AZIZ-UR-REHMAN, J.--- By means of this 1st Appeal filed by the Appellant on 26.01.2018, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, XLVI of 2001, the Appellant [Plaintif f] has challenged the 'Impugned Order' dated 04.01.2018 [Annexures 'A' to the MoA], passed by the learned Judge, Banking Court No. I, at Karachi, in a Suit for DECLARA TION bearing No. 759/2012 [Anees-ur-Rehman v. Messrs. Faysal Bank Limited], whereby , the learned Banking Judge, besides, dismissing [i] the Appella nt's [Plaintif fs] application for AMENDMENTS and [ii] Respondent. Bank's [Defendant] application under Order I, Rule 10 read with section 151, C.P.C. for joining the 'customer' viz. Mr. Waqar Zia, as being a sole proprietor of Messrs Safa Sports Wear, in Suit No. 759/2012, as a party , the 'plaint', was also rejected by exercising `suo motu' jurisdiction. The prayers sought by the Appellant in the instant 1st Appeal reads as follows:- "1]. Appellant prays that this Hon'ble Court may be graciously pleased to set aside the impugned order dated 04.01.2018 passed by the learned Judge of Banking Court No. 1 at Karachi with the direction to decide the suit in accordance with section 10(11) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 strictly on merits and keeping in view of the principle of natural justice and equity .
2]. The appellant seeks costs and any further or other relief deemed appropriate by this Honourable Court in lie circumstances of the case."
2. Precisely , the facts leading to the filing of the instant 1st Appeal are that Appellant was running business under the name and style of Messrs Anis Sports wear and thus, use to supply locally manufactured garments to Aga Khan Hospital. For carrying on the business, the Appellant opened Account No. 51201006790 with Messrs Prime Commercial Bank Limited, ST -3, 12/A, Industrial Area, Karachi.
3. Per version of the Appellant, in the year, 2006-2007, Messrs Prime Commercial Bank Limited publicized for the 'Term Deposit Income' and in this regard hand bills, as asserted, were also distributed. According to Appellant's stand, Messrs Prime Commercial Bank Limited had not only assured but also offered more profit than what had been offered by the National Savings Centre. For and in view of such scenario, the Plaintif f/Appellant, as stated, withdrew his amount from the National Savings Centre, Azizabad, Karachi, and thereafter , the same was directly deposited with Messrs Prime Commercial Bank Limited, ST-3, Sector 12-A, Industrial Area, Karachi, through a cheque.
4. Messrs Prime Commercial Bank Limited initially , was merged with ABN Amro Bank, then Royal Bank of Scotland and lastly with Faysal Bank Limited/Resp ondent Bank herein. The Appellant, as averred, deposited an amount of Rs.400,000/- for five years with the Respondent Bank vide TDR Deal No. 12, on 1st July 2006, at half yearly credit of, profit @ 9.71/4 was also allowed on 10.01.2007 of Rs.22,318. Besides, as averred, the Appellant further deposited Rs.260,000/- vide Deal No. 31 dated 28.9.2006, with the Respondent Bank also against yearly profit of 9.7%, for a term of 5, years.
5. Per Appellant/Plaintif f's version, time and again he made requests to the Banks for withdrawal of 'Term Deposits' and `Profits' thereon, but Respondent Bank did not give any heed to the requests of the Appellant. The Respondent Bank, instead, continued to change from (i) Prime Commercial Bank to ABN Amro Bank, (ii) from ABN Amro to RBS of Scotland (iii) From RBS Scotland to Faysal Bank, however , without meeting/g iving any heed to the time and again requests of the Appellant [Plaintif f]. According to Appellant [Plaintif f], the said Bank[s], have actually usurped the deposits and profits accrued thereon.
The amounts of two [2] 'T erm Deposits' and Profits thereon, as per Appellant's workout are as follows: - i. Term Deposit bearing No. 12 of Rs.4,60,000/- dated 01.7.2006Rs.4,60,000/- ia. Profit as per agreed rate @ 9.7% from 01.7.2006 till 15.1 1.201 1Rs.3,47,224/- ii. Term Deposit bearing No. 31 of dated 28.9.2006Rs.2.60.000/- iia. Profit on Rs.2,60,000/- as agreed at 9.7% @ 9.7% as worked at aboveRs.2,26,078/- Rs.12,93,302/- (Total Rupees twelve lacs ninety three thousand and three hundred and two only)
7. The Appellant, upon maturity , again requested the Respondent Bank for release of TDRs' amounts along with accrued profit thereon, total amounting to Rs.1,293,302/-, so that the same, as averred by the Appellant [Plaintif f] be re-invested at a better rate, but the Respondent Bank for the reasons best known to it, however , failed and/or avoided to do so. Hence, the Appellant [Plaintif f], filed Suit No. 759/2012 [Anees-ur-Rehman v. Messrs Faysal Bank Limited], for DECLARA TION under FIO 2001, against the Respondent Bank [Defendant] before the Banking Court No. I, at Karachi.-
8. Upon filing of the above Suit No. 759/2012 [Anees-ur-Rehman v. Messrs Faysal Bank Limited] on 13.12.2012, for `DECLARA TION' and, of course, after issuance of process/service of summons, as required under law, the Respondent Bank, filed its 'LEAVE TO DEFEND APPLICA TION' under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 [In short F.I.O., 2001] wherein, besides, raising PRELIMINAR Y OBJECTIONS' regarding 'MAINT AINABILITY' of the suit, the adverse assertions / stand taken by the Plaintif f / Appellant herein, were/was vehemently denied / controverted.. The 'PRELIMINAR Y OBJECTIONS' / `DEFENCE PLEAS', raised by the Respondent Bank [Plaintif f] read as follows:- A. That the present suit is hopelessly time barred as the TDRs in question had been deposited with the answering defendant in 2006 as according to the own showing of the plaintif f and the said TDRs had been deposited with the Defendant in 2006 which had been encashed and adjusted against the liabilities of the plaintif f and his son-in-law way back in 30.09.2008 and 29.09.2007, whereas the present suit has been filed in January 2013 after a lapse of 5 to 6 years more over no condonation of delay has been sought thus on this count alone the present suit merits to be dismissed with special cost.
