' SHAMS MEHMOOD MIRZA, J. --- This regular first appeal filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) calls into question judgment and decree dated 06.07.2011 passed by the Banking Court whereby the suit filed by the respondent bank against the appellant was decreed.
2. Facts in brief are that the respondent bank filed a suit for recovery of Rs, 4,170,541.79 against the appellant due under a running finance (RF) facility. The appellant contested the suit by filing his application for leave to defend, which application was ultimately dismissed by the Banking Court on 06.07.2011 and consequently judgment and decree was passed in favour of respondent bank, hence this appeal.
3. Learned counsel for the appellant contended that the suit was not filed by a duly authorized person and that the statement of account was not prepared in accordance with law. Learned counsel for the respondent bank, on the other hand, supported the judgment and decree passed by the Banking Court.
4. Arguments heard and record perused.
5. The objection regarding the authorization of the officers who file suits on behalf of financial institutions on the basis of power-of-attorney is persistently raised regardless of the changes Section 9 of the Ordinance has introduced with regard to institution of suits. It is, therefore, imperative that an authoritative pronouncement be made on this issue. A survey of the earlier banking laws and the provisions contained therein regarding authorization for filing suits would be appropriate, before proceeding any further in the matter, in order to set out the historical context in which the Ordinance was promulgated. It would also provide useful guidelines for interpreting Section 9 of the Ordinance. Banking Companies (Recovery of Loans) Ordinance, 1979 was the foremost law which created a special forum for trying banking suits. The procedure adopted under the 1979 Ordinance was the same as provided for in Order 37 of the Code of Civil Procedure, 1908. It did not contain any special provision with regard to the institution of suits to be filed by the banks/financial institutions. This aspect was thus governed by the normal rules reserved for institution of cases on behalf of the companies and body corporate. With the introduction of Islamic banking, another special law (Banking Tribunals Ordinance, 1984) was promulgated for adjudication of suits filed by the banks/financial institutions based on mark-up transactions.
Section 6 thereof for the first time made three categories of officers (branch manager, Assistant Vice President and Assistant Manager) competent to file the suits in addition to any other officer authorized by the Board of Directors. The said provision reads as under:-
6. Procedure of Banking Tribunal. (1) Where a customer commits default in fulfilling any obligation to a banking company, the banking company may file against such customer with the Banking Tribunal a plaint which shall be verified on oath by the Branch Manager or an officer of the rank of Assistant Vice President or Assistant Manager or such other officer as the Board of Directors of the banking company may authorise in this behalf.
' The two laws continued to operate side by side until the legislature introduced the Banking Companies (Recovery of Loans, Advances, Credits & Finances) Act, 1997 which created a single banking Court to adjudicate upon suits pertaining to interest and mark-up based finance facilities.
The 1997 Act curtailed the category of designated officers of a financial institution by authorizing only the branch manager to file the suits. In addition thereto, it provided that any other officer could also file the suit if he/she was duly authorized to do so by the Board of Directors. The relevant provision is reproduced hereunder:-
9. Procedure of Banking Courts.---(1) Where a borrower or a customer of a banking company commits a default in fulfilling any obligation with regard to any loan or finance the banking comoany or, as the case may be, the borrower or customer, may institute a suit in the Banking Court by presenting a plaint duly Supported by a statement, of account shall be verified on oath in the case of a banking company by the Branch Manager or such other officer as the Board of Director of a banking company may authorize in this behalf.
6. The Ordinance was promulgated on 30.08.2001 and made significant changes in the 1997 Act, the scope whereof is not the subject-matter of this judgment. Suffice it to state that Section 9 of the Ordinance was once again modified by empowering three categories of persons to file suits on behalf of the financial institutions (a) the branch manager (b) an officer authorized by a power-of- attorney and (c) an officer who is otherwise authorized by a financial institution. Section 9(1) reads as under:--
9. Procedure of Banking Courts.
(1) Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this ,behalf by power-of-attorney or otherwise.
