IRFAN SAADA T KHAN, J. This Special High Court Appeal has been filed against the order passed by the learned Single Judge on 02.02.2017, whereby C.M.A. bearing No.14242 of 2016 under Order XXXVIII, Rule 5 read with section 151, C.P.C. and C.M.A. bearing No.11182 of 2010 under section 16 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ( F.I.O., 2001 ) filed in Suit No.B-78 of 2010 were dismissed.
2. Briefly stated, the facts of the case are that a Suit bearing No.B-78 of 2010 was filed by the appellant (plaintif f) against the respondent (defendant) under section 9 of the F.I.O., 2001 for the recovery of monies, release of securities, rendition of account and damages. During the pendency of the matter , C.M.A. No.14242 of 2016 under Order XXXVIII, Rule 5 read with section 151, C.P.C. and C.M.A. No.11182 of 2010 under section 16 of the F.I.O., 2001 were filed by the appellants. The matter proceeded before the learned Single Judge, who did not find merit in the said two applications and dismissed the same, against which the present Special High Court Appeal has been filed.
3. Mr. Asim Mansoor Khan Advocate has appeared on behalf of the appellant and stated that the learned Single Judge was not justified in dismissing the said applications filed by the appellant without considering the requirement of the provisions under which these applications were filed. While elaborating his viewpoint, he stated that in the year 1996 1997 a Company under the name of Concordia Securities (Pvt.) Limited approached the appellant for financial assistance, who upon the request of the Company provided a personal guarantee and by pledging 3.8 million shares of MCB obtained the loan for the said Company from the respondent. It is the submission of the learned counsel that the full amount of loan was paid and complete liabilities were discharged. He stated that out of 3.8 million shares of MCB the respondent Bank released only 3 million shares, however 0.8 million shares were retained illegally and incorrectly by the Bank; the appellant then requested the Bank to release these shares also since the entire liability has been cleared, however, the said request was not acceded to, as the Bank informed that there are certain liabilities against which the said shares were retained; thereafter a dispute arose between the appellant and the Bank with regard to release of the remaining shares, however, when the matter was not settled between the parties, above referred suit was filed by the appellant against the Bank and it is the claim of the appellant that a sum of Rs.1,357,638,731/- in addition to 659,474 shares of MCB have illegally been held by the respondent Bank, which may be released. According to the learned counsel though the respondent Bank has some claim but even after adjustment of the Bank's claim the Bank has no jurisdiction/justification to illegally block the amounts of the appellant, which they are under obligation to release. He stated that though suit is pending, however the appellant came to know that the respondent Bank is parting away with the amounts belonging to the appellant and it is under this background that the application under Order XXXVIII, Rule 5, C.P.C. was filed. He stated that from the order of the learned Single Judge it is apparent that no reason was assigned for rejecting these two applications, hence such dismissal order is illegal. He stated that attention of the learned Single Judge was duly invited towards section 22(6) of the F.I.O., 2001 but the same was not considered. He stated that though it has been averred that no appeal is maintainable against the dismissal of an application under Order XXXVIII, Rule 5, C.P.C. and against the order rejecting the application filed by the appellant under section 21 of the F.I.O., 2001 but since the appellant is an aggrieved person hence the instant High Court Appeal is maintainable and thus the same may be allowed by directing the learned Single Judge to decide the two applications afresh in accordance with law. He stated that no doubt an order on an application under Order XXXVIII, Rule 5, C.P.C. is an interlocutory order but since it is an "order" it is challengeable in appeal. The learned counsel then in support thereof has placed reliance on the decisions given by the Supreme Court of India in the cases of Madhu Limaye v. State of Maharashtre (AIR 1978 SC 47) and Amar Nath and others v. State of Haryana and others (AIR 1977 SC 85). He next invited our attention towards the terms "decree", "judgment", "order", "interlocutory order" and "final order" and submitted that an interlocutory order since is an order, the same is also challengeable in appeal. The learned counsel in support of his above contentions has also placed reliance on the following judgments:
1. Noor Muhammad Lambardar v . Member (Revenue) Board of Revenue, Punjab (2003 SCMR 708 )
2. Bank Al-Fatah Ltd. v . Interglobe Commerce Pakistan (2017 CLD 1428 )
3. Asif Kudia v . KASB Bank (2014 CLD 1548 )
4. Muhammad Ather Hafeez Khan v . Messrs SSANGYONG and Unsmani JV (PLD 201 1 Kar . 605 )
5. Messrs Iram Ghee Mills v . Malaysia International Shipping Corp. (1999 MLD 1434 )
6. Bank Al-Fatah v . Messrs Calimate T elips T elecom (2016 CLD 1202 )
7. Haji Abdul Wali Khan v. Muhammad Hanif (1991 SCMR 2457)
8. Balochistan Glass Ltd. v . Bank Al-Falah Ltd. ( 2015 CLD 52 )
9. Abdul Latif v. Muhammad Yousuf (PLD 1996 Kar. 365)
10. Sirajul Haq v . KDA (PLD 1994 Kar . 315 )
4. The learned counsel finally submitted that this High Court Appeal is very much maintainable and thus prayed for setting aside of the order of the learned Single Judge and to remand the matte r on these two applications for disposal in accordance with law afresh.