B. That the present suit is hit by the Non-Compliance of section 9(3) of F.I.O., 2001 thus on this count alone the present suit merits to be dismissed.
C. That the provision of APPROBA TION AND REPROBA TION hit the present suit. The plaintif f doesn't have legs to stand thus have REPROBA TED AND APPROBA TED his own contentions which is not permissible in law .
D. That the plaintif fs' attitude and the filing of the present suit is hit by principle of aches and acquiescence more particularly after committing default as such the agreement in question is acted upon, rendering the plaintif f liable by virtue of doctrine of promise, silence, approbation and reprobation as envisaged in the Quranic verses i.e. one in opening Surha MAIDA and that of other appraising in Surha AL-SARRA exclusive of other Quranic verses according to which a duty is cast upon the plaintif f to fulfill the promise, honor the commitment and discharge the obligations to satisfy legal commitment of the contract in question.
E. That the present suit is based on concealment of facts. The plaintif f had malafide ly concealed material facts from this Hon'ble Court.
F. That the present suit had been malafid ely filed by the plaintif f after a lapse of 5 to 6 years in order to blackmail the defendant as the plaintif f is well aware that TDRs that were pledged with the defendant had been rightly encashed by the, defendant the plaintif f was well satisfied with the said redemption which had attained finality and at this belated stage had filed the present suit only to pressurize the answering defendant and to get waivers in the default running account of Sofa Sports. W ear in which the plaintif f is a guarantor all sums due and payable.
G. That the title suit is hit by the principle of MIS-JOINDER AND NON-JOINDER of the parties. As the plaintif f had malafidely not joined the proprietor of Safa Sports Wear for whom the plaintif f had stood guarantor for the repayment of all sums that were due and payable by Safa Sports Wear and the other guarantor of the said facilities.
H. That the title suit is not maintainable against the answering defendant as the plaintif f is the guarantor of. the Messrs Safa Sports Wear who had availed the finance facilities from the defendant and after fully utilizing the same had created a default in making repayment thus is hit by the provisions of section 37 of Contract Act, hence the suit of the plaintif f liable, to be dismissed on this sole ground.
I. That the suit is not maintainable as plaintif f has completely failed to establish any cause of action against the answering defendant.
J. That the prayer clause of the plaintif f is in contravention of the statutory provis ion of law, hence illegal and is liable to be rejected and the suit of the plaintif f is liable to be dismissed on this score alone.
K. That the defendant vehemently denying the contents/statements as stated in the plaint as the facts have been distorted and the plaintif f has concealed various aspect. There are triable issues involved in the instant suit, which cannot be resolved without recording of evidence.
[Underling is ours]
9. The Respondent Bank in reply thereto had also filed `REPLICA TION' under section 10(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, [In short F.I.O., 2001] wherein, the 'adverse allegations' contrary to the Appellant's / Plaintif f's version were denied. Paras 6, 7, 8 and 27 from the 'REPLICA TION', filed by the Appellant [Plaintif f] being relevant, as far as, the dispute in hand is concerned, are respectively , are reproduced herein below:- "6. The total amount on TDRs 12 and 31 therefore comes to Rs.14,00,86 (Rupe es Fourteen Lac Eight Hundred Sixty One) which the Plaintif f has claimed from the bank. This claim was clearly and vividly made known to the defendant as per (Plaintif f's letter dated 21-01-2013 is Annex-A-5) and several other letters i.e. 12-12-2012 etc.
7. The defendants: in his Application under section 10 of Banking Laws has at last admitted both the T.D.Rs deposit of Rs. 469625 and Rs.260,000.
8. The Defendant Bank has however asserted in Defense that the Plaintif f still owes to the Bank and have made contradictory claims that they were adjus ted and Bank further states that the claims are barred by limitations, the defendant Bank has come out with half settlement of Accounts. The Plaintif f therefore submits as follows:-
27. Para 8 of Defendant Bank is mislea ding it is incorrect to say that the Plaintif f had given a go ahead for encashing the entire TDRs and adjusting the same in 2011 after the legal notice was sent. Contrarily the Plaintif f had made a request to adjust entire loans facilities of all TDRs and moveable securities in the name of plaintif f and his daughter Uzma Tabassum on 29.03.2 007. Prime bank letter of acknowledgeme nt dated 17.04.2007 is available as enclosure A-15, which refer to partial adjustment which was not acceptable and therefore the Prime Bank (now Faysal Bank) issued another letter of entire adjustment of loan facility vide their letter dated 31.05.2007 stating entire liability at Rs.35,17,220/- whereas the Plaintif fs and daughter's value of entire TDRs and securities as at the date of request 29.03.2007. Stood exceeding the aforesaid amount i.e. at Rs.35,23 ,220/- the calculation/working of rates of DSCs is available on inter-net that was furnished to the Bank then and is available as enclosure A-6."
[Underlining is ours]
10. The learned Banking Court No. I, at Karachi, after hearing of the Bank's Leave-to-Defend Application under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 [XLVI of 2001], allowed the same vide order dated 13.05.2014. The 'operative part' of LEA VE granting Order dated 13.05.2014 reads as follows: "The perusal of the record reveals that the plaintif f along with application for leave to defend the suit has filed various charge documents and letters exchange between the parties as Annexure L/7 to 1143. The said charge documents pertains to advance of finance facility extended to the plaintif f and Messrs Safa Sportswear and its guarantors as charging in the present suit. It is apparent that the TDRs in question were pledged against the finance facility to the plaintif f and Messrs Safa Sportswear . The question raise d by the defendant constitutes substantial question of law and facts which was not called in question by the other side, thus matter require recording of evidence. Therefore the application for leave to defend the suit filed by the defendant Bank is hereby granted unconditionally". [Underling is ours]
11. The Appellant [Plaintif f], after the grant of 'LEAVE-T O-DEFEND APPLICA TION' on 13.05.2014, to the Respondent Bank un-conditionally , filed an 'APPLICA TION' for seeking about EIGHTEEN [18] AMENDMENTS in the 'prayer clause'. The Respondent Bank [Defendant]; also filed an application under Order I, Rule 10, C.P.C., for impleading 'principal customer' viz. MR. WAQAR ZIA, sole proprietor of Messrs Safa Sportswear . Both the said applications were heard on 04.01.2018. The learned Banking Court-I at Karachi, besides, dismissing the aforesaid two [2] applications, also `REJECTED' the 'PLAINT' vide 'impugned order' dated 04.01.2018. The 'relevant portion' from the 'impugned order' of 04.01.2018, is reproduced hereinbelow:-
6. ....The plaint under section 9 of the Ordinance must disclose cause of action which spell out the default or breach in fulfillment of any obligation with regard to any finance arising out of the contract between the parties.
