section 22 of the F.I.O. provides a right of appeal. However, section 22(6) specifically bars an appeal against an order accepting or rejecting an application for leave to appear and defend the suit. For ease of reference section 22(6) of the F.I.O. is reproduced below:-
(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19.
(ii)It is clear to us that the Legislature has consciously and deliberately blocked the way of multiple appeals against interim orders. The rationale for creating this bar is not hard to understand. The matters before the Banking Courts involve substantial sums of money, which constitute the lifeblood of the economy. Such matters cannot be allowed to be delayed indefinitely by allowing numerous and multiple appeals against every interim or interlocutory order that may be passed by the Court at various stages of the suit. Therefore, in the interest of expeditious decision of the banking suit, the legislature has in its wisdom curtailed the right to file appeals against interim/interlocutory orders. However, in order to safeguard the interests of the aggrieved patty and to fulfil the salutary principle of due process and natural justice, an appeal against the final judgment/decree has been provided, in which all interim orders merge and can be challenged before the Appellate Forum at the appropriate stage when a final order, judgment/decree is passed. The language of section 22(6) clearly and unambiguously points towards this direction.
(iii)It is also settled law that where the right of appeal has intentionally not been provided against interim orders, the trend to challenge such orders in the constitutional jurisdiction leads to defeating the purpose of the law in exercise of extraordinary jurisdiction of this Court, which is discretionary in nature. Reference in this regard may usefully be made to Messrs Sajid Brothers and Co. through Proprietor and 2 others v. Manager, Allied Bank Limited and 8 others (2012 CLD 1858), in which dealing with an identical situation it was held as follows:- "In the present case, the Banking Court has decided the application for leave to defend the suit of respondents Nos.5 and 6 in doing so has struck off the names of these respondents from the list of defendants. Against such order the appeal is expressly barred by law and thus there is no warrant for entertaining a circumvention the law but will also frustrate the same. Yet again, the impugned order is passed by a Judge of this Court which is not a person in terms of Article 199(5) of the Constitution, for this reason also Constitutional Petition will not be maintained. The petition, being not maintainable, is therefore, dismissed".
(iv) The question of maintainability of constitutional petition to challenge interim/interlocutory orders, where right of appeal against such orders has expressly been barred by the relevant statute has been examined in various judgments of the Superior Courts. A brief resume of such judgments would be helpful in stating with clarity the law as it presently stands. In the case of Mohtarma Benazir Bhutto, M.N.A. and Leader of the Opposition, Bilawal House, Karachi v. The State (1999 SCM R 1447), it was held as follows:- "12. It is well settled that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decisions, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. Refer the case of Mushtaq Hussain Bokhari v. The State (1991 SCMR 2136). Muhammad Afzal Zullah, the then Hon'ble Chief Justice, at page 168 of the report observed as follows-.--"
"It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude. This might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal justice. Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even reducing the right of appeals. Cases like the present one do justify such an angry re-action"
In the case of Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCM R 1165), it was held as follows:- "9. The contention of the learned counsel for the appellant that where appeal lies Only against the final order a Constitution petition challenging the interim orders can yet be maintained is erroneous. In the Lahore case PLD 1990 Lah. 352 relied upon by the learned counsel for the appellant itself where a final order was passed pending proceedings in the Constitutional jurisdiction it was held that jurisdiction stood barred final order having come in the field.