' It can, therefore, be seen that apart from the 1979 Ordinance, all the subsequent banking laws provided for specific officers of a financial institution including the branch manager who could validly institute the suits by virtue of their designation. The departure that Section 9 of the Ordinance made from the previous laws was to make eligible an officer holding a. Power-of- attorney to file the suit. The reason why this was done shall be adverted to in the later part of this judgment.
7. The preamble of the Ordinance reads as "WHEREAS it is expedient to repeal and with certain modifications, re-enact the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for the purposes hereinafter appearing. "A comparison of Section 9 in both the enactments will be in order so as to ascertain the nature of modifications introduced through the Ordinance. Under the 1997 Act, the branch manager and "such other officer as the Board of Director of a banking company may authorize in this behalf" were competent to file the suit.
Through the Ordinance, a category of officers holding power-of-attorney was added for institution of suits but crucially the words or such other officer as the Board of Director of a banking company may authorize in this behalf were Omitted. It is settled principle of statutory interpretation that when the legislature employs certain language in a particular provision of a statute but omits it in the re-enacted statute it is presumed that the legislature acted intentionally and purposely in the disparate inclusion or exclusion (see Keene Corp. v. United States, 508 U.S.200, 208). It is thus manifest that when the legislature acts to amend a statute, it is intended that the amendment will have real and substantial effect. In Pakistan Tobacco Co. Limited v. Karachi Municipal Corporation PLD 1967 SC 241, it was held that:--- ' The conscious deletion of the provisions.Contained in Section 93 of the Section 96 of the Act of 1933, relating to the imposition of terminal tax, and its deliberate exclusion from the Third Schedule, appended to the Ordinance, clearly manifests an intention on the part of the law-giver to exclude the terminal tax from the category of taxes which can be levied by a municipal authority functioning under the Ordinance. A legislature is deemed to be aware of the previous state of the law and if knowing this it makes a change when repealing it and reenacting some of its provisions the intention is clearly to effect a change. It follows, therefore, that the previous provisions relating to the imposition of a terminal tax were deliberately removed to denude the Municipal Authorities of this power.- ' Similarly, in S. Zafar ljaz v. Chairman Steel Mills Corporation 1988 PLC (C.S.) 777, it was held that "Further, when phraseology of the law is changed by an amendment the presumption will be that some change in the law is intended. It is an ordinary rule of construction that a change of language in the same code or Act may be presented to indicate a change of intention on the part of the Legislature."
8. Section 9 in both the 1997 Act and the Ordinance by its terms differed only by inclusion in the latter law the category of officers who are authorized through a power-of-attorney to institute the suit and by omission of officers who were authorized by the Board of Directors of a financial institution. This addition in Section 9 of the Ordinance is indicative of the intent of the Legislature and conveys a definite meaning that these officers are competent to institute suits on behalf of the financial institutions on the strength of the power-of-attorney. It necessarily follows that these officers need not append anything else other than the power-of-attorney to demonstrate their authority to institute the suit under Section 9 of the Ordinance. Had it not been so, Section 9 of the Ordinance would have required production of further documents other than the power-of-attorney to demonstrate the authorization of the person executing the power-of-attorney. This interpretation is further bolstered by the exclusion of words "as the Board of Director of a banking company may authorize in this behalf" from Section 9 of the Ordinance, which words were present in Section 9 of the 1997 Act. Due authorization of the officer to file the suit thus flows from the power-of-attorney in terms of Section 9 of the Ordinance and not from any other document. Any interpretation that requires such category of officers to substantiate the authority of the executant of the power-of-attorney would nullify the effect that the legislature intended by modifying Section 9 of the Ordinance. And if this was not what was intended by the Legislature, there was no purpose in introducing in Section 9 of the Ordinance the additional category of such officers as Section 9 of the 1997 Act by its terms would adequately have covered the cases of officers holding the power- of-attorneys. It would thus lead to absurdity if Section 9 of the Ordinance is construed to mean that the officer holding the power-of-attorney is required to show the authority of the executant of the said instrument.