Under section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the plaint has to be supported with all other relevant documen ts relating to the grant of finance but in the instant case not only the plaint does not fulfill the statutory requirements of section 9 of Financial Institutions (Recovery of Finances, Ordinance, 2001 but also no any charge document in support of the plaint relating to the finance has been filed. It is settled principle of law that Court can always nip a frivolous suit in the bud by rejecting the plaint in order to retain its docket and time for some serious claims. The Court enjoys an insular power under Order VII, Rule 11, C.P.C. to examine the plaint, primarily on the basis of the contents of the plaint. The insta nt plaint is vague, generalized, unspecified and vexatious. The alleged cause of action does not constitute a cause required of plaint which necessitates an action under the Finan cial 'Institutions (Recovery of Finances) Ordinance, 2001 against the defendant, particularly when the prayer made by the plaintif f cannot be granted in view of the pleadings. In view of the above facts and circumstances both the applications are not maintainable thus dismissed and the plaint is also hereby rejected. [Underling is ours]
12. The Appellant [Plaintif f], thus feeling 'aggrieved' and `dis-satisfied' with the 'impugned order' dated 04.01.2018, has approached this Court with a prayer for setting aside the 'impugned order' dated 04.01.2018 [Annexure 'A' to MoA].
13. On 23.02.2018 when, the above. Ist Appeal No. 12 of 2018 [Anees-ur-Rehman v. Messrs Faysal Bank Limited], came-up before us then, we heard Mr. Haris Rasheed Khan, learned counsel for the Appellant [Plaintif f] and also gone through the 'impugned order'. dated 04.01.2018 and available record before us minutely and thereupon, Ist Appeal was 'DISMISSED' in limine by our short order dated 23.02.2018. The short order for ready reference is also reproduced herein below:-
1. For Order on of fice objection along with reply as at "A".
2. For Hearing of Main Case 23-02-2018.
Mr. Haris Rasheed, advocate for the appellant.
For the reasons to be recorded latter on, instant appeal is dismissed in limine."
14. Mr. Haris Rashid Khan, learned counsel for the Appellant [Plaintif f] contended in vehemence that the 'impugned order' dated 23.02.2018, passed by the Banking Court No. I, at Karachi, besides, erroneous, has been passed in violation of law, as such, the same is liable to be set-aside. Per learned counsel, the learned trial Court under the facts and circumstances of .the case, was not justified to pass the impugned order , as on the date when the plaint was rejected under Order VII, Rule 11, C.P.C., the case was fixed for hearing of two [2] Applications i.e. [i] Application for ABOUT 18 Amendments in the `Prayer Clause' of the 'PLAINT' filed by the Appellant [Plaintif f] and
[ii] Application under Order I, Rule 10, C.P.C., read with section 151, C.P.C., filed by the Respondent Bank for IMPLEADING the 'Principal Customer' as a party in the Plaintif f's Suit No. 759/2012 [Anees-ur-Rehman v. Messrs Faysal Bank Limited], out of which the instant 1st Appeal has arisen.
15. According to Mr. Haris Rashid Khan, the Banking Court No. I, at Karachi, was bound under law to decide the suit on merits in accordance with section 10(11) of F.I.O., 2001. Per learned counsel, upon granting un conditional leave to defend, on 13.05.2014, to the Respondent Bank, the REJECTION of the 'plaint' under suo motu exercise of jurisdiction by the Banking Court No. I, at Karachi, and that too, without framing of issues is neither legal nor otherwise, justified. According to Mr. Hark Rashid Khan, learned counsel for the appellant [Plaintif f], the 'impugned order' dated 13.05.2014 is not only perverse, arbitrary , but also against the settled principle of law. Per Mr. Hark Rashid Khan, the 'impugned order' dated 13.05.2014 is liable to be set aside, otherwise, the Appellant [Plaintif f], shall be seriously prejudiced.
16. Lastly , learned counsel for the Appellant/[Plaintif f] contended that the amount of pledged TDR's, in any event, is required to be reimbursed to the Appellant [Plaintif f], as the said pledged TDR's have been encashed by the Respondent Bank without giving/issuing. `Mandatory Notice' to the Appellant/[Plaintif f], as required, under Section 176 of the Contract Act [IX of 1872].
17. Heard,
18. The Respondent Bank in its 'Leave-to-Defend Application' had not only denied the 'assertions' made by the Appellant/Plaintif f contrary to the stand of Respondent Bank, but had also raised 'PRELIMINAR Y OBJECTION' vis- -vis MAINT AINABILITY OF THE SUIT filed by the Appellant [Plaintif f]. From bare perusal of the plaint, it appears that the Appellant [Plaintif f] has miserably failed to bring his suit within the ambit of section 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which inter alia, requires that where a customer or a 'financial institution' commits a 'default' in fulfillmen t 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. In the case in hand, the Appellant [Plaintif f] has neither alleged any 'default' with regard to any `finance' on the part of Respondent Bank nor otherwise, any `relationship' of a customers and financial institution in the PLAINT has been pleaded/asserted.