There are so many laws on the statute books of the country which provide for an' appeal only against the final order. In the Punjab Urban Rent Restriction Ordinance, 1959 proviso to section 15 reads "provided further that no appeal shall lie from an interlocutory order passed by the Controller. In the Cantonments Rent Restriction Act, 1963, section 23 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court". In Sindh Rented Premises Ordinance, 1979, section 21 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order prefer an appeal to. the High Court. In the Banking Companies (Recovery of Loans) Ordinance, 1979, proviso to section 12 reads: "Provided that no appeal shall lie from an interlocutory order., which does not dispose of the entire case before the Special Court". A notification under the West Pakistan Waqf Properties Ordinance, 1961 could be challenged only by means of a petition under section 7 in the District Court and an appeal lay against the decision to the High Court. Both the Courts were placed under duty not to issue a temporary injunction or order restraining the Chief Administrator from taking over of assuming the administration, control, management and maintenance of property in respect of which a notification had been issued under section 6. While the suit or an appeal, as the case may be, was pending, such prohibitions, limitations and regulatory provisions with respect to appeal and grant of relief against the interlocutory orders were considered vis-a-vis the maintainability of the Writ Petition in the case Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450. On examining the statute, the Supreme Court held as hereunder:-- "As the said Ordinance has taken away the right of petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings on the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law."
The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders."
In the case of Muhammad Siddiq Awan v. Mst. Shahjehan Begum and another (1997 CLC 436), a learned Bench of the Sindh High Court came to the following conclusion:- "3. The Legislature manifested its intent unequivocally by prescribing two broad categories of, all orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and 'all other forming the larger category non-appealable. The scheme of such a categorization the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar (PLD 1978 SC 185). It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutto v. Chief Administrator Auquf etc. (1976 SCMR 450)."
In the case of Bank of Punjab through Authorized Attorney v. Messrs AMZ Ventures Limited and another (2013 CLD 2033), while examining the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 with reference to interim orders, a learned Division Bench of the Sindh High Court held as follows:- "(14) A perusal of above quoted section 22 of the F.1.0., 2001, reveals that under subsection (1) thereof an appeal could be filed by a person aggrieved by any "judgment, decree, sentence, or final order passed by a Banking Court", within thirty days of such judgment, decree, sentence or final order, to the High Court, however, subsection (6) of the said section emphatically and in unambiguous terms bars filing of any "appeal, review or revision ... against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19." (underline to add emphasis).
(15)Thus, it would be seen that the Legislature has provided an appeal only against a judgment, decree, sentence or final order passed by a Banking Court but no appeal is provided against an interlocutory order rather the right of appeal has been taken away from the litigants in respect of any interlocutory order. It is worth mentioning that appeal is not provided even against an order which dismisses the leave to defend application because at this juncture the suit has not yet been decreed in favour of the opposing party. It is only the final decree which has been made appealable. The purpose behind such wisdom seems to be expeditious disposal of cases under the F.I.O., 2001 and to avoid unnecessary delays caused by filing interlocutory applications and the appeals filed against orders passed on such applications.
(16) In this regard reference may be made to the case of Ms. Afshan Ahmed (supra), which was relied upon by learned counsel for the respondent No.2, wherein maintainability of an appeal was challenged under section 21(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and a learned Division Bench of this Court held as under:- 'It is thus to be observed that section 21(1) has provided the right of appeal against a decree/order/sentence passed by a Banking Court. Any other order or decision not falling within the definition of the decree/order/sentence as specified cannot be challenged by way of an appeal under section 21 of the said Act. The impugned order obviously does not fall within any of the categories of the order specified in subsection (1) of section 21 so as to be appealable. It is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to the principles of interpretation of statute the Court would not act in a manner by which the object of a statute is defeated and the same is rendered nugatory. In the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another reported in 1996 SCMR 1165, the Supreme Court pronounced that when a statute does not provide an appeal against an interlocutory order the same could not also be challenged by way of a Constitutional petition as allowing such an order to be assailed by way of a Constitutional petition would amount to defeating the object of the statute. A similar pronouncement was made by the Supreme Court in the case of Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others reported in 1998 SCMR 328. In this case the Hon'ble Supreme Court, observed that when no appeal was provided against an interlocutory order then the same could only be challenged in the appeal to be filed against the final order/judgment."
