' Through this writ petition, the petitioner has sought the indulgence of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 making the following prayer:- "In view of the above submissions, it is respectfully prayed that while accepting this constitutional petition, the Impugned Orders dated 25-2-2011, 4-3-2011 and 13-2-2015 may graciously be declared against the express mandate of F.1.0., 2001, without jurisdiction, coram non judice, void ab initio, gross miscarriage of justice to the extent of issuing directions to petitioner/ defendant No,9 to deposit of amounts with Deputy Registrar (Judicial). It is further respectfully prayed that the amounts i,e, Rs, 139,419,334 already deposited with Deputy Registrar (Judicial) by the petitioner/defendant No,9 may kindly be ordered to be returned to the petitioner/defendant No,9 along with profit accrued thereon, if any.
' It is further respectfully prayed that operation of impugned order dated 13-2-2015 to the extent of deposit of entire outstanding amount under the Guarantee may kindly be suspcaded till final decision of this petition.
' An ad-interim relief may also be granted to the petitioner in the interest of justice, equity and fair play.
' Any other relief which this Hon'ble Court deem fit and proper in the circumstances may also be granted to the petitioner."
2. The facts of the case are that respondent No,1 filed a Suit for Declaration, Cancellation of Documents and Permanent Injunction, Damages against the petitioner and respondents Nos.2 to 9 under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The petitioner had been impleaded as defendant No,9 having issued a Bank Guarantee in favour of respondent No,2 to secure the finance facility provided to respondent No, 1 . Along with the Suit bearing C.O.S. No,25 of 2011 C.M. No,95-B of 2011 was filed for grant of interim relief with the prayer to restrain the petitioner from encashing the Bank Guarantee. The learned Single Judge/Banking Court upon C.M.
No,95-B of 2011 on 17-2-2011 passed the following order:- "Issue Notice for 24-2-2011 by ordinary means, courier and special messenger. Adverse action may be taken by the defendant banks but payment under the guarantee shall not be made until 24-2- 2011."
3. Thereafter C. M. No, 95-B of 2011 came up for hearing on 25-2-2011 and after hearing the learned counsel for the parties the following order was passed on 25-2-2011:- "After hearing the learned counsel for the parties, it is evident that the defendants Nos.1 to 8 bank claim that Rs,143,755,736 is overdue as principal amount and the unpaid rentals under the Sukuk which is realizable as per Appendix-A of the Undertaking dated 9-10-2007. For the reason the defendant bank have issued a Sakuk termination notice dated 7-2-2011 demanding from defendant No,9 the guarantor bank, inter alia, the said amount.
(2) Learned counsel for the plaintiff has referred to expert opinions on Islamic Law regarding characteristics of Mushraka to assail the legality of the payment terms under the Sukuk. On the other hand, learned counsel for the defendant banks has referred to material justifying such terms as being intrinsic to Sukuk-ul-Ajara. The court would like to hear the learned counsel for the parties, inter alia, on the point whether a partly performed promise by the plaintiff, made upon consideration received from the defendant banks, is rendered void ab initio under principles that have yet not been incorporated in our jurisprudence. Come up for hearing on 2-3-2011, before which date the defendant banks shall file their reply to the instant applicant. The ad interim order dated 17-2-2011 is recalled subject to modification after considering the pleadings.
(3) The Undertaking is prima facie enforceable for the buyout price of Sukuk units. The outstanding sukuk repurchase amount is accepted as being Rs,108,333,334 which shall forthwith be deposited by the defendant No,9 guarantor bank in an escrow bank account established in the name of and by the Deputy Registrar (Judicial) of this Court. The account shall be profit bearing. For the time being, the Sakuk termination notice dated 7-2-2011 shall be effective only to the extent of a demand for an amount of Rs,108,333,334."
4. The application bearing C.M. No,725-B of 2014 was filed by respondents Nos.2 to 9 for recalling of the orders dated 17-2-2011 and 25-2-2011 passed by learned Single Judge/Banking Court with the permission to encash the Bank Guarantee issued by the petitioner. An order was passed on 4-3- 2011 upon C.M. No,95-B of 2011 in the following terms:- "PLA by defendants Nos. 1 and 2 has been filed and so has reply to the stay application by defendants Nos. ], 2 and 9. Learned counsel for the parties have been heard in the stay matter.