19. To see and properly appreciate the Appellant's case in juxtaposition of the 'PRELIMINAR Y OBJECTIONS' regarding maintainability of the suit, we would like to refer to and reproduce hereinbelow subsections [1], [2] and [3] of section 9 of F .I.O., 2001, respectively:- "9. Procedure of Banking Courts.---(1) Where a customer or a financial institution commits a default in fulfillment 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 Coat 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.
(2) The paint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers' Books Eviden ce Act, 1891 (XVIII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in suf ficient numbers so that there is one set of copies for each defendant and one extra copy .
(3) The plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically State- [Underlining is mine].
(a) the amount of finance availed by the defendant from the financial institution;
(b) the amounts paid by the defendant to the financial institution and the dates of payment; and
(c) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of, the suit.
(4) ....................
(5) ...................
20. Manifestly , per section 9 of F.I.O., 2001 [Ordinance XLVI of 2001], when a 'customer' or a 'Financial Institution' commits a `default' in fulfilment of any obligation regarding any finance, then the `Financial Institution' or, as the case may be the 'customer', may institute a suit in the Banking Court by presenting a 'plaint' which needs to 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 authorised, by a power of attorney or otherwise. Apart from the aforesaid requisites, in terms of section 9 of F.I.O., 2001, the 'plaint' shall be supported by a 'statement of account' which in the case of a Financial Institution, shall be 'duly certifie d' under the Bankers' Book Evidence Act, 1891 [Act No. XVIII of 1891], and accompanied with all other 'relevant documents' relating to the grant of finance. Moreover , in terms of subsection [2] of section 9 of F.1.0., 2001, copies of the 'plaint', `statement of account' and other 'relevant documents' are also needed to be filed along with plaint in the Banking Court in sufficient numbers i.e. one set for each Defendant and one extra set of copy[ies].
21. The use of words 'the plaint shall be supported' preceding the words 'duly certified statement of account' in fact renders, the, compliance of section 9 of F.I.O., 2001, as 'mandatory'. In case of `non-compliance' of such essential requirements, as mentioned in section 9 of F.I.O., 2001, a plaintif f then, indeed, would be bound to face the consequences. If the 'mandatory' ingredients/requirements in terms of section 9 of F.I.O., 2001 are either ignored and/or otherwise are not fulfilled then, of course, the Plaintif f is liable to face the consequences whatsoever it may be. On this aspect of the matter , reliance can be placed on the case of [i] Elbow Room and another v. MC Bank Limited [2014 CLD 985 D.B] and [ii] Banker's Equity Ltd. v. Bentonite Pakistan Limited and others [2003 CLD 931] wherein, respectively it was observed as follows:-
[i] 2014 CLD 985 "7. ...The Legislature has used the word "supported" as employed in section 9(2) of Ordnance, 2001; which means that if the suit is not supported by the Statement of Account it would not be competent. The word "support" read in the mandatory perspective of the word "shall" makes the plaint filed by a financial institution, totally dependent upon duly certified statement of account on the "support" of which a plaint may stand and sustain as per section 9(1) and (2) of Ordinance, 2001......" [Underlining is ours].
[ii] 2003 CLD 931 10.... definition and nature of term 'support' subsections (1) and (2) of section 9 of the Ordinance, 2001, can safely and logically be interpreted by holding that suit of a Banking Company cannot hold, endure, sustain, stand and be instituted without life support and founda tion of a duly certified Statement of Account and the said documents for the plaint, wherefor , non-compliance with express provisions of law bars a suit through a plaint unsupported by a Statement of Account duly certified under Bankers' Books Evidence Act, 1891 and the documents relating to grant of finance.
11. I am reinforced in my above opinion by the difference of phraseology used in provisions contained in subsections (1) and (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and the provisions of Rules 14 and 17 of Order VII of C.P.C. Said rules 14 and 17 relate to production of documents in the Court upon presentation of a plaint. These provisions read as under:- Rule.
14. "Production of document on which plaintif f sues.---(1) Where a plaintif f sues upon a document in his possession or power , he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) List of other documents.---(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
Rule 17. "Production of shop-book.---(1) Save insofar as is otherwise provided by the Bankers' Books Evidence Act, 1891, where the document on which the plaintif f sues is an entry in a shop-book or other account in his possession or power , the plaintif f shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
Original entry to be marked and returned.---(2) The Court, or such officer as it appo ints in his behalf, shall forthwith mark the document for the, purpose of identification; and after examining and comparing the copy with the original, shall if it is found correct, certify it to be so and return the book to the plaintif f and cause the copy to be filed."
The requirement under these rules is that a plaintif f shall "produce" documents or shop-books or accounts sued upon, when the plaint is presented and the plaintif f shall at the same time deliver the document or file the copy thereof with the plaint. These rules visualize total independence of the plaint, the documents, the books of account or shop-books. The documents/accounts relied upon can be subsequently produc ed with permission of the Court under Order XI, Rule 14 or under Orde r XIII, Rule 2 or under section 151,, C.P.C. The consequence of non- production of documents along with the plaint are that the same "shall not, without the leave of the Court .be received in evidence" under Rule 18 of Order VII; C.P.C. or shall not be received in evidence "at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof under rule 2 of Order XIII, C.P .C.
The obvious distinction between the above said Rules and subsection (2) of section 9 of the Ordinance, 2001 is that above quoted Rules of C.P.C. require 'production of documents" along with the plaint or on the first hearing of the suit while subsections (1) and (2) of section 9 of the Ordinance, 2001 provide that civil suit shall be filed through a plaint "supported" by a duly certified Statement of Accounts and documents of finance. The words "to produce documents along with the plaint" used in C.P.C. connote meanings- different from the words "plaint shall be supported by a Statement of Accounts---"under section 9 of the Ordinance: The distinction thereto is obvious, C.P.C. allows a plaint independent of production of documents as consequence of non-filing thereto is inadmissibility of documents in evidence if leave of the Court is not obtained for subsequent production of the same. Contrarily , legislators chose not to use the word "produced" under section 9 of the Ordinance but used the word 'Plaint shall be supported by a statement of Accounts and documents of finance. The freedom of subsequent production of Statement of Accounts and documents of finance (not filed with the plaint) has been taken away from the plaintif f under section 9 of the Ordinance, 2001, which require plaint, Statements of Accounts or documents of finance together to initiate a civil suit on behalf of Banking Institution. [Underlining is ours].