(17)Reference was also made to the provisions of Order XLIII, C. P. C. to argue that in view of such provisions, an appeal can be filed before the High Court after due notice to the respondent but the only relevancy of this provision in the C. P. C. with reference to subsection (2) of the section 22 of the 2001 is that before filing an appeal before the High Court notice as envisaged under Order XLIII is a mandatory requirement. We would like to make it clear that it is a trite law that special laws prevail over the general law and in case of banking matters the Financial Institutions (Recovery of Finances) Ordinance, 2001 is the special law and the Civil Procedure Code even if its provisions are not specifically ousted by any section of the F.I.O., 2001 will still be a general law so far as banking matters are concerned and therefore prima facie the provisions of section 22 of the F.I.O., 2001 will prevail over the general law and the sections providing for appeals and revisions under the Civil Procedure Code including Order XLIII, Rule 1(r), section 115 and section 96 of Civil Procedure Code and therefore if there is a bar for filing an appeal against an interlocutory order under subsection (6) of section 22 of the F.I.O., 2001 then in our humble opinion it cannot be circumvented by filing appeals or revisions under the provisions of Civil Procedure Code, even if the orders of a Banking Judge has been made on an application filed under any provisions of the C. P . C.
(18)In yet another case, i.e. Pakistan Fisheries Ltd and others v. United Bank Limited (PLD 1993 SC 109), the Hon'ble Supreme Court held as under:-- "14. The case may also be examined from another angle. The object of enacting the Banking Companies (Recovery of Loans) Ordinance, 1979, is to provide speedy measures for recovery of outstanding loans of the Banking Companies as their recovery suits remained pending in the Civil Courts for years together. If the orders in the nature of interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made would be frustrated. The appellate power conferred on the High Court is only to the extent of entertaining appeal against the final order and judgment of the special Court and that too subject to the condition precedent prescribed by section 12 that the appellant deposits in the High Court an amount equivalent to the decretal amount or with the leave of the Court furnishes security equal in value to such amount. In Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others (PLD 1981 SC 359) this Court examined the issue as to the maintainability or otherwise of a revision under section 115, C.P.C., against an interlocutory order; considered in some depth the scheme the object and the relevant provisions of the Ordinance and came to the conclusion:- It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decision of the Special Court should be open to appeal before the High Court. This is evident from subsection
(1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these. provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. Thus, on consideration of the provisions of the Ordinance itself the revisional jurisdiction of the High Court in regard to such orders is excluded."
(19) The authoritative pronouncement in the above cited judgment leaves no room for speculation that for assailing interlocutory orders passed under the Banking laws no right of appeal vests in the litigant and in fact it is specifically barred and resort cannot be made to the revisional and appellate procedure of the C. P. C. or to the constitutional jurisdiction by filing a petition under Article 199 of the Constitution to circumvent this specific bar under the banking law."
In the case of Dadex Eternit Limited v. Syed Haroon Ahmed and others (PLD 2011 Karachi 435), it was held as follows:- "34. Next question of significance that attraction of this Bench is the maintainability of this petition.