Under the Payment Agreement dated 9-10-2007 the obligation of the plaintiff to pay rentals continues throughout the tenure of the Sakuk arrangement. The plaintiff has paid all rentals until 12-7-2010. Thereafter rental obligations due on 12-10-2010 and 12-1-2011 have not been discharged.
Accordingly, apart from the Sakuk payments, that were also due on the said dates amounting to Rs,108,333,334 already noted in the order of the Court dated 25-2-2011, there are overdue rental payments in the amount of Rs,31.086 million. Since the basis of interim order dated 25-2-2011 is to secure the payments due under the Sakuk arrangement, in order for the Court in the meanwhile, to appreciate a challenge to vires of such agreement by the plaintiff, therefore, it is appropriate that the overdue rental dues are also duly secured and deposited with the Deputy Registrar (Judicial) of this Court for credit to the profit bearing escrow account established by the said DR(J). Next quarterly payment far Sakuk units and rentals is due on 10-4-2011. The appropriate course is for the challnge by the plaintiff to be heard and ruled upon prior to the next date. Come up on 9-3-2011."
5. The petitioner-bank complied with the orders dated 25-2-2011 and 4-3-2011. C.M. No,725-B of 2014 came up for hearing before the learned Single Judge/Banking Court which was dismissed through impugned order dated 13-2-2015. However, it was observed by the learned Single Judge/Banking Court in Para No,17 of the order as under:- "17. It is however, observed that the total amount of the bank guarantee has become due and the same has to be secured as per the order of this court dated 4-3-2011. Therefore, defendant No,9 (Bank of Punjab) is directed to deposit the entire outstanding amount of the bank guarantee with the DR(J) of this Court within ten (10) days from the date of this order. The Deputy Registrar (Judicial) shall credit the amount in the already established profit bearing escrow account."
' Hence, this appeal.
6. The learned counsel for the petitioner at the very out set was directed to advance arguments regarding maintainability of this writ petition. The learned counsel for the petitioner argued that the impugned order is wholly without jurisdiction and coram non judice which in fact amounts to enforcement of the security through interim orders without filing of a recovery suit against the petitioner. It has been further argued that since blatant illegalities had been committed and the orders dated 25-2-2011, 4-3-2011 and 13-2-2015 are without jurisdiction, therefore, the present writ petition is maintainable. The learned counsel has relied upon Bank of Punjab v. International Ceramics Ltd. And others (2013 CLD 1472) [Lahore].
7. We have, considered the arguments advanced by the learned counsel for the petitioner and have also perused the available record.
8. There is no denial to the fact that the petitioner has executed a Bank Guarantee in favour of respondent No,2 and it would be useful to reproduce the following recital of the Bank Guarantee:- "IN CONSIDERATION of the above premises, the Guarantor hereby irrevocably and unconditionally guarantees the due performance and discharge by the Issuer of its obligation to deposit with the Trustee for the benefit of the Certificate Holders the Buy Out price and the Rental Payments payable by the Issuer to the Certificate holders and the Trustee on or before the Buy Out Payment Dates and the Payment Dates respectively, in terms of the Trust Deed falling due within the validity of this Guarantee and the Guarantor agrees and undertakes to pay to the Trustee on its first simple demand in writing, amounts demanded under this Guarantee up to the maximum of the Guaranteed Amount in respect of the same falling due within the validity of this Guarantee. All amounts claimed under this Guarantee subject to the maximum of the Guaranteed Amount shall be payable upon the Trustee's simple demand in writing stating that the amount claimed under this Guarantee is due and payable by the Issuer in respect of the Buy Out Price and/or the Rental Payments, which have not been deposited by the Issuer with the Trustee on or before the Buy Out Payment Date and the Payment Date respectively; Payments of amounts demanded under this Guarantee shall be made without reference to the Issuer and without any objection or protest and notwithstanding any litigation or objection by the Issuer or any other party. In the event of delay in payment of any amount demanded under this Guarantee the Guarantor further undertakes to pay to the Charity Fund of the Trustee a sum calculated @ 18% per annum for the period of delay in payment of the amount demanded under this Guarantee. The Charity Fund shall be used exclusively for the purposes of charity to be approved by the Shariah Supervisory Board of Banklslami Pakistan Limited. It is further agreed and acknowledged that the Trustee may make several demands/claims under this Guarantee to the extent of the Guaranteed Amount."
