WIQAR AHMAD, J.---Petitioner is aggrieved of refusal of respondents in writing-of f his loan according to the package of Fiscal Relief to Rehabilitate the Economic Life in Khyber Pakhtunkhwa, FATA and PATA (hereinafter referred to as 'Relief Package' ) announced by the Prime Minister of Pakistan and Circular No. 1 of 2011 of State Bank of Pakistan.
2. Petitioner who has been Managing Director of Spinghar Silk Mills Pvt. Ltd Charbagh, District Swat has asserted in his petition that a loan of Rs. 35,96,000/- had been sanctioned for Silk Mills by the then Regional Development Finance Corporation Islamabad (hereinafter referred to as `RDFC '), in 1989. RDFC latter on merged into Small and Medium Enterprises Bank (hereinafter referred to as 'SME Bank '). Said loan has admittedly been repaid in the year 2006, in response to a relief package (SBP Circular No. 29 of 2003) offered by respondents to petitioner . Dispute in the present writ petition mainly revolves around the loan received by petitioner in the sum of Rs. 11,00,000/- in the year 1996 as Equity Participation Fund (hereinafter referred to as ' EPF').
Said loan had been running outstanding along with interest as accumulated thereon, when a Relief Package for total write-of f of loans in Malakand, Buner , Swat and Chitral Districts were announced by Prime Minister of Pakistan for rehabilitating the economic life in Khyber Pakhtunkhwa. For practical implementation of the Relief Package, Circular No. 1 of 2011 was also issued by State Bank of Pakistan (hereinafte r referred to as 'SBP' ) on 2nd February , 2011. Case of petitioner has also been forwarded by the SME Bank to SBP for soliciting their opinion whether case of petitioner was covered by their Package? The matter was then referred to Finance Division Government of Pakistan for said purpose, as had been advised, by SBP, but no clear opinion came from there, as well Instead the SME Bank was directed to consider the case themselves. The SME Bank could not thereafter pass an appropriate order in respect of entitlement of the petitioner , but they have stated in their comments that since the facility extended to petitioner had not been a loan and he had rather availed EPF business facility on profit and loss basis, the petitioner could not therefore be extended the benefit of the Relief Package announced by the Prime Minister of Pakistan and actualized through Circular No 1 of 201 1 of SBP .
3. Learned counsel for petitioner invited attention of this Court to various clauses of the contract executed between the Bank and borrower , for elucidating that petitioner had in-fact received a loan from RDFC and the EPF facility could not be differentiated from a loan, so as to divest the petitioner from bene fit of the Prime Minister Relief Package. He also placed reliance on earlier judgment dated 28.06.2012 of this Court given in the case of Haroon Bacha and others v. State Bank of Pakistan and others (W. P. No. 934/1 1), and submitted that when the Government of Pakistan had announced earlier package for rehabilitating economic life in Khyber Pakhtunkhwa, its benefit cannot be declined to petitioner by the respondents on the basis of illogical interpretations put upon various clauses of the Relief Package.
4. Learned counsel appearing on behalf of SME Bank reiterated the stance of SME Bank as taken in their comments and stated that they had forwarded case of petitioner for consideratio n of SBP and then before the'
Finance Division Government of Pakistan, but nowhere could he be found entitled to benefit of the Relief Package.
He also reiterated that petitioner had availed EPF business facility , which had not been a loan and that petitioner had rightly been declined benefit of the Relief Package.
5. We have heard arguments of learned counsel for the parties and perused the record.
6. The SME Bank has claimed that since the petitioner had availed EPF facility , which cannot be called as loan and case of petitioner is not, therefore covered by Circular No. 1 of 2011 issued by SBP. They have mainly been relying upon opinion of the SBP, which was given in response to letter of SME Bank, whereby the case of petitioner had been forwarded to them for consideration. Opinion of the SBP is relevant in this respect, which is reproduced hereunder for ready reference; As regards facilities under Equity Particip ation Funds which were directly provided by Federal Govt. as investment in equity of the projects of borrowers, it is advised that these facilities are not covered under above Package as you have confirmed that these facilities were not appearing as loan in the books of your bank. As per the provision of above Package/Scheme only outstanding loans of Malakand, Swat, Buner and Chitral Districts as of 31.12.2009 are eligible for relief under above Scheme.
Therefore, SME Bank may directly take up the matter with Finance Division, Government of Pakistan."
In second para of the above-reproduced letter , the SBP had asked SME Bank to consult Finance Division, Government of Pakistan in the matter , which has accordingly been consulted but they also failed to give a categorical opinion and have rather instructed the SME Bank to consider case of the petitioner themselves. The SME Bank could not consider case of the petitioner and have rather reiterated in their comments that since the transaction had not been involving any loan, therefore it could not be deemed to have been covered by Circular No. 1 of 201 1 of SBP .