22. Evidently , jurisdiction of a Banking Court is attracted where a customer or a bank/financial Institute commits 'default' in fulfilling of any obligation vis- -vis any 'finance facility'. For a Banking Court to assume jurisdiction, it must be established at the very outset that a relationship of customer and banker exists between the parties and also `default' in respect of finance has been committed. Moreover , in terms of obligations imposed by section 9 of F.I.O., 2001, a Defendant in a suit, filed under the Banking jurisdiction must be confronted with the best possible re- structured/well framed case and that too, from the very inception. In this regard, one can made reference to the case of Apollo Textile Mills Limited and others v. Soneri Bank Limited [2012 CLD 337] wherein, the Apex Court of Pakistan has observed as follows:- "15. ...The rationale of the schematic discipline of Ordinance of 2001 is evident. A banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsorily in the books of Accounts in terms of the laws, rules and banking practice. As such instead of leaving it to the opinion of the parties to make general assertions on Accounts, the Ordinance binds both the sides to be absolutely specific on accounts. The parties to a suit have been obligated equally to definitively plead and to specifically state their respective accounts". [Underlining is mine].
23. A Customer or Financial Institution if, fails to adhere strictly to the 'manda tory requirements' of law, then, indeed, a defending party not only be entitled to have the grant of a LEAVE to defend the Suit but also the defending party will be within his/its' rights to seek rejection of the plaint. Further , merely , on the basis of 'documents' filed along with the replication or replica, a Defendant may not be deprived from to have a favourable order for grant of leave to defend the suit. The granting order of leave to defend the suit, however , does not bar a defendant to also seek the REJECTION of the plaint under Order VII, Rule 11, C.P.C. Being relevant, Order VII, Rule 1 1, C.P .C. is reproduced herein below:-
11. Rejection of plaint.---The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintif f, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon pape r insuf ficiently stamped, and the plaintif f on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
24. On the above aspect of the matter , reliance can be placed on the case of Chaudhry Mukhtar Ahmed v.
National Bank of Pakistan and others (2007 CLD 501 -DB) , wherein it was held as follows:-
5. Now coming to the second contention raised by the learned counsel, as noted above. The learned Judge Banking Court allowed respondent's leave application on 18-12-2003, they filed the application for rejection of plaint on 15-1-2004 and written statement on 16-1-2004. Section 7(1) of the Ordinance, 2001 provides that a Banking Court shall, in exercise of its civil jurisdiction, have all the powers vested in a Civil Court under the Code of Civil Procedure, therefore, it cannot be argued that the learned Banking Judge is divested of his jurisdiction to exercise the powers under Order VII, rule 11, C.P.C. It appears appropriate to reproduce a portion from the judgment reported as Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager 2003 CLD 245 :-- "Undoubtedly" after the grant of leave to defend and treating the leave an application as written statement the respondents are within their right to have filed an application under Order VII, rule [11], C.P.C. and if the Court reaches the conclusion that the case falls under any of the clauses of Order VII, rule 11, C.P.C. of course, plaint could have been rejected but in no way before the grant of leave to defend the suit." (Underlining is ours).
25. It is significant to note, that in the case in hand, the Appellant [Plaintif f] filed the suit only for 'DECLARA TION' under F .I.O., 2001, with prayers as follows:-
(i) To decree the plaintif f of the said Term Deposit Nos.12 and 31 of Rs.4,6 0,000/- (rupees four lacs sixty thousands) and Rs.2,60,000/- (rupees two lacs sixty thousands) respectively and entitle profit of Rs.2,23,183/- (rupees two lacs twenty three thousand one hundred eighty three only) and Rs.1,26,100/- (rupees one lac twenty six thousand one hundred only), total amount of Rs.10,69,280/- (rupees ten lacs sixty nine thousand two hundred eighty only) against the defendants.
(ii) To direct the defendant to adjust the above worked out amount against the loan of Safa Sportswear as per request vide letter No. Nil dated 18-04-201 1, acknowledge by the bank.
(iii) Any other relief/relieves which the Hon'ble Court may be pleased to deem fit and proper in the circumstances of the case. [Underlining is ours]
26. From perusal of the record, it transpires that the appellant/plaintif f filed suit on. 13.12.2012, for declaration under the provisions of F.I.O., 2001. From perusal of Paras 1 to 13 of the 'plaint' as well as the 'prayer clauses' it reflects that the entire case of the appella nt/plaintif f, in fact, revolves around TDRs of Rs.460,000/- vide TDR Deal No. 12, dated 01.07.2006 and. TDR of Rs.260,000/- vide TDR Deal No. 31 dated 28.9.2006 and the accrued profits thereon. In the plaint neither any specific date regarding 'cause of action' has been shown nor otherwise, has established any 'default' in respect of any finance on the part of Respondent Bank. Regarding 'cause of action' and `Court fee' paras 1 1, 12 and 13 as 'being relevant are reproduced hereinbelow:- "11. That the cause of action firstly arose when the plaintif f first purchased Term Deposit Certificates bearing Nos.12 and 31 respectively and secondly when the plaintif f requested to the bank for adjustment of above amount against loan of Safa Sportswear , a propriety concern of son-in-law (Mr. Waqar Zia) dated 18-04-2012 and to return excessive deposits and certificates to the plaintif f. Thirdly the defendant issuing and releasing profit on the same, requiring Decree of Court law . The cause of action still continues till filing the suit.
12. That the cause of action arose within the local limits of P.S. Gulshan-e-lqbal, Karachi, which falls within the jurisdiction of this Hon'ble Court.