5. Mr. Rashid Anwar Advocate has appeared on behalf of the respondent and at the very outset stated that the instant High Court Appeal is not maintainable since it has been filed against an interlocutory order. He further submitted that the present appeal has been filed under section 22 of the F.I.O., 2001 and an appeal under that provision of law could only be filed against a "final order" and not an "interlocutory order". He stated that admittedly when no final order has been passed and the suit is very much, the instant High Court Appeal is not maintainable and merits dismissal on this score alone. In support of his contentions, the learned counsel has placed reliance on the following decisions:
1. V. M. Abdul Rahman and others v . D.K. Cassim and Sons and another (AIR 1933 PC 58)
2. National University of Sciences and Technology (NUST) Islamabad through Registrar and 2 others (2011 YLR 1070 )
3. Messrs Qadoos Brothers Poultry Farms through Abdul Qadoos v. Judge Banking Court No.1 Gujranwala and others (2018 CLD 88 )
4. Ghulam Sarwar v . Abdul Jalil and 2 others (PLD 1991 SC 500 )
5. 'Muhammad Khan v . Zarai T arakiati Bank Limited through President (2014 CLD 1596 )
6. Bank Al-Falah Ltd. v . Interglobe Commerce Pakistan (2017 CLD 1428 )
7. Pakistan Fisheries Ltd., Karachi and others v . United Bank Ltd. ( PLD 1993 SC 109 )
8. Nadeem Akhtar and another v. Messrs Dubai Islamic Bank (Pakistan) Ltd. (2013 CLD 805)
9. Syed W ajahat Hussain Zaidi and another v . United Bank Limited (2019 CLD 91 )
10. Shehryar W aqas Malik and another v . Muhammad Zafar Ali Khan ( 2018 CLD 1040 )
11. Malik lsrar Salim v . Citibank N.A., Lahore and another (2003 CLD 588 )
6. In the alternative, Mr. Rashid Anwar stated that the assertion of the appellant that their security with the Bank is higher than the liability is also incorrect as on this aspect leave to defend applicati on has already been allowed by the learned Single Judge in the suit which matter requires detailed deliberation and lengthy arguments, which is pending adjudication before the learned Single Judge. He stated that filing of these applications at this stage is wholly misconceived and premature and the same were rightly dismissed by the learned Single Judge. He stated that it is upon the request of the appellant that the Bank furnished a Bank guarantee. He stated that certain shares and sale proceeds of those shares were held by the Bank as security for the aforesaid guarantee. He stated that even the learned Single Judge while allowing the leave to defend application filed by the Bank directed the Bank to deposit a Bank guarantee before the Nazir of this Court of the differential amount, if any, between the guarantee amount plus 16% of the security being held by the Bank, which directions of the learned Single Judge have already been complied with by the Bank, hence filing of the application under Order XXXVIII, Rule 5, C.P.C. was wholly misconceived, as the learned Single Judge has already issued instructions to the Bank to deposit the Bank guarantee of the amount lying with them which, as per the learned counsel, is over and above the exposure of the appellant. He stated that in the suit the appellant has already filed their objections and matter is proceeding, therefore, there was absolutely no need for filing the application under Order XXXVIII, Rule 5, C.P.C. by the appellant. He stated that in banking law Order XXXVIII, Rule 5, C.P.C. is not applic able which, according to him, is in conflict with section 16 of the F.I.O., 2001, since banking law is a special law and its provisions would prevail over the general law. In support of his contentions, the learned counsel has placed reliance on the following decisions:
1. Mazhar Butt v. United Bank Limited and another (2012 CLD 285)
2. Capt. (Retd.) Nayyar Islam v . Judge, Accountability Court No.III and others (2012 SCMR 669 )
3. 2012 CLD 545
7. Mr. Rashid Anwar in the end stated that the issue under discussion has already been laid at rest by a Division Bench of this Court in the case of Mrs. Rukhsana Yasmeen (Yahya) v. Nazaz Ali and 7 others (2012 MLD 171), hence the present High Court Appeal being meritless is liable to be dismissed with cost.