9. It is by now a well-settled principle of interpretation of statute that the words used in a statute must be understood in their natural and ordinary sense and construed accordingly unless there is something in the object of the statute suggesting a contrary intention. It is an equally settled rule of construction that clear and plain words of the statute must be given effect to regardless of the consequences. The unambiguous and popular expressions used in statute cannot be brushed aside as surpluses more-so when they have a proper application in circumstances conceivable within the contemplation of the statute. Keeping in view the afore-noted rules, the expression , "such other officer of the financial institution as may be duly authorized in this behalf by power-of- attorney" as mentioned in Section 9 of the Ordinance conveys only one meaning on its construction that a suit by and on behalf of a financial institution can validly be instituted.By an officer who holds a power-of-attorney without further substantiating the authority of the executant of the said power-of-attorney.
10. It is axiomatic, in our opinion, that, when the legislature, in promulgating a statute, uses plain, unambiguous and popularly understood language, it is presumed to have intended precisely what the words of the statute imply. The construction of Section 9 of the Ordinance that it requires an officer holding a power-of-attorney to also show due authorization could only be reached by reading after "such other officer of the financial institution as may be duly authorized in this behalf by power-of-attorney" the words "executed pursuant to a Board " or other words to that effect.
There is, however, no occasion to go beyond the words "such other officer of the financial institution as may be duly authorized in this behalf by power-of-attorney" and their plain meaning to ascertain, by the application of rules of statutory construction, the legislative purpose or intent, The expressions used in Section 9 of the Ordinance speak for itself. An officer of the financial institution holding a power-of-attorney is the designated person to file suits on its behalf apart from the Manager by the force of Section 9 of the Ordinance. Any person other than the Manager and the officer holding the power-of-attorney would of course be required to show due authority from the financial institution for filing of the suit. It is further-more obvious that "or" appearing in- between the three categories of persons in Section 9 of the Ordinance has to be read as "and" and that the three categories are to be read disjunctively entitling each of them to validly institute a suit on behalf of a financial institution. It may also be pointed out that the Courts have time and again through their judgments granted recognition to the Manager of a financial institution to be the possessor of the authority to validly institute the suit in terms of Section 9 of the Ordinance and 1997 Act.
11. The financial institutions have been filing suits through officers holding general power-of- attorney on their behalf since the time of promulgation of special laws. The Courts have also been validating the instituting of suits on behalf of such power-of-attorneys. However, through judgment reported as National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Karachi 262, a learned Judge of the Sindh High Court dismissed 20 banking suits filed by a number of banks/financial institutions through their officers holding power-of-attorneys by having recourse to the judgment delivered by a learned Division bench of the Sindh High Court reported as Abdul Rahim and others v. M/s. United Bank Limited of Pakistan PLD 1997 Karachi 62. The suits were instituted on the basis of banking transactions carrying interest and were filed presumably under the 1979 Ordinance. The learned Judge while making reference to the suits instituted by the banks held that While I am bound to follow the principles .Stated in the above-referred Division Bench judgment, with all humility, I am constrained to express my reservation in relation to the requirement to produce and prove the resolution passed by an artificial body invested with the powers to conduct the business and affairs of a company even in cases where power-of-attorney is placed on the record. Indeed, in order to meet the requirement of showing that the power-of- attorney, itself, is authorised and has lawfully been executed, production of the Articles of Association is imminent.
' The learned Judge proceeded to hold that the power-of-attorneys were not proved by the board resolution and the Articles of Association and accordingly dismissed all the suits. While doing so, it was held that " the urden to show that the suits have been filed by authorized attorneys is upon the plaintiffs. Mere existence of clause empowering the attorney to initiate proceedings in the Powers of Attorney in the absence of Articles of Association and exercise of authority in terms thereof, does not stand the test prescribed in the judgment reported as PLD 1997 Kar 62. " In dismissing the suits, the learned Judge nevertheless made the following observations that, for the purposes if this judgment, are quite relevant.
' I must note here that Act XV of 1997 makes significant departure from the above position and a Branch Manager of a Banking Company is empowered under Section 9 of the said Act to present a plaint marking initiation of proceedings.