13. That the suit is valued. Rs.500/- for declaration, as such no Court of fee is required."
27. The Respondent Bank/Defendant, upon service, filed a LEAVE TO DEFEND APPLICA TION wherein, inter alia, a stance was taken that suit as 'framed' and 'filed', is hopelessly time barred. Per Respondent Bank's stand, the subject TDRs upon encashment were adjusted long ago on 29.09.2007 and 30.09.2008 and against the liabilities of the Appellant [Plaintif f] and his son-in-law . In this regard, reference was made to the Appellant's [Plaintif fs] letter dated 19.05.201 1 wherein, the factum of 'adjustment' was specifically acknowledged by the Appellant. For ready reference, the Appellant's [Plaintif f's] letter dated 19.05.201 1, is reproduced herein below:- Date: 19.05.201 1 Mr. Ghulam Nabi, Senior Relationship Manager , Commercial Banking-South Faysal Bank Ltd. Faysal House, Shahra-e-Faisal, Karachi.
Sub: ADJUSTMENT OF OUTST ANDING FACILITIES A/C MESSRS SAFA SPOR TS WEAR (PROP . MR. WAQAR ZIA)
Reference my letter dated 18.04.201 1 (copy enclosed) for the full and final settlement of subject matter to the extent of Rs.3,517,221/- in response to your letter No. PCBL/CMP-1 1/1094/ 2007 dated: 31.05.2007 (copy enclosed) and also earlier request for the same on the above subject.
A verbal query was received from bank through Mr. Imran Mushtaq (Relationship Manager) stating the fact that there does not appear any trace of term deposit of Rs.460,000/- and asked us to contact the branch office of Faysal Bank Ltd. North Karachi branch to get the status of above noted TDR.
The undersigned (Anees-ur-Rehman) contacted Mr. Shahid Khan (Team Leader Business Banking) at 12-North Karachi branch for the updated status of TDR, who again verbally told us that the said TDR is adjusted against.
Running Finance in 2008 and the balance of R.F. stands at Rs.604,997/- instead of. Rs.1,099,902/- communicated in the letter .
An NOC may please be: issued at the earliest and unadjusted excess amount of securities and deposits may please be made available to the credit of account of Mr. Anees-ur-Rehman held at your North Karachi, branch.
Here it is mentioned that since withholding of TDRs, the business of Anees Sportswear is suspended due to non- availability of funds, as Anis Sportswear was supplying garments to Aga Khan Hospital and since blocking of funds no business could be carried out. Kindly take appropriate action at the earliest.
Waiting for your kind reply .
Anees-ur-Rehman son of Bashir Ahmed NIC # 42201-0663289-3 Resident of B-37, Block 13, Gulshan-e-Iqbal, Karachi.
CC: Mr . Bashir A. Shaikh Head Special Asset Management, Faysal Bank Ltd., Faysal House, Shahrah-e-Faysal, Karachi.
CC: Mr . Aarij Ali Head of Retail Banking, Faysal Bank Ltd., Faysal House, Shahrah-e-Faysal, Karachi.
28. The aforesaid letter of the Appellant/Plaintif f dated 19.05.201 1, was duly replied by the Respondent Bank through its letter dated 17th June, 201 1. Being relevant, the same is also reproduced herein below:- Faysal Bank Limited (WITHOUT PREJUDICE)
June 17, 201 1 1.-Mrs. Uzma Tabassum Anees 2-Mrs. Anees U Rehman House No. B-37, Block-13 Gulshan-e-Iqbal Karachi NOTICE OF SALE OF PLEDGED SECURITIES Please refer to your letters dated 18-04-021 1 and 19-05-201 1 wherein you consented for voluntarily liquidation of the pledged securities held as collateral against the finance facilities availed by Mr. Waqar Zia as the proprietor of Messrs Safa Sportswear .
We would like to inform that Prime Bank Limited which was merged with ABN Amro Bank and later on with RBS which is recently acquired by Faysal Bank Limited has never consented for settlement of total overdue at Rs.
3,517,220.84 as appeared in the first para of your letter dated 19-05-201 1. The contents of referred letter were aimed only to provide the status of overdue outstanding position of finance facilities availed by the proprietor of Safa Sportswear and request for an easily adjustment of securities.
Please note that most of the securities at that time were not matured and any encashment at that point in time would have resulted in minimum realized value to fully adjust the overdue outstanding amount. Bank has thus acted prudently and sacrificed its encashm ent right to provide maximum benefit to you. Some of the certificates are still not matured and were not en-cashed owning to above.
We further confirm that currently we are not holding any TDE or lien on cash deposits in the name of Anis Sportswear or other as security against the finance facilities of Safa Sportswear as claimed by you. A term deposit of Rs.450,000- held on lien was liquidated on 30-09-2008 and proceeds of Rs.494,973.73 inclusive of profit were adjusted towards Running Finance facility of Rs.1,099,970.84 of Safa Sportswear which presently stands at Rs.604,997.1 1 as overdue.
For your convenience the breakup of facilities availed by Safa Sports as on 17- 05-201 1 is as under:
1. Running Finance Rs.604,997, 1 1
2. Export Finance Rs.400,000.00
3. Export Bill Discounting. Rs.604,997,1 1
4. Mark up upto 30-04-201 1. Rs.2,154,389.01 Total upto 17-05-201 1 Rs. 4,992,898.52 Please note we will start en-cashing all the securities/certificates immediately as consented by you for adjustment towards the overdue outstanding amount.
SD/- S. Ghulam Nabi Shah Regional Manager SAM- South Yours faithfully , Imran Mushtaq RM-SAM South Copy for information Mr. Waqar Zia, Proprietor , Safa Sportswear
29. Evidently , the subject TDR's was/were liquidated and adjusted in the years, 2007 and 2008 against the outstanding liabilities. In this regard, paras 3 and 4 of Leave-to-Defend Application as being relevant and selves explanatory , are reproduced herein-below:- "3). That the contents of Para No. 3 of the plaint are not denied to the extent of Deposit the term Deposit bearing No. 12 of Rs.460,000/- however the rest is vehemently and categorically denied. It is respectfully submitted that the said TDR was offered by the plaintif f as a collateral to secure the finance availe d by Messrs Safa Sports Wear whose proprietor is also the-son-in-law of the plaintif f) and signed/executed/delivered to the defendant his personal guarantee for repayment of the all dues and liabilities that may occur against Messrs Safa Sports Wear and in order to further secure the defendant also signed/executed/ 'delivered to the defendant a letter of lien mark and set off in favour of Prime Bank Ltd. Now Faysal Bank Ltd. It is pertinent to mention here that Messrs Safa Sports Wear since beginning was never regular making in the repayments this very fact was time and again narrated to the plaintif f as well the borrower and other guarantor i.e. the wife of the plaintif f but no heed was paid to the said request atlast the defendant was constrained to liquidate the said TDRs and the proceeds thereof amounting to Rs.494,973.73 was adjusted in the account of Messrs Safa Sports W ear on 30-09-2008.