8. We have heard both the learned couns el at considerable length and have also perused the record, the relevant law and the decisions relied upon by them.
9. The arguments of Mr. Asim Mansoor could be summarized on two primary aspects, which are (1) dismissal of the application bearing C.M.A. No.14242 of 2016 filed under Order XXXVIII, Rule 5 read with section 151, C.P.C. and (2) dismissal of C.M.A. bearing No.11182 of 2010 filed under section 16 of the F.I.O., 2001. We will first take his objection with regard to dismissal of. C.M.A. No.11182 of 2010. In this regard the learned counsel has accepted that this application could only-be filed by a financial institution and not by a borro wer but stated that if there is no bar then provisions of general law would prevail. We are afraid this is not the position in the instant mater, since the suit has been filed by the resent appellant against the respondent under section 9 of the F.1.0., 2001 hence for all practical purposes since this is a banking matter provisions of F.1.0., 2001 would apply and the matter has to be proceeded in view of the provisions contained in the F.I.O., 2001 and when it is an admitted position that the application under section 16 could only be filed by a financial institution and not by the borrower hence we see no justification to enter into this controversy and reject the contention of the learned counsel that if there is no bar then general law would prevail, whereas in the instant matter there is a bar that the matters pertaining to financial institutions are to be proceeded as per F.I.O., 2001 to provide speedy measures for deciding the matter between the bank and its customer. The decision relied upon by the learned counsel for the appellant in the case of Haji Abdul Wali Khan (quoted supra) is not applicable since the appellant himself has filed the suit against the respondent under section 9 of the F.I.O., 2001 and the matter, in our view, has to be dealt with under the provisions of F.I.O., 2001, subject to certain limitations, which are not present in the instant matter and so far as this aspect of the matter is concerned we see no reason to interfere in the order passed by the learned Single Judge which stands affirmed and the present Special High Court Appeal on this aspect is hereby dismissed.
10. Apropos the second contention of the learned counsel for the appellant with regard to dismissal of the application under Order XXXVIII, Rule 5 read with section 151, C.P.C. is concerned, before proceeding any further we deem it appropriate to reproduce herein below the provisions of Order XXXVIII, Rule 5, C.P.C. and the provisions of section 22 of F .I.O., 2001 for the sake of brevity: Order XXXVIII, Rule 5, C.P.C.
Attachment before Judgment
5. - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, - a) is about to dispose of the whole or any part of his property , or b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the court may direct the defendant, within a time to be fixed by it either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
Section 22 of the F.I.O., 2001
22. Appeal.- (1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant: Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the appellant deposits in cash with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly.
(4) An appeal under subsection (1) shall be heard by a bench of not less than two Judges of the High Court and, in case the appeal is admitted, it shall be decided within 90 days from the date of admission.
(5) An appeal may be preferred under this section from a decree passed ex-parte.
(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (1 1) of section 15 or subsection (7) of section 19.
(7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the judgment-debtor.
