MUZAMIL AKHTAR SHABIR, J.---Through this appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("HO") the appellant bank has called in question the order dated 06.04.2018 passed by Judge Banking Court-I, Multan whereby the application of the respondent under Order XXXIX, Rules 1 and 2, C.P.C. has been allowed.
2. The brief facts of the case are that the respondent is a customer of the appellant bank who availed auto finance facility from the appellant for the purchase of Honda City Car bearing Registration No. LEH-15- 3267 for an amount of Rs.12,15,200/- repayable in 60 monthly instalments spanning over five years. On default in payment of monthly instalments, the appellant bank repossessed the leased vehicle of the respondent. Aggrieved of the said act, the respondent filed a suit for declaration before the Banking Court, Multan on 23.10.2017 by claiming that the appellant is not entitled to repossess the vehicle as the respondent is regularly making payment of monthly instalments and further sought relief that the appellant bank be restrained from auctioning the leased vehicle. Along with the said suit, an application under Order XXXIX, Rules 1 and 2, C.P.C. was filed with the prayer that the appellant bank be restrained from transferring or auctioning the leased vehicle and another application was filed with prayer for directing the appellant bank to deliver the vehicle to the respondent after receiving defaulted instalments. The Banking Court-I, Multan restrained the appellant bank from transferring the vehicle to any other person. The appellant bank thereafter filed an application for leave to defend the suit and the matter was adjourned for arguments on the PLA on various dates but the suit was dismissed on 14.02.2018 for non-appearance of the respondent whereafter it was got restored by the said respondent on 30.03.2018 and was adjourned to 06.04.2018 for further proceedings, on which date, the Judge Banking Court, Multan, instead of deciding the application for leave to defend the suit, accepted interlocutory application of the respondent for delivery of vehicle to him after receiving the defaulted amount. The said order is under challenge through this appeal.
3. The learned counsel for the appellant has argued that without granting leave to defend, the learned Banking Court could not pass any effective order in respect of handing over of the financed vehicle on the pretext that no amount is outstanding against the respondent. He has placed reliance on The Bank of Punjab through General Attorney v. Malik Umer Faroog (2014 CLD 198) and Gulistan Textiles Mills Ltd. and another v. Soneri Bank Ltd. and another (PLD 2018 SC 322).
4. Conversely, learned counsel appearing on behalf of the respondent has argued that the condition for passing effective order before granting leave to defend is applicable to the defendant only and could not be used against the plaintiff who was not required to obtain leave of the court to proceed further with the matter.
5. Heard. Record perused.
6. The respondent obtained auto finance facility for purchase of Honda City Car for an amount of Rs. 12,15,200/- which was repayable in 60 monthly instalments spanning over five years. However, the respondent defaulted in making payment whereafter the appellant bank repossessed the said vehicle. The respondent filed a suit for declaration challenging the repossession of the vehicle by stating therein that the respondent had not defaulted in making the afore-referred payment.
Besides it was claimed that the car had met with an accident against which insurance claim was filed by the respondent but the appellant bank had not processed the said claim of the respondent rather had started making demand of late payment charges and without notice forcibly repossessed the vehicle. It was claimed that even if some instalments were due, the respondent is ready to make payment of the same and the appellant be directed to handover the vehicle. Along with the said suit, an application for interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. was also filed. Moreover, another application for deposit of outstanding amount for release of the afore-referred vehicle was also filed. The appellant bank filed PLA against the same and also filed replies to the applications. Thereafter, the suit was dismissed for non-prosecution on 14.02.2018 but was subsequently got restored on 30.03.2018 and on 06.04.2018 the Judge Banking Court-I, Multan instead of deciding the pending application for leave to defend filed by the appellant bank allowed the application of the respondent for release of vehicle after receiving outstanding defaulted amount in the following terms: "Learned counsel for the plaintiff has stated that the plaintiff has deposited an amount of Rs.2,24,000/- in this court's account on the premises of defaulted instalments and at present nothing is due to him. The defendants without issuance of any prior notice confiscated the suit vehicle, therefore, the demand of the warehouse charges and repossession charges is illegal and without any lawful justification. It has been prayed that as the plaintiff has cleared his entire default so, he is entitled to make use of the suit vehicle and he be released the same.
In view of the contents of application attended by an affidavit, persuaded by submissions made by the learned counsel for the plaintiff and keeping in view the propriety in the plea and bona fide of the plaintiff as he has deposited the entire defaulted instalments, the defendants are directed to handover the possession of the suit vehicle to the plaintiff forthwith under intimation to this court. Necessary communication be addressed to the concerned quarters for the release of the suit vehicle. However, the plaintiff shall keep on depositing future instalments as per agreement for finance."
