' M. SOHAIL IQBAL BHATTI, J. --- Through this appeal, appellants have challenged the order dated 17.5.2010 passed by learned Judge Banking Court No, II, Lahore.
2. The brief facts of the case are that respondent No, 2 filed a Suit for Recovery of Rs, 22,26,818/- against the appellants on 19.3.2007. The suit filed by respondent No, 2 was decreed to the tune of Rs, 21,47,693/- against the appellants-defendants along with cost and cost of funds to be determined under Section 3 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
The learned Judge Banking Court No, II, Lahore through order and decree dated 25.2.2008 allowed a period of thirty days to the appellants/defendants to satisfy the decree and it was specifically ordered that in case of failure of the appellants-defendants to satisfy the decree within the stipulated period the decree shall be converted into execution petition. During the execution proceedings the appellants/defendants filed an application under Section 47 of the Civil Procedure Code for modification of the decree on the ground that the decree did not provide for the date of default. The learned Judge Banking Court through order dated 15.12.203 disposed of the application while holding that the date of passing of decree is the date of default and respondent No, 2/decree holder was directed to file the statement of cost of funds. Thereafter respondent No, 2 filed an application under Section 151 of the CPC that although decree does not provide for the date of default but it was mentioned in Para No, 7 of the plaint that 6.4.2006 was date of default. The learned Judge Banking Court through impugned order dated 17.5.2010 retraced its steps and declared that the alleged date of default is 6.4.2006. Hence this appeal.
3. Learned counsel for the appellants argued that by passing the impugned order the learned Judge Banking Court No, II, Lahore had exercised powers in violation to Section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It has been further argued that the initial order dated 15.12.2009 had attained finality as the respondent/plaintiff-bank has not challenged the order dated 15.12.2009. Learned counsel for the appellants has placed reliance upon Zarai Tarigiati Bank Limited through Branch Manager v. Hassan Aftab Fatiana (2009 CLD 36) (Lahore).
4. Conversely, learned counsel for the respondent No, 2 argued that the initial order dated 15.12.2009 was in violation to Section 17 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001. Thus, the order passed by the learned Judge Banking Court was a void order as the same had been passed in contravention to mandatory provisions of Section 17 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and, therefore, the respondent No, 2 did not challenge order dated 15.12.2009 being a void order. It has been further argued that under Section 7(1)(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the Banking Court had all the power vested in a Civil Court. Learned counsel for the respondent No, 2 has relied upon Habib Bank Limited v. Tauqeer Ahmed Siddiqui and another (2009 CLD 312) [Karachi].
5. We have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
6. It would be useful to refer to Section 17 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 which is reproduced below:- "17. FINAL DECREE.--- (1) The final decree passed by a Banking Court shall provide for payment from the date of default of the amounts found to be payable on account of the default in fulfillment of the obligation, and for costs including, in the case of a suit filed by a financial institutions cost of funds determined under Section 3.
(2) The Banking Court may, at the time of passing a final decree, also pass an order of the nature contemplated by sub-section (1) of Section 16 to the extent of the decretal amount."
7. A bare reading of Section 17 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 clearly provides that in a suit filed by a Financial Institution under Financial Institutions (Recovery of Finances) Ordinance, 2001 awarding of cost of funds is mandatory from the date of commission of default by the borrower/customer in fulfilment of the obligation. It is established from Para No, 7 of the plaint wherein it has been specifically mentioned that the appellants committed default in fulfilment of their obligation on 6.4.2006. The learned Division Bench of the Sindh High Court in a judgment reported in Habib Bank Limited v. Tauqeer Ahmed Siddiqui and another (2009 CLD 312)
[Karachi] has observed as under:--- "The view regarding the awarding of cost of funds in terms of Section 17 read with Section 3 of the Ordinance of 2001, being mandatory, also finds support from a recent judgment of this Court in 1st Appeal No, 74 of 2007 (supra), wherein the scope of sections 17 and 3 of the Ordinance of 2001 was examined in a case where the Banking Court had omitted to award cost of funds in favour of the financial institution. It was held that grant of such relief to financial institution is mandatory in nature, therefore, Banking Court had no option but to award such cost of funds from the date of default, according to the State Bank circular as regards cost of funds, issued from time to time."