11. The main emphasis of the learned counsel for the appellant is that since the order passed under Order XXXVIII, Rule 5, C.P.C. is an "order" hence the same is challengeable in the Special High Court Appeal, whereas the emphasis of the learned counsel for the respondent being that the order passed on an application filed under Order XXXVIII, Rule 5, C.P.C. is an interlocutory order and hence not challengeable in the Special High Court Appeal. We have gone through the law and the various judgments and tend to agree with the submission of the learned counsel for the respondent as the decision on an application under Order XXXVIII, Rule 5, C.P.C. is an extra ordinary relief where if the Court is satisfied that the other party is likely to defeat the decree in future then under these special circumstances the Court passes order with regard to attachment before judgment. There are necessary ingredients which are to be fulfilled before grant of this order B and merely on apprehension alone this application under Order XXXVIII, Rule 5, C.P.C. is not granted. The nature of Order XXXVIII, Rule 5, C.P.C. is penal in nature and it has to be exercised with great care and caution. Here in the instant case the said application was filed on an apprehension alone that the respondent might part away with the MCB shares of the appellant held by them. This apprehension, in our view, firstly stood vanished when under the circumstances the respondent deposited the entire excess amount with the Nazir of this Court in Suit No. B-78 of 2010. Though objections, have been filed on behalf of the appellant but that issue since is pending before the learned Single Judge hence we refrain ourselves from making any comment in this behalf. Thus on the factual aspect since the entire excess amount has already been deposited with the Nazir, therefore, the apprehension of the appellant that the respondent might part away with the MCB shares belonging to the appellant does not hold any field and no lease in this behalf could now be given to the appellant as the matter would be heard and considered by the learned Single Judge in the suit in accordance with law.
12. So far as the contention of the learned counsel for the appellant that the order on an application under Order XXXVIII, Rule 5, C.P.C. is an "order" and hence appealable. Here again we tend to disagree with the submissions of the learned counsel on the fact that as per the provisions of section 22 of the F.I.O., 2001, quoted supra, it is only the final order which is challengeable and the decision on the application under Order XXXVIII, Rule 5, C.P.C., as noted above, from the language of the said provisions is a temporary allowance given to a party by restraining the other side not to sell the property till such time as ordered by the Court. This provision on the face of it appears to be an interim arrangement or an interlocutory order as it is through final orders that the matter is finally decided between the parties but in the situation of allowing the application under Order XXXVIII, Rule 5, C.P.C. the lis remains pending between the parties for final adjudication. The two decisions of the Indian Supreme Court relied upon by the learned counsel for the appellant are with regard to criminal matter hence not applicable, whereas the decision of the Hon'ble Supreme Court of Pakistan relied upon by him in the case of Noor Muhammad Lambardar (referred above) states that interlocutory order is an order in which no final verdict is pronounced. In the case of Bank Al-Falah v. Interglobe Commerce Pakistan (noted above) a distinction has been drawn by a Division Bench of this Court between an interlocutory order and a final order and it was held that in order to constitute a final order it was necessary that the same should be one by which the suit or proceedings in either way were finally disposed of. Whereas admittedly in the instant matter Suit bearing No.B-78 of 2010 is still pending between the parties. The other decisions also relied upon by the learned counsel for the appellant are found to be quite distinguishable from the facts obtaining in the instant matter. In the case of National University of Sciences and Technology (quoted above) cited by the learned counsel for the respondent the terms "interlocutory order" and "interim order" have been defined as per which an interlocutory order is a provisional order passed during the course of a legal action. In the case of Muhammad Khan v. Zarai Tarakiati Bank Limited (mentioned above) the term "final order" has been discussed, which suggests that a final order means an order which finally disposes of the rights of the parties. In the case of Nadeem Akhter (supra) a Division Bench of this Court has categorically stated that so far as matters pertaining to financial institutions are concerned there is a prohibition in filing the appeal against an interlocutory order. It was held in the case of Malik Israr Salim (referred above) that if interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made, i.e. for speedy disposal, would be frustrated. In the case of Mazhar Butt (supra), in which one of us, namely, Irfan Saadat Khan, J. was a member, the Bench declined to interfere in respect of an interlocutory matter in view of the specific bar contained in section 22(6) of the FIO-2001. Hence in view of the explicit findings of this Court in various judgments and upon ascertaining the facts obtaining in the instant matter, we are of the view that the instant Special High Court Appeal is not maintainable, so far as challenging the decision of the learned Single Judge on an application under Order XXXVIII, Rule 5, C.P.C. is concerned, since banking law is a special law which prevails over the general law and if any authority is needed in this regard the reference may be made to the decision in the case of Capt. (Retd.) Nayyar Islam (supra) passed by the Hon'ble Supreme Court of Pakistan, wherein it has categorically been held that special law excludes application of general law.
13. The upshot of above discussion is that this Special High Court Appeal is found to be bereft of any merit and is accordingly dismissed along with the pending application.
14. Above are the reasons of our short order dated 16.05.2019 whereby we have dismissed the instant Special High Court Appeal along with the listed application.