4). That the contents of Para No. 4 of the plaint are not denied to the extent of the deposit of another Term Deposit of Rs.260,000/- however it is respectfully submitted that the said TDR was deposited with the defendant as a cash collateral security against the Running Finance Facility availed by the plaintif f himself and the said TDR was encashed on 29.09.2007 for the settlement of the outstanding dues/liabilities of the defendant against the plaintif f.
This very fact is well in knowledge of the plaintif f since 2007 who at this belated stage raised the question of said TDR after a lapse of 6 years and has concealed this very fact it from this Hon'ble Court thus the suit merits to be dismissed with special costs on being hopelessly TIME BARRED and on the basis of CONCEALMENT OF FACTS."
30. As seen the cause of action, if any, was accrued in favour of the Appellant [Plaintif f] in the years, 2007 and 2008. The appellant/plaintif f, in his own wisdom opted to respond the Respondent Bank's letter dated 31.05.2007 in the year 2011 i.e. after a lapse of about five 5 years. In this view of the matter , as well, the appellant/plaintif f s suit is hopelessly time barred. Despite, acknowledgment of Bank's letter dated 31.05.2007, the Appellant [Plaintif f], however , opted to file a suit for declaration, after lapse of about 6 years without arising any 'cause of action' for filing the suit in the year , 2012.
31. Per Mr. Haris Rashid, Khan, learned counsel for the Appellant [Plaintif f], even if, any 'lacuna' was left over at the time of filing of the suit for declaration that could be cured at the stage of Replication/Replica or even thereafter . As far as this argument of learned counsel for the Appellant [Plaintif f] is concerned, in our view, the same is not only `mis conceived' but also `mis-leading', as in such eventuality , the Defendant would have 'no opportunity' to suitably rebut such new built-up case. The 'mandatory requirements' as provided in terms of section 9 of 2001, in no manner can be postponed/or otherwise, rectified subsequently . Reliance on the above aspect of the matter can be placed on the case of Habib Metropolitan Bank Limited v. Abid Nisar [2014 CLD 1367 ], wherein, it was observed as follows:- "...Compliance of mandatory provision of law is more important than wisdom of individual which negates such compliance. The scheme of sections 9 and 10 of Ordinance 2001 is such that once a suit is filed and leave application is preferred the consequences must follow as the scheme of Ordinance 2001 does not provide filling up of lacuna at later stage and hence not curable."
32.Indeed, both the Financial Institution and 'customer' under sections 9(3) and 10(4) have identical statutory obligations not only to plead but clearly state about the 'finances availed' by a defendant, 'repayments' made, by him, the dates thereof, and the, amounts of finance still repayable. Apart from these requisites, a defendant has been saddled with further responsibility to also specify the `amounts disputed' by him and facts in support thereof.
As seen a defending 'customer' has also been made responsible to put forward a definite case in terms of sections 10(3), (4) and (5) of F.I.O., 2001 [XLVI of 2001]. Besides, a Defendant is also required to plead in his Leave to Defend Application his/its' accounts and the relevant facts regarding amounts if, disputed and not repayable by him to Financial Institution. In terms of subsection (8) of section 10 and subject to subsection (11), 'Leave to Defend' to a Defendant for defending the suit is to be granted on the consideration of the 'contents' of plaint, Leave to Defend Application and Replication [Replica] if, a Banking Court reached the conclusion that 'substantial questions' of law or fact have been raised. On the aforesa id aspect of the matter , reliance can be placed on the case of Appollo Textile Mill Ltd. v. Soneri Bank Ltd. [2012 CLD 337] wherein, the Hon'ble Supreme Court of Pakistan while, dilating upon the `mandatory nature' of the provisions of F.I.O., 2001 [Ordinance No. XLVI of 2001] and adverse consequences thereof, has observed/held as follows:- "18. The Financial Institutions (Recovery of Finances) Ordinance, 2001 i.e. is a special law. It provides a special procedure for the banking suits. The provisions of the Ordinance, 2001 under section 4 thereof override all other laws. The provisions contained in the said Sections require strict compliance. Non-compliance therewith attract as above referred, consequences of rejection of leave petition along with decree etc. etc. Applying all the settled and well known principles to determine the mandatory construction of a provision of law, the said provisions cannot but be held to be mandatory . This Court in the case of 'Niaz Muhammad v. Fazal Raqib'
(PLD 1974 SC 134 ) held that:-- "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory , with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the legislature, by, carefully attending to the whole scope of the statute to be construed. As a genera l rule however , a statue is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently , if the Act is directory , its disobedience does not entail any invalidity; if the Act is manda tory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision". [Underlining is mine].