7. The question that has arisen for determination of the Court is whether the Banking Court could validly pass the afore referred order dated 06.04.2018 without deciding the application for leave to defend the suit filed by the appellant bank. The contention of the appellant is that the Banking Court without deciding the application for leave to defend had no jurisdiction to decide the afore referred application, for which purpose reliance has been placed on 2014 CLD 198 (Supra). In the afore referred case, the matter in consideration before the learned Division Bench of this Court in appeal was also related to the repossession of leased vehicle by the bank and the suit was filed by the customer seeking a declaration that act of the defendant bank in repossessing the vehicle was illegal and unlawful and sought a direction to the bank to render true and faithful statement of account and permanent injunction was also prayed for against the bank not to auction the repossessed vehicle and hand over the possession of repossessed vehicle to the plaintiff. The Banking Court accepted the statement of the customer plaintiff that he was a defaulter of some instalments and granted him opportunity to pay the defaulted amount along with repossession charges. 'Thereafter the Banking Court disposed of the suit by directing the bank to deliver the vehicle to the plaintiff/customer without providing an opportunity to the bank to file application for leave to defend the suit. The said order was challenged by filing FAO before this Court wherein the learned Division Bench has observed as under: "....
The impugned order reads as follows:- "The plaintiff has stated that he is the defaulter of some instalments and now he is ready to pay the same. So the instant suit is disposed of with the direction to the defenerkint bank to hand over the possession of the vehicle to the customer, subject to payment of the defaulted instalments pending by this date plus repossession charges Rs.15,000 within 10 days, definitely.
Account statement be also delivered to the plaintiff within the aforesaid specific time."
The order shows that the Banking Court No.11 accepted the statement of the plaintiff that he was in default of the lease instalments yet was ready to pay the instalments. On the basis of this statement, the suit was disposed of with a direction to the Bank to hand over the possession of the vehicle subject to payment of the defaulted instalments and repossession charges within ten days. We are of the opinion that the Banking Court has erred in law by neglecting to follow the prescribed procedure under the F.I.O. 2001. ..............
In the instant case the Banking Court failed to give the defendant the opportunity to defend the case under section 10 of the F.I.O. 2001 in the form of a preliminary leave to defend application. ..............
To our minds the Banking Court has granted the respondent his final relief without giving the appellant bank an opportunity to file its preliminary leave to defend application as stipulated under section 10 of F.1.0. 2001 and without hearing the case of the appellant Bank against whom the respondent was seeking its relief. ..............
The Banking Court could not have disposed of the suit as per the impugned order of 06.09.2012.
The Banking Court under the F.I.O., 2001 had to exercise its jurisdiction strictly in accordance with the F.I.O., 2001. We find that the Banking Court has neglected to follow the prescribed procedure which is mandatory under the Ordinance. ..............
Therefore, in view of the aforesaid, this, appeal is allowed, the impugned order dated 06.09.2012 is set aside with no order as to costs. The suit of the respondent is deemed to be pending before the learned Banking Court No.II, Lahore. The Banking Court shall treat it as afresh suit and proceed with the suit strictly in accordance with the F.I.O., 2001."
8. In the afore referred judgment passed by this Court, the learned Division Bench cognizant of the matter has only held that the learned Judge Banking Court was not competent to finally decide the suit without following the procedure prescribed in FIO for trial of the suit and providing an opportunity to tile defendant bank to file application for leave to defend and in case such an application is filed without deciding the same. The learned Division Bench had not decided in the afore referred judgment whether the learned Banking Court was authorized or had jurisdiction to decide the application for interim relief or pass any interlocutory order in favour of the plaintiff before grant of leave to defend to the respondent, therefore, the principle laid down in the afore referred judgment is not applicable to the facts of this case and is distinguishable on this ground.
9. In the judgment reported as PLD 2018 SC 322 (supra), the matter for consideration before the Hon'ble Supreme Court of Pakistan was that whether the Banking Court had a power to direct interim sale of goods under the provisions, of section 16 of the F.I.O. by invoking jurisdiction under Order XXXIX, Rule 6, C.P.C. which is a general law when the said power had not been vested in the court by the special law i.e. F.I.O. itself. The Hon'ble Supreme of Pakistan while taking into consideration sections 7 and 16 of the F.I.O. reached the conclusion that a Banking Court shall, in all the matters with respect to which procedure has not been provided for in the F.I.O., follow the procedure laid down in Code of Civil Procedure, 1908 and Criminal Procedure Code, 1898 but where a specific procedure is provided in the FIO, the provisions of C.P.C. have been excluded. In the afore referred judgment as the section 16 of the F.I.O. provided for the attachment of property but did not provide for sale of the same as an interim measure, the court held that according to the principle of harmonious interpretation the special law would take precedence over the general law and provisions of Order XXXIX, Rule 6, C.P.C. or inherent powers under section 151, C.P.C. could not be invoked for selling the attached property as an interim measure when such power was not available under section 16 of the F.I.O. Section 7 of the F.I.O. provides as under: "7. Powers of Banking Courts. -
(1) Subject to the provisions of this Ordinance, a Banking Court shall (a)in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) ..................