7. The most crucial question for determination in the instant writ petition has been, whether the transaction made by petitioner and RDFC Bank in the year 1996 had been falling in the category of those persons to whom relief of total write-of f of loan had been extended vide Prime Minister Relief Package and then Circular No. 1 of 201 1?
8. Text of the contract between the parties is admitted and same can therefore be safely referred for answering the question. Opening para of the contract refers to the petitioner as borrower . The terms and conditions of the contract are also relevant, which are reproduced hereunder for ready reference; "Terms and Conditions
(a) Term Finance for Locally Manufactured Machinery of Rs. 3.095 Million RDFC will assist the borrower in the acquisition of locally manufactured machinery by disbursing an amount not excee ding Rs. 3.095 million (Rupees three million ninety five thousand only) being the contract price of the machinery . The borrower shall be bound and be deemed to have immediately repurchased the machinery from RDFC at a mutually agreed marked-up price of Rs. 5.148 million (Rupees five million on hundred and forty eight thousand only). ii. Payment of the funds to be regulated so as to match the assets being developed/created against the RDFC financing and will be made directly to the machinery supplier . Advance payment, if any, to the machinery supplier shall be secured against a Commercial Bank Guarantee/Insurance Bond. Repayment of the marked-up price amounting to Rs. 5.148 million shall be made by the borrower in 10 semi-annual equal installments with the first installment falling due on 30.09.1990. If the borrower makes payment of the marked-up price regularly and punctually on due dates, RDFC may allow a. suitable rebate in marked-up price. iii. Selection of machinery supplier shall be with the prior approval of RDFC. iv. Pre-inspection of the machinery during manufacture and before delivery may be undertaken by RDFC engineers or independent engineering consultant to be appointed by RDFC. The cost of fees of such consultants shall be borne by client. b) General T erm Finance of Rs. 0.500 Million )
RDFC will assist the borrower in the acquisition of specific fixed assets which it shall buy from the borrower at a cost not exceeding Rs. 0.500 million. (Rupees five hundred thousand only). The borrower shall, be bound and be deemed to have immediately repurchased those specific fixed assets from RDFC at a marked-up price not exceeding Rs. 0.990 million (Rupees nine hundred and ninety thousand only). ii. Repayment of the marked-up price amounting to Rs. 0.990 million shall be made by-the borrower in 10 semi- annual equal installments with the first installment falling due on 30.09.1990. If the borrower makes payment of the installments of the marked-up price regularly and punctually on due dates, RDFC-may allow a suitable rebate in marked-up price. iii. Any cost over-runs in the cost of project will be met by the borrower from his own sources. iv. Disbursement of the funds will be regulated so as to match the assets being developed/created against RDFC financing. v. Disbursement of the funds required to meet the working capital requirements of the project will be made after the completion of the project."
Similarly , sub-clause-iv of clause-5 of the contract, where fees and charges have been mentioned, it is provided; "iv) Loan administration fee @ 0.25% per annum on outstanding. RDFC financing, effective from the date of first disbursement."
The connotations 'loan', 'finances', 'creditor' and 'borrower' have not been defined in Circular No. 1 of 2011 of SBP but same have been the main bone of contention in the instant writ petition. For defining the terms, reference will have to be made to various laws regulating the Banking system and its allied matters.
9. To consider whether the nature of transaction incorporated in the contract between the petitioner and RDFC Bank may be equated with a transaction of loan for the purpose of acquiring benefit of Circular No. 1 of 2011 of SBP, reference may beneficially be made to provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. W ord 'finance' has been defined in clause (d) of Section 2 of the Ordinance as follows; "d) Finance" includes:- i. an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase equity support, lease, rent-sharing licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trademarks and copy-rights, bills of exchange, promissory notes or other instruments with or without buyback arraignment by a seller , participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate; ii. facility of credit or change cards; iii. facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer , with a corresponding obligation by the customer to the financial institution; iv. a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer; v. a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted; vi. any amount due from a customer to a financial institution under a decree pass ed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution."
Similarly , reference may also be made to relevant provisions of Banking Companies Ordinance, 1962, wherein 'Creditor' and 'Debtor' have been defined in clauses (dd) and (ee) of section 5 of the Ordinance. Said definitions may be helpful in the present discourse, which are reproduced hereunder for ready reference;
(dd) 'Creditor' includes persons from whom deposits have been received on the basis of participation in profit and loss and a banking company or financial institution from which financial accommodation or facility has been received on the basis of participation in profit and loss, mark-up in price, hire-purchase, lease or otherwise;
(ee) 'Debtor' includes a person to whom a banking company or financial institution to which, finance as defined in the Banking Tribunal Ordinance, 1984, has been provided."