21. The similarity of the provisions legislated in sections 9 and 10 ibid, as discussed above, leads to identical consequences in the absence of, the demanded Accounts and the documents. Suit of the plaintif f institution will be rejectable while defendants' leave petition will be exposed to rejection etc. A Plaintif f institution may be rendered unable or deficient in appropriately setting up its answers to the accounts, disputed amounts and facts of the defendant in reply to the leave application as per section 10(8) ibid. And that in the absence of the requisite accounts and the facts etc. in defence filed by a defendant in the leave petition, a plaintif f will remain unaware of the admitted or denied or disputed accounts and facts of the defendants, to adequately , seriously and reasonably pursue the suit and its trial. This will obviously defeat the intent and the object of the provided provisions of The Financial Institutions (Recovery of Finances) Ordinance, 2001)." [Emphasis supplied]
33. As seen the scope of a Banking suit under provisions of F.I.O., 2001, has been well defined. The controversies in terms of sections 9 and 10 of F.I.O., 2001 [Ordinance No. XLVI of 2001] evidently , have been restricted/confined to the 'availed', 'claimed', `disputed amou nts' and facts in support thereof. Besides, the `controversial details', the 'unnecessary facts', 'time for the trial' of the 'lis' has also been curtailed and specified under F.I.O., 2001. Ex-facie, the trial of a lis' in the Banking suit has been restricted to the 'quantum of amounts' claimed and 'disputed'. A Banking suit, it is needless to say, is a suit for accounts and based on 'credit', 'debit' and balance entries in the Books of Accounts.
34. As far as the contention of Mr. Haris Rashid Khan to the effect and extent that after granting of leave to defend to Respondent Bank, the. 'PLAINT' should have not been rejected by the Banking Court is not correct. Under law, the Banking Court at 1st instance is required to decide the fate of Leave-to-Defend Application on merits in either way and thereafter , the Banking Court is at liberty to reject the plaint if, reache d the conclusion that the case fell/liable to be dismissed under any clause of Order VII, Rule 11, C.P.C. The Bank ing Court, however , in our view, before giving finding on. Leave-to-Defend Application cannot reject the plaint under Order VII, Rule 11, C.P.C. The provisions of Sections 9 and 10 of FIO, 2001, came-up for scrutiny before the Court in the case of Bankers'
Equity . Ltd and 5 others v. Messrs Bentonite Pakistan Ltd. through Chief Executive and 7 others [2010 CLD 651], when the Hon'ble Division Bench of Laho re High Court, Lahore while, upholding the order passed by a Single Bench of Lahore High Court Lahore where-under the Plaint was rejected after rejection of the Leave-to-Defend Application on its' own motion/examination of the plaint simultaneously , has observed as follows:-
18. The contention of the learned counsel for the appellants that after the dism issal of the petition for leave to appear by the Judge Banking Court, the suit of the plaintif fs should have been decreed automatically is not correct.
The Courts of law are under a legal obligation to apply their mind and correct law notwithstanding the fact that defendant in the suit has appeared or not before the Courts during the proceedings. Reliance is placed upon judgment reported as Haji Ali Khan and Company , Abbotabad v. Messrs Allied Bank of Pakistan Limited, Abbotabad PLD 1995 SC 362 .
19. Respectfully following the case-law already holding the field, this Court is of the confirmed opinion that the statement of facts narrating the accounts given in paragraph No 18 of the plaint and reflected in the documents annexed with the plaint have been held to be not a statement of account as visualized by the provisions of Bankers'
Books Evidence Act, 1891 and therefore the plaint in the suit instituted by the appe llants was not supported by the statement of accounts as per provision s of section 9(2) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, which provisions are held in the earlier judgments passed by the two Division Benches of this Court to be mandatory . The plaint has, therefore been rightly rejected by .the learned Judge Banking Court/Single Judge of this Court vide impugned judgment dated 13-3-2002.
20. It shall be further important to submit that a rejection of plaint under Order VII, rule 11 of C.P.C. does not preclude a plaintif f from instituting a subsequent suit on the basis of same cause of action and which provision is contained in Order VII, rule, 13 of C.P .C., which is reproduced as under:- "Order VII, Rule 13 of C.P.C. When reject ion of plaint does not preclude presentation of fresh plaint: --The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintif f from presenting a fresh plaint in respect of the mine cause of action."
35. Mr. Haris Rashid Khan, learned counsel for the Appellant [Plaintif f] next urged that learned Banking Court instead rejecting the plaint, ought to have allowed the Appellant's [Plaintif f's] Application for AMENDMENTS . As far as, this contention of the learned counsel for Appellant [Plaintif f] is concerned, a Court, no doubt, always is vested with power to allow / not allow amendments in its discretion in the pleadings, if, such amendments are of the nature which do not change the substance and/or nature of the suit. In the case in hand, the Appellant [Plaintif f] had asked for about 18 amendments by raising new inconsistent and divergent pleas against that which were earlier raised.
36. A Court, of course, is vested with power to allow amendments in its discretion in the pleadings at any stage of proceedings but in no event, binds the Court to allow the 'amendments' whatsoever in all cases, as and when, an application in that regard is filed. On this aspect of the matter reliance can be placed on the case of Messrs Maroof Knitwear (Pvt.) Limited through Chief Executive and 8 others v. Allied Bank of Pakistan Limited [2003 CLD 1610 SC] wherein, it was held as follows:- "4. There is no cavil with the proposition that the Court in its discretion is vested with the power to allow amendment in its discretion in the pleadings at any stage of the proceedings but it does not bind the Court to allow the amendment in all the cases once an application is moved. The discretion exercised by the Court for not allowing the amendment in this case has not been shown to have suffered from any illegality or arbitrariness, therefore, we find no merits in this petition. [Emphasis supplied]
37. In the case in hand since, no any relationship of a `customer' and Bank/Finan cial Institution, existence of any finance, and default in respect any obligation thereof, has been established on the record through assertions in the plaint, as such, even the filing of the suit for Declaration against the Respondent Bank, was not only incompetent in law but also mis-conceived if, seen in juxtaposition of section 9 of F.I.O., 2001. In this view of the matter , as well, the 'PLAINT' was rightly REJECTED by Banking Court-I, at Karachi through the `impugned order' dated 04.01.2018 [Annexure 'A' to MoA].
38. For all the above, we have come to the conclusion that the 'impugned order' dated 04.01.2018 besides, validly passed is well reasoned, as such, does not call for any interference by this Court. Resultantly , instant 1st Appeal as being devoid of any merits was `dismissed in limine' by our short order dated 23.02.2018, however , with no order as to costs.
39. These are the reasons for our short order dated 23.02.2018.