8. At this stage, it would be useful to refer to the judgment reported in Nisar Ahmed Afzal v. Muslim Commercial Bank through Assistant Vice-President/Chief Manager and 14 others (2014 CLD 390)
[Lahore] wherein the learned Division Bench of this Court has observed as under:--- "12. The F.I.O., 2001 is a Special Law enacted for the resolution of disputes between the customer and Financial Institution; the courts established under the Ordinance ibid are having the jurisdiction of civil and criminal both. Under Section 7(2) the Banking Court has the powers of Code of Civil Procedure where the Ordinance does not provide any procedure; likewise in criminal jurisdiction if the special procedure is not available under the Ordinance 2001, the provisions of Code of Criminal Procedure will be applicable. It is thus clear that where the Ordinance 2001 itself did not provide the specific procedure for resolving any dispute, the Code of Civil Procedure will be fully applicable as per settled principle of law. Under Code of Civil Procedure, the Civil Court in addition to the powers under Section 12(2), C.P.C. Has the inherent powers to set aside, modify or correct the decree."
' Thus, in appropriate cases even the provisions of Section 12(2) of the CPC can be resorted to in banking matters.
9. Section 12(2) of the CPC provides that any order can be challenged on the plea of fraud, misrepresentation or want of jurisdiction.
' In our opinion, if the Court proceeds to act in grave and obvious disregard of a material provision of law the same would amount to "want of jurisdiction". Since the initial order dated 15.12.2009 had been passed in disregard to the mandatory provisions of Section 17 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the same can only be termed as a void order.
' In continuation to the law laid down by the learned Division Bench of this Court in 2014 CLD 390 (Lahore) it would be appropriate to refer to the judgment reported as North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 Supreme Court 418) wherein the august Supreme Court of Pakistan has held that the Court has powers to make such orders as may be necessary for achieving the ends of justice.
' As far as the reliance placed by the learned counsel for the appellants on 2009 CLD 36 [Lahore] it would be useful to reproduce Pam No, 8 of the judgment which is as under-- "Despite the above, the proposition still remains as to how, and by which forum it should be determined if the appellant is entitled to the cost from the date prior to the institution of the suit or the date of the decree. To our mind, the solution can be achieved by resorting to the provisions of Section 47, C.P.C. Under which, the Court has the power to decide the question about the execution, satisfaction and discharge of the decree and such jurisdiction undoubtedly includes the power of the Court to interpret the judgment-decree on the basis of the law applicable, which , in this case, shall be Section 3 of the Ordinance and as claimed by the learned counsel for the respondent, it already has been interpreted in the respondent's favour by virtue of the case-law cited by him. Therefore, we hold that if approached, the Executing Court shall be well within its jurisdiction to adjudicate as to from which date the costs of funds should be allowed to the appellant."
10. But any interpretation of decree made by the Executing Court under Section 47 of the CPC is to be made in accordance with the mandatory provisions of Section 17 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Any other interpretation made while contravening the mandatory provisions of Section 17 would be a nullity. At this stage, it would be appropriate to refer to a judgment reported in Miss Reeta v. Government of Sindh and others (2001 CLC 1825) [Karachi] wherein the learned Division Bench of Sindh High Court while following the dictum laid down by the Hon'ble Supreme Court of Pakistan has held that even a decree passed in contravention to mandatory provisions of law shall be treated as a nullity. The learned Banking Court while passing the impugned order dated 17.5.2010 has admitted this fact that while passing the initial order dated 15.12.2009 the date of default mentioned as 6.4.2006 had completely escaped from its notice. Thus, at the best the order impugned in this appeal can be termed as retracing of steps by the learned Banking Court No-II, Lahore in accordance with law.
11. For what has been discussed above, we are not inclined to interfere with the well reasoned order dated 17.5.2010. Resultantly, the appeal is dismissed.