It was contended by Mr. Jamsheed learned Counsel for the petitioner that no appeal is provided against an interlocutory order under the PEP Act, 1997 and appeal is only provided against the final order of the Environmental Tribunal. It may be observed that the PEP Act of 1997 is a special law and akin to many other special laws focusing on specialized subjects and in order to expedite resolution of the controversy as a whole fragmented decision are not considered conducive, therefore in many legislation for instance in cases under section 22 of Sindh Rented Premises Ordinance 1979 no appeal against the interlocutory order is provided. Likewise under sections 22(1) and (6) appeal against final order is provided and no appeal revision or review against the interlocutory order is provided under the Financial Institutions (Recovery of Finances) Ordinance 2001. Superior Courts in their Constitutional Jurisdiction have always discouraged the challenge to an interlocutory order unless the impugned order is palpably and patently perverse, void or unlawful]. We may refer to a case in point reported in 1998 SCMR 328 (Muhammad Iftikhar Mohmand v. Javed Muhammad and others), in which Civil Petition was filed against an order of Election Tribunal, Peshawar during pendency of Election Petition. The Hon'ble Supreme Court held that Election Petition was still pending before the Election Tribunal and appeal having been provided against the final decision of such Tribunal before Supreme Court, petitioner, in the event of final decision going against him, would be entitled to raise all pleas available to him in appeal before Supreme Court including preliminary objection relating to maintainability of Election Petition which had been overruled by Tribunal by impugned judgment. On this ground, leave was refused. The next judgment on the same proposition is reported in 2002 CLD 137 (Ms. Afshan Ahmed v. Messrs Habib Bank Limited and another), the Divisional Bench of this Court has held that where statute does not provide appeal against interlocutory order, then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. In the same judgment, it is further held that Court should not act in a manner by which the object of a statute is defeated and the same is rendered nugatory. In another judgment reported in PLD 1994 Karachi 67 (Syed Ali Azhar Naqvi v.
The Government of Pakistan and others), the Divisional Bench of this Court has held that where any statute provides a procedure for doing a thing in a particular manner that thing should be done in that manner and in no other way or should not be done at all. Constitutional jurisdiction could not be invoked where it could have the effect of defeating or deflecting legislative intent. In another judgment reported in 2004 CLC 1353 (Ardeshir Cowasjee and others v. Sindh Province and others), the Divisional Bench of this Court has held that every effort should be made to save rather than to destroy a Legislative instrument and the doctrine of reading it down could also be resorted to for doing so. Case of Khalid Mamood v. Collector of Customs 1996 SCMR 1881 is also illustrative case on the point in issue wherein apex court deprecated invocation of writ jurisdiction in cases where the High Court is ultimate repository of appellate, revisional or referral power or jurisdiction, it in rarest of cases where such jurisdiction could be invoked. In the instant matter no extraordinary circumstances prevail to persuade us to exercise extraordinary jurisdiction."
(v)We also find that the interests of the appellant will not in, any manner be prejudiced nor will it be non-suited. The only effect of the leave granting order will be that the appellant would have to prove its claim of mark-up to the extent of Rs.9,99,133 through production of evidence. Likewise, the respondents will, in all fairness, get an opportunity to prove (as they claim) that mark-up had illegally been charged. Further, the aggrieved party will, after passing of the final order/decree, have the right to file an appeal under section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 before this Court. Further, if the Appeal before this Court does not succeed, there is a further possibility of approaching the honourable Supreme Court of Pakistan. On the other hand, if the course of action adopted by the appellant is allowed (i.e. challenging interim orders through constitutional petitions), it would not only defeat and nullify the wisdom and policy behind section 22(6) of the F.I.O. but would also amount to providing two additional appeals to challenge the orders of the Banking Court which neither stands the test of reason nor logic. This approach which is in direct conflict with the wisdom and intention of the legislature and the express and unambiguous letter of the law cannot, therefore, be permitted.
(vi)In the above context, reference may also be made to a recent judgment of the honourable Supreme Court of Pakistan rendered in the case of Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCM R 233) in which while upholding judgments of a full Bench of this Court as well as the Hon'ble Sindh High Court, the Hon'ble Supreme Court of Pakistan held that where the law does not provide a right of appeal against an interim order, the jurisdiction of this Court cannot be invoked to bypass such bar. Although, the aforenoted judgment has been rendered in the context of Election Laws, where interim orders passed by the Election Tribunals were challenged in the constitutional jurisdiction and such challenges were utilized to obstruct and delay decision of election petitions pending before Election Tribunals, the principles of law enunciated therein are equally applicable to the Banking Laws, where appeals against interim orders have also been specifically barred in the interest of timely and expeditious decision of banking cases.
9. For reasons recorded above, we do not find any merit in this IE Intra-Court Appeal. It is accordingly dismissed.