Similarly , 'finance' has also been defined in Banking Tribunals Ordinance, 1984, in its clause (e) of Section 2, as follows; ".(e) 'finance' includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, markup or mark-down in price, hire-purchase, lease, rent-sharing, licensing, charge or fee of any kind, purchase and sale of any property , including commodities, patents, designs, trademarks and copy-rights, bills of exchange, promissory notes or other instru ments with or without by-back arrangement by a seller , participation term certificate, musharika certificate, modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided." Clause (ii) of Section 2 of the State Bank of Pakistan Act, 1956 also defines 'loans and advance' as follows; "(ii) 'loans and advance' includes finances provided on the basis of participation in profit and loss, mark-up in price, leasing hire-purchase or others."
Word 'borrower' has been defined in Section 2 of the Prudential Regulations for Consumer Financing as follows; "Borrower means an individual to whom a bank/DFI has allowed any consumer financing during the course of business."
10. All the above reproduced definitions and explanations of the words 'finance', 'loan', 'borrower', 'creditor', 'debtor', 'loans and advance' , indicate that it has been defined widely , almost in all the statues. Benefit of such definitions may be safely availed for interpreting the words 'loan', 'borrower' and 'creditor ' as such definitions have been missing in the Relief Package announced vide Circular No. 1. of 2011 of SBP. All the definitions reproduced above clearly cover a facility provided on the basis of participation in profit and loss, mark-up or mark- down in price, hire-purchase, equity supp ort etc. Definition of 'loan' cannot be restricted to the tradition loan where money changes hands with a fixed rate of mark-up, to be paid by the borrower to the lender . Such a definition would hardly cover the transactions cond ucted in modern-day banking. The insta nt case, rather require a more liberal interpretation of words 'loan', 'borrower' and 'creditor' for the reason that Government of Pakistan had announced this package with an aim and purpose. It has been for the purpose of rehabilitating economic life in an area devastated by conflict, militancy and terrorism. This Court while dealing with entitlement of other people being questioned by the lending Banks, has already held in its judgment dated 28.06.2012 in the case of Haroon Bacha and others v SBP and others (W.P. No. 931/201 1) as follows; "From the bare reading of said circular wherein scope of eligibility criteria has been mentioned in para-A Sub Clause (1) to (5) mentioned above it, is clear and there is no ambiguity . All the borrowers domiciled of Malakand, Swat, Buner and Chitral Districts who had obtained loans which is outstanding against them on 31st December 2009 will be stand write-of f. It is pertinent to note that the most effected area of Malakand Division wherefrom the inhabitants belong had left their houses and became internally Displaced Persons (IDPs) in the history of the world, is the biggest number of IDPs whose houses, fields, gardens, shops, markets etc. were damaged and they faced miseries for a long period. The business, forming gardening, schooling was not only suffered rather the same was collapsed. Their houses were damaged and articles were looted not only the IDPs were suffered rather the relatives and other citizens in the surrounding districts who gave the shelter and fulfilled their necessities were also suffered. Specially the neighboring District of Malakand Division had given sacrifices which is a history in the entire world. The Federal Government considering the miseries of the IDPs of Malakand Division after evaluating the burdens in shape of loans etc. like other packages had given the package of write-of f loans as an attempt to minimize the financial burden to the af fectees of the said Districts.
It is clearly mentioned in the said package that the borrowers who are domiciled of the above mentioned Districts are entitled for write-of f loans. There is no definition of borrowers whether they have obtained loan being agriculturist, businessman, employee of any department etc all of them are simple borrowers. In the said circular , it is nowhere mentioned that the Manager of the Bank or any high-ups of the Department from whom the borrowers had obtained loan or the State Bank will define or interpret the borrowers whose loan has been write-of f, therefore, the management of the Bank etc. cannot sit as a Judge to interpret the word borrowers and kind of loans. The State Bank circular/notification is based upon Prime Minster's Relief Package which is foundation stone of the write-of f loan granted to the borrowers as mentioned in the package as well as in notification. In the said package no bank officials even State Bank has been authorized to interpret the terms of clear Relief Package which is extended to all borrowers domiciles of said Districts mentioned in the notification. The respondent/State Bank in its write statements has admitted that their role is only that of executing body for enforcing and facilitating the Prime Minister Relief Packages. When the respo ndent/State Bank has admitted the autho rity of the Bank up to the extent of only as an executing body then respon dent/State Bank cannot categorize or interpret the express wording of the package as rendered in the above mentioned notification. The commercial Banks are obliged to follow instructions and directions of the State Bank mentioned in the circular based on the Prime Minister's Relief Package. Hence the Bank officials cannot go beyond their own limitation. They are only obliged to act upon the verdict of the notification mentioned above."
