' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The learned Presiding Officer, Banking Tribunal N.-W.F.P., Peshawar, by his judgment dated 21-3-1994 passed a decree for the recovery of Rs,1,16,694 in favour of the respondent-bank herein against the applicants/appellants. The applicants, feeling aggrieved, filed FA.B. No,4/1994 under section 9 of the Banking Tribunals Ordinance (No,LVIII of 1984)
(hereinafter called as the Ordinance) in this Court against the impugned judgment and decree aforesaid.
2, Along with the appeal, the applicants have filed the instant application for exemption from depositing the decretral amount in the said appeal on the following grounds:
(a) That the mortgage property which was considered sufficient security for obtaining loan, should also be held sufficient security for the satisfaction of the decree.
(b) That the decree appealed against is without jurisdiction as Banking Tribunals Ordinance (No, LVIII), 1984 has not been extended to Swat Area (PATA Area) in terms of Article 247 of the Constitution of Pakistan.
(c) That the whole decretal amount is interest/Riba. The actual loan which the bank advanced to the appellants' loanees was Rs,6,00,000 and the appellants had already paid Rs,6,05,770 meaning thereby that the appellants have paid more than the actual loan.
(d) That as per the judgment of the Supreme Court, Riba/interest is against the Injunctions of Islam hence the decretal amount legally is not due as such the applicants/appellants are not liable to pay it."
3. All these grounds, we are afraid, are untenable. In order to dispose of the aforesaid grounds it would be proper to reproduce hereunder section 9 of the Ordinance:--
9. Appeal.--(1) Any person aggrieved by any order of the Banking Tribunal passed under subsection (4) or subsection (5) of section 6 or a decree or sentence passed under this Ordinance may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court: ' Provided that no appeal filed by the defendant against a decree shall be entertained unless the defendant has deposited with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 or the decretal amount: ' Provided further that, where the claim of the banking company is based on the default of the defendant in payment of agreed instalments the deposit shall be to the extent of the amount of instalments in default.
(2) An appeal under subsection (1) shall be heard by a bench of not less than two Judges.
The first proviso to section 9 ante in terms unequivocal requires the defendant to 'deposit with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 of the Ordinance or the decretal amount. The use of the word `shall' suggests its operation as mandatory. Had intendment of the Legislator been to provide for any other sufficient security for the entertainment of the appeal under subsection (1) of section 9 of the Ordinance there was nothing against it to provide for the same. In other Statutes of this nature, such a provision has been enacted in the relevant law. Having omitted to enact into this section the said facility, the intendment of the Legislator is clear that this facility cannot be extended to the judgment-debtors/appellants. The first ground is thus repelled.
4. The second ground has also no merit, in that, the decree appealed against whether on merits or on the question of jurisdiction can only be entertained if the decretal amount is deposited as provided under the first proviso to section 9 ibid.
5. The third ground is equally fallacious. The judgment of the Federal Shariat Court on the question of Riba has been appealed against in the Supreme Court under Article 203-F of the Constitution of Pakistan by the Federation and is pending decision. The operation of the judgment of the Federal Shariat Court has been suspended and, therefore, this ground is not available to the applicants/appellants.
6. In so far as the fourth ground is concerned, it is within the competence of the Supreme Court to adjudicate upon the proposition as to whether Riba is against the Injunctions of Islam and whether the concept of mark-up does or does not fall within the scope of Riba/interest as envisaged by the Injunctions of, Qur'an and Sunnah. Under the Constitution of the Pakistan, 1973, this Court is not competent to go into this question.
7. In this view of the matter, this application having no substance is dismissed accordingly.
Resultantly the appeal of the applicants/appellants being not entertain able is also dismissed in limine.