9. The perusal of the above referred recital makes it abundantly clear that upon simple demand the petitioner is under an obligation to pay the amount secured through the Bank Guarantee.
However, it was before any demand could have been raised respondent No,1 filed a Suit for Declaration, Cancellation of Documents and Permanent Injunction, Damages in which the petitioner had been impleaded in the array of defendants and the learned Judge Banking Court after hearing the arguments of all the parties passed the orders dated 25-2-2011 and 4-3-2011 upon C.M. No,95-B of 2011 and it is not out of place to mention here that the petitioner had complied with both the orders and has never challenged these orders till date.
10. At this stage, it would be useful to reproduce subsection (6) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001:- "22. Appear.- - - (1) .....................................................................................
(2) ........................................................................................................................
(3) ........................................................................................................................
(4) ........................................................................................................................
(5) .............................................................................................................................
(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.
(7) .
11. The expression interlocutory order has been used in section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
' Interlocutory order has not been defined in the Civil Procedure Code or in the Financial Institutions (Recovery of Finances) Ordinance, 2001. However, this expression has received considerable judicial interpretation in number of judgments. In Messrs National Security Insurance Co. Ltd. V.
Messrs Hoechst Pakistan Ltd. And others (PLD 1990 Supreme Court 709) the Hon'ble Supreme Court has held as under:- "An order which does not decide the matter finally and the proceedings still remained to be tried and the rights in dispute between the parties have yet to be determined is not a final order and that it is an interlocutory order in nature against which an appeal in the court is not competent."
12. The tenor of the orders dated 25-2-2011, 4-3-2011 and 13-2-2015 makes it manifest that these orders do not come within the ambit of final order as the rights of the respective parties are yet to be determined by the Banking Court.
13. At this stage, it would not be out of place to mention that had the suit been not filed by the respondent No,1; the petitioner was under the contractual obligation to pay any amount secured under the Bank Guarantee executed in favour of respondent No,2.
14. As we have discussed above that the orders impugned in this writ petition are interlocutory in nature against which no appeal has been provided by a special statute; therefore, the same cannot be challenged by filing a constitutional petition as allowing such an order to be impugned through a constitutional petition would amount to deflect the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which does not provide for an appeal against the interlocutory order.
15. While dilating upon the exercise of constitutional jurisdiction, the august Supreme Court of Pakistan in a case reported as Sheikh Gulzar Ali & Co. Ltd. And others v. Special Judge, Special Court of Banking and another (1991 SCMR 590) held as under:- "Art. 199---Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.6---Constitutional jurisdiction, exercise of-- Mere erroneous exercise of jurisdiction does not render the order passed by a Civil Court of competent jurisdiction to be illegal and without lawful authority so as to be amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution."
16. If the constitutional petitions are allowed to be entertained against the interlocutory orders passed by the Banking Court, including an order granting or rejecting the application for grant of leave to defend, then the said course of action would itself negate the provisions of Banking Statutes which have been promulgated from time to time for the speedy disposal of the cases relating to the Financial Institutions and for the recovery of public money; which would seriously defeat the clear legislative intent. This view was affirmed in a case reported as Crescent Factories Vegetable Ghee Mills and 5 others v. National Bank of Pakistan, District Courts Branch, Sahiwal and another (PLD 1985 Lahore 150) wherein it has been held as under:- "interlocutory order passed by Special Court during the trial of the suit unamenable to appeal/revision, if allowed to be brought under challenge by recourse to extraordinary jurisdiction of the High Court will seriously defeat and deflect clear legislative intent discernible from the provisions of Ordinance."
17. The honourable Supreme Court of Pakistan in a judgment reported in Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) has held that if the language used in the statute is such that it leads no room for doubt as to the intention of the legislature to oust the jurisdiction of the Court in all circumstances, then that will have to be given effect and even acts perform without jurisdiction or mala fides will not be open to judicial scrutiny.
18. The Court in. a judgment report in Muslim Commercial Bank Ltd. Through Chief Manager and Principal Officer v. Judge Banking Court No,II Faisalabad and 8 others (2002 CLD 991 Lahore) has held that if the constitutional petitions are to be entertained against the interlocutory orders passed by the Judge Banking Court it would deflect the legislative intent to promulgate the Ordinance, 2001.