11. An approach quite similar to the one adopted by respondents Banks in the case of Syed Muhammad Yaqoob supra has been exhibited by the SME Bank in the case in hand also. They have been trying to deprive petitioner of the benefit of a Relief Package on the basis of narrower definition of the word 'loan', 'borrower' and 'creditor', which according to ratio of the said judgment cannot be allowed, so as to defeat the purpose and object of the Relief Package announced by the then Prime Minister of Pakistan.
12. One of the objections of learned counsel for SME Bank has been regarding the late filing of the instant writ petition. Same was replied by learned counsel for petitioner by stating that case of the petitioner had been under active consideration of respondents Bank and unless the matter had been finalized at end of the Bank, petitioner could not file a writ petition as same would have been pre-mature. He referred to various correspondence annexed with the writ petition including minutes of meeting of Managing Committee of Equity Participation Fund held at Pak Secretariat, Islamabad on 09.01.2014, wherein case of petitioner had also been considered and the concerned Bank had been directed to finally decide his entitlement under the Package. Learned counsel has stated that when the SME Bank failed in deciding the issue, he had then knocked the door of this Court on 25.02.2014. The explanation offered by the petitioner in the case in hand appears to be reasonable, as case of the petitioner had been under active consideration of the respondents Bank till 09.01.2014, while the writ petition has been filed on 25.02.2014. Same cannot be deemed to be barred by the principle of laches. Even otherwise, laches per-se is not an absolute bar in exercise of constitutional jurisdiction. Question of delay in filing a writ petition, is examined with reference to each case and same no doubt requires a serious consideration. Unless a satisfactory and plausible explanation is forthcoming for delay occurring in filing constitutional petition, same cannot be overlooked or ignored, for delay defeats equity . Laches has been relevant in grant or refusal of discretionary or equitable reliefs and is considered relevant, but it has never been taken as an absolute bar, in cases where petitioner is found entitled to a relief which has already been granted by Courts of law to similarly placed other petitioners. A six member Bench of Hon'ble Supreme Court of Pakistan has held in the case of Saddaqat Ali Khan through LRs and others v . Collector Land Acquisition and others reported as PLD 2010 Supreme Court 878 as follows; "And what is further deducible from the long line of judgments, some of which have been quoted above, is that once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the Courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extra-ordinary un- exceptionable reasons to the contrary and that all powers, including the powers inherent in the Courts be invoked for the purpose. This would not only ensure justice for all but would also have the effect of eliminating un-necessary litigation. And respectfully following these judgments, we endorse the views expressed therein."
Further reliance in this respect may be placed on the case of Umar Baz Khan through L. Hrs v. Syed Jehanzeb and others reported as PLD 2013 Supreme Court 268 .
13. Once we have answered the question that the transaction of petitioner with lending Bank had been covered in the definition of borrowing within the meaning of Circular No. 1 of 2011 issued by SBP, then their remains no doubt that case of petitioner has been similar to the cases of those petitioners, who had been granted relief by this Court in the case Haroon Bacha and others v. SBP and others (W. P No. 934/201 1). In the case of Hameed Akhtar Niazi v. The Secretary , Establishment Division, Government of Pakistan and others reported as 1996 SCMR 1185, Hon'ble Supreme Court of Pakistan had held that "if the Service Tribunal or Supreme Court of Pakistan decides a point of law relating to terms and conditions of service of a civil servant, which covers not only the case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demanded that the benefit of such judgment is extended to other civil servants." The dictates of good governance, in the case in hand would also require similar treatment is extended to petitioner of the instant petition and he is given same benefits of the Relief Package given to others similarly placed persons as a result of the Govt's Relief Package. Further reliance in this respect may be placed on judgment of the Hon'ble Supreme Court of Pakistan in the case of Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others reported as 2009 SCMR 1.
We can therefore be safely held that the bar of laches shall not constitute a hurdle in the way of petitioner .
14. We are not inclined to treat case of petitioner , herein, with a different yardstic k. Since, similar relief has been extended to a large number of people in the locality , we would not allow the petitioner to be differentiated and give a different treatment. By allowing the instant writ petition, we would therefore direct the SME Bank concerned to treat the petitioner accordingly and extend him the benefit of Circular No. 1 of 201 1 issued by SBP .