' This judgment, it may be noted, came at a time when the 1997 Act was in force and, therefore, the defect in institution of suits by the banking companies as pointed out by the afore-mentioned judgment could not be cured by Section 9 of the 1997 Act.
12. In modifying Section 9 of the Ordinance, the purpose was to cure the mischief that had arisen in view of the judgment rendered in Karachi Development Authority's case (PLD 1999 Karachi 260). It is settled law that for determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and Which necessitated the passing of that law. By bringing in changes in Section 9 of the Ordinance, the long standing practice of filing of suits on the basis of power-of-attorney by the officers of financial institutions was granted recognition. The Ordinance was also a remedial statute in that it changed Section 9 of the Ordinance to do away with the judgment in Karachi Development Authority's case (PLD 1999 Karachi 260). According to the definition of Corpus Juris Secundum, a remedial statute "is designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good." Remedial. Statutes are, therefore, to be given a liberal interpretation and construction to remedy the defects in the law for which purpose the statute was enacted.
Similarly, where a statute has been amended, the original Act may be used to explain any ambiguity that might exist in the language of the amended Act [see Holman Transfer Co. v.
Portland, 250 P.2d 929 (Or. 1952)]. The following passage from the said judgment of Oregon Supreme Court pithily sums up what has been stated above:--- ' This Court, in common with others, has held that an amendment to an act may be resorted to for the discovery of the legislative intention in the enactment amended Layman v. SIAC, 167 Or 379, 400, 117 P2d 974. See, also, 50 Am Jur 328, Statutes, Sec.
337. As stated in the discussion of this subject in 2 Sutherland, op. Cit., Sec. 5110, "it is just as probable that the legislature intended to clear up uncertainties, as it did to change existing law where the former law is changed in only minor details." And this eminent authority approves the following test for determining the question from People v. Davenport, 91 NY 574, 591-592: "The force which should be given to subsequent, as affecting prior legislation, depends largely upon the circumstances under which it takes place. If it follows immediately and after controversies upon the use of doubtful phraseology therein have arisen as to the true construction of the prior law it is entitled to great weight..... If it takes place after a considerable lapse of time and the intervention of other sessions of the legislature, a radical change of phraseology would indicate an intention to supply some provisions not embraced in the former statute."
' It is worth repeating that the words "as the Board of Directors of a banking company may authorize in this behalf" were excluded on purpose from Section 9 of the Ordinance for simplifying the institution of suits and to obviate the task of the officers filing suits to show authorization from the board of directors of the financial institution. As such, these words cannot be included in Section 9 of the Ordinance through the back door by judicial legislation. It is the duty of the Court to show restraint in inserting in a statute what has been omitted. Moreover, that is the only position that comports with the rules of statutory construction that require the Courts to refrain from adding to a statute language that the legislature did not enact, a statute (in the present case, the Ordinance) that was, from all indications, enacted to prevent the mischief Karachi Development Authority's case (PLD 1999 Karachi 260) exemplified. While interpreting statutes, the job of the Courts is to discover the meaning of enacted language, and in doing so it cannot normally insert what was omitted, or to omit what was inserted. In its 1891 decision in State ex rel. Everding v. Simon, 20 Or. 365, 26 P. 170 (1891), for example, the Court refused to extend a statute beyond its terms. It was stated as follows:--- ' Courts cannot supply omissions in legislation, nor afford relief because they are supposed to exist.
When a provision is left out of a statute, either by design or mistake of the Legislature, the courts have no power to supply it. To do so would be to legislate and not to construe.
' Similarly, in Dilger v. School District 24CJ, 222 Or. 108, 112, 352 P.2d 564 (1960), the Court held, citing its comments in Simon's case, that [i]t is axiomatic that the Courts cannot in the guise of construction supply an integral part of a statutory scheme omitted by the legislature.