19. We are of the considered view that in the peculiar circumstances of this case the learned Single Judge/Banking Court had passed the orders dated 17-2-2011, 25-2-2011, 4-3-2011 and 13-2-2015 in exercise of its discretionary powers. The Hon'ble Supreme Court of Pakistan in a judgment reported in Pakistan through Secretary Ministry of Food and Agriculture v. Special Court (Banking) Sindh and others (1991 SCMR 2355) has observed as under:- "The High Court on examination of the provisions of section 12 and relying on the proviso to section 12 of the Ordinance held that proviso to subsection (1) of section 12 of the Ordinance bars and appeal from an interlocutory order which does not dispose of entire case before the Special Court.
The High Court further held that the important expression in the proviso is "entire case" and that since the order passed on the application did not dispose of the entire case, the order was not appealable and therefore respondent-4 could challenge the same by way of a Constitution Petition. After considering the case on merits, the High Court allowed the petition and set aside the order dated 8-11-1983 passed by the Special Court and directed the Special Judge to consider the application in the light of the observations made in the impugned judgment."
20. We are of the considered view that the discretion vested in the court, tribunal or authority if not tainted with malice cannot be interfered by this Court in its extraordinary constitutional jurisdiction.
At this stage, it would not be out of place to mention here that the Bank Guarantee issued by the petitioner is an independent contract whose operation has not been stayed and the orders impugned in this writ petition have been passed by the learned Single Judge/Banking Court which have advanced the interest of the petitioner as the amount payable under the Bank Guarantee has been deposited with the Deputy Registrar (Judicial) of this Court which otherwise is payable by the petitioner and by complying with the orders dated 25-2-2011 and 4-3-2011; the petitioner has itself admitted that the petitioner is under an obligation to make payment secured under the said Bank Guarantee.
21. The law relating to the Bank Guarantees has been elaborately discussed by the Hon'ble Supreme Court of Pakistan in a judgment reported in Pak Consulting and Engineering (Pvt.) Ltd. v.
Pakistan Steel Mills and another (2002 SCMR 1781) wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "Undoubtedly, at present prevailing view concerning encashment of the Bank-Guarantee in terms of section 126 of the Contract Act is that a Bank- Guarantee is an independent contract between the Bank and the party in whose favour guarantee has been furnished, therefore, encashment of irrevocable Bank Guarantee cannot be declined by the bank on the pretext that the original parties to the main contract are litigating with each other, as it has been held in the case of Messrs National Construction Co. Ltd. (ibid)."
22. In another case reported in United Bank Limited v. Pakistan Industrial Credit and Investment Corporation Ltd. And another (PLD 2002 Supreme Court 1100) the Hon'ble Supreme Court has observed as under:- "There are three parties as envisaged by section 126 of the Contract Act in a contract of guarantee i,e, the creditor the surety and the principal-debtor. In the case in hand, PICIC is the creditor while the Bank guarantee was provided by the United Bank Limited, the surety in the present case.
Thisguarantee has been executed for the benefit of respondent No,2, Fazal Vanaspati Limited, now under liquidation. The essence of the guarantee is that the guarantor has agreed to discharge the liability of the debtor if the latter fails in performing his liability. It all depends upon the terms of the guarantee. The guarantor cannot be made liable beyond the terms of his guarantee. Whatever the guarantor has undertaken, the same has to be performed. Admittedly the guarantee was executed by the appellant-Bank, the satisfaction of the same cannot be avoided on mere technicalities. Prudential Commercial Bank Limited v. Hydari Ghee Industries Limited and others (1999 MLD 1694.)"
23. It would not be out of place to mention here that C.M. No,725-B of 2014 had been filed by respondent No,2 which was dismissed on the ground that the same would 'amount to review of the order dated 25-2-2011 and 4-3-2011 passed by the learned Single Judge/Banking Court and we are of the opinion that the last order dated 13-2-2015 directing the petitioner to deposit the amount of Bank C Guarantee with the Deputy Registrar (Judi) of this Court has not occasioned any injustice to the petitioner.
24. For what has been discussed above, we are not inclined to interfere with the impugned orders.
Resultantly, the writ petition stands dismissed in limine. However, it is expected that the suit filed by respondent No,1 shall be decided as expeditiously as possible, preferably within a period of three months.