(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898). ......."
10.The perusal of the afore referred section 7 makes it clear that subject to the provisions F.I.O., the Banking Court in exercise of its civil jurisdiction has all the powers vested in a civil court in the Code of Civil Procedure and shall follow the Code of Civil Procedure with respect to procedure when, the same is not provided in the F.I.O. The power to pass orders relating to grant of interim injunction has neither A been prohibited nor been regulated by any provision of the F.I.O., therefore, keeping in view of the principle enunciated in the judgment PLD 2018 SC 322 (supra), we are of the opinion that by virtue of powers contemplated by section 7 of the F.I.O., the Banking Court is vested with powers to grant interim relief which power is to be regulated by provisions of Code of Civil Procedure. Besides it is a settled principle of law that what is not prohibited is permitted unless same specifically violates any law or rule. Reliance in this regard is placed on decisions of the Hon'ble Supreme Court in cases reported as Additional Collector-II Sales Tax, Lahore v. Abdullah Sugar Mills Ltd and others (2003 PTD 1664), Islamia University, Bahawalpur v. Muhammad Hameed Bhatti and another (2004 SCM R 649) and Imam Bakhsh and others v. Ghulam Nabi and others (1999 SCM R 34). Even otherwise, a court that is vested with powers to grant final relief is also empowered to grant interim relief. Reliance is placed on Additional Collector-II Sales Tax, Lahore v.
Messrs Abdullah Sugar Mills Ltd. (2003 SCM R 1026), Commissioner, Khairpur Division, Khaiprur and another v. Ali Sher Sarki (PLD 1971 SC 242), Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32) and Molvi Muhammad Yaqub v. Chairman, Election Tribunal, N.W.F.P. and others (PLD 1976 SC 625).
11.Besides making of an interim order is a part of the working of the judicial system and no separate or specific provision is necessary to empower a court to issue an interim order. Reliance is placed on Sardar Shah Bukhari v. Chief Justice and Judges of the High Court of West Pakistan (PLD 1965 SC 479) and a Division Bench judgment of this Court titled Chaudhry Textile Mills Ltd. Lahore v.
Central Board of Revenue, Islamabad (PLD 1976 Lahore 1392). The Banking Court for all intents and purposes was vested with the power to pass interlocutory orders including orders for grant of interim relief. In the present cases, the vehicle Was confiscated by the respondent bank without any prior notice and if the vehicle was allowed to be detained by the bank in a warehouse, it would definitely deteriorate in value because of its non-use and chances of tampering with the same could also not be ruled out. Moreover, putting the said vehicle to auction without determination of liability by a court of competent jurisdiction would also tantamount to denying the lessee of his right to retain the same in case the final order is passed in his favour, therefore, in order to prevent the afore referred eventualities, the Banking Court could pass an interim order directing the appellant bank to release the vehicle after receiving the outstanding defaulted amount subject to final determination of liability of the respondent customer. As regards. the question of passing an order of releasing the vehicle before deciding the application for grant of leave to defend to the respondent bank is concerned suffice it to say that in the present case the respondent (plaintiff) had filed the suit before the court and he was not required to obtain leave to defend the said suit before proceeding further in the matter, contrary to a defendant in a suit under the F.I.O., who cannot affectively participate in the further judicial proceedings under the F.I.O. without obtaining leave to defend the suit. Therefore, the Banking Court in order to preserve the property (vehicle in the pre-sent case) was not required to wait for decision of application for leave to defend before passing an order on the application for grant of temporary injunctions filed by the plaintiff because if such an interpretation of law is adopted it would be tantamount to placing a clog on the vested power of the court to grant interim relief to the plaintiff, where the same did not exist.
12. As far as the proper exercise of jurisdiction of the Banking Court to grant interim relief is concerned, the same is discretionary in nature and the exercise of power so vested in the court on the basis of sound judicial principles cannot be interfered into by this Court unless the same is shown to be illegal, based on erroneous exercise of jurisdiction or perverse, which can only be determined on case to case basis. In the present case, the court has exercised the said jurisdiction keeping in view the bona fides of the respondent in submitting himself to the jurisdiction of the court with a plea of readiness to deposit the entire outstanding defaulted amount in the court which apparently has been done in order to prevent the vehicle from deterioration and the same has not caused any prejudice to the appellant bank especially when the respondent claims to have been dispossessed of vehicle without any prior notice. The court had directed for the release of vehicle subject to deposit of defaulted amount and the rights of the parties shall be determined by the final decision of the pending lis on its own merits. The impugned order is not without jurisdiction, illegal or perverse and no exception can be taken to the same in the given circumstances of the case.
13. For what has been discussed above, no ground to interfere in the impugned order is made out.
Consequently, this appeal being devoid of any merit is dismissed.