' Similarly, in Local No, 290 v. Dept. Of Environ. Quality, 323 Or. 559, 919 P.2d 1168 (1996), the Court held that the Oregon Administrative Procedures Act, which allows a "person adversely affected or aggrieved" to obtain judicial review of an agency decision, does not countenance representational standing. Explaining its reasons for the decision, the Court held that the statute makes no mention of 'representational' standing, and the statutory context does not support such an inference.
Indeed, that statute requires that the person bringing the petition [for judicial review] show how that person is adversely affected or aggrieved. We are admonished not to add to a statute words that the legislature has omitted.
13. There is no ambiguity in our minds in view of the standard rules of construction of statutes and on the basis of eminent authorities cited above that when a new law is passed on a subject where there was earlier a vacuum, the intention is to redress and rectify a shortcoming. Where, however, an existing law is altered or modified or even supplemented through an amendment, the purpose is none other than to ameliorate the situation, flaw or deficiency for which such amendment is brought about. In either case, the enactment of the law fills a need and thereby improves a given condition. By promulgating the Ordinance and bringing changes and modifications in Section 9 thereof, the purpose was to render validity to the practice of filing of suits by the financial institutions through officers holding general power-of-attorney. Power-of-attorney, it must be stated, is a legal term of art that has a widely accepted common law meaning and is governed in this country by the Power-of-Attorney Act, 1882. All kinds of powers can be exercised by the done of the power-of-attorney including filing of suits if such a power is reserved in the instrument creating the power-of-attorney. The law-maker was aware of this meaning and usage at the time it passed the Ordinance. Section 9 of the Ordinance, therefore, in the historical context of banking laws set out above does not admit of any construction that would make the holder of the power-of- attorney to further demonstrate his authority through a board resolution for filing a suit.
14. In the present case, the suit was instituted by an officer of the respondent bank. The general power-of-attorney executed in favour of the said officer is available on the record which contains the power to commence and institute a suit for and on behalf of respondent bank. The suit has thus validly been instituted in terms of Section 9 of the Ordinance.
15. The perusal of the statement of account shows that it has duly been certified by the Bankers'
Books Evidence Act, 1891. The application for leave to defend filed by the appellant did not raise any dispute with regard to the statement of account. In fact the mandatory provisions of Section 10 of the Ordinance were not met with by the appellant. Section 10 of the Ordinance by its terms imposes a mandatory requirement on the defendant to state all the particulars mentioned in its sub- section (4) and to append all the necessary documents as mentioned in its sub-section (5).
Failure to meet the requirements of Section 10(4) and (5) of the Ordinance by a defendant results in dismissal of his PLA (see Appollo Textile Mills Limited v. Soneri Bank Limited 2012 PLD 337). It was held in the said judgment that A defending customer is thus obliged to put in a definite response to the banks accounting and has under sections 10 (3) and (4) to compulsorily plead in answer in the leave petition his accounts as well. As the facts and amounts disputed by him as repayable to the plaintiff." (emphasis supplied)
' The application for leave to defend is not at all compliant of Section 10(4) of the Ordinance and as such in terms of Section 10(6) of the Ordinance is liable to be rejected. The consequence of such rejection of application for leave to defend is also spelt out in Section 10(11) of the Ordinance, which clearly states that on such rejection the Banking Court shall forthwith pass judgment and decree in favour of the plaintiff. A similar consequence is also provided in Section 10(1) of the Ordinance which states that dismissal of the application for leave -to defend means that all the allegations made in the plaint shall be deemed to be accepted and the banking Court is obliged to pass a decree thereon.
16. The appellant admitted availing of the finance facility as well as the execution of finance documents thereunder. He did not dispute the principal liability and only called into question the claim of mark-up on the ground that payment of mark-up was not included in the terms of the finance agreement. Sanction letter and finance agreement both dated 29.03.2008 appended with the plaint clearly stipulated for the payment of mark-up by the appellant. It is, therefore, clear that the appellant had failed to raise any bona fide defense in his application for leave to defend. The banking court, therefore, rightly passed decree in favour of plaintiff bank.
17. No good ground has been raised by the appellant for interference in the judgment and decree passed by the Banking Court. In the result, this appeal is dismissed. .