RANA BHAGWAN DAS, J.- Objections raised by the office appear to be technical in nature and would not render the petition liable to dismissal.
2. By this Constitutional Petition under Article 199 of the Constitution, petitioners Nos. I to 3, who are the Directors of a private limited company namely "Agripak Insecticide Industries (Pvt.) Limited" have impugned notices dated 15.1.1996 and 7.2.1996 issued under Sections 81 and 82 respectively of the Sindh Land Revenue Act, 1967 (hereinafter referred to as the Act, 1967) in the following circumstances:
3. Respondent Bank sanctioned running finance facility of Rs.4.2 millions to the Petitioner's company subject to the conditions mentioned in its letter dated 16.2.1992. An agreement was accordingly executed between the parties and Saroor Ahmed, one of the guarantors, executed a memorandum of deposit of title deeds and an irrevocable general power-of- attorney, in favour of the Bank, whereas petitioners and their brother, Tahseen Mahmood Azfaree executed a guarantee for repayment of the Bank loan. Besides an agreement of floating charge was executed between the company and the Bank and a letter of hypothecation was also executed. The running finance facility was accordingly availed of by the company whereas the petitioners did not repay a single penny towards the finance facility availed of by them. By the notice dated 15.1.1996, respondent No. 2 acting under the provisions of Section 81 of Act, 1967, called upon the petitioners as well as their brother Tahseen Mahmood Azfaree and the company to make payment of Rs.54,39,000/- within 15 days from the date of receipt of the notice being the arrears of Land Revenue failing which legal action under Act; 1967, for recovery of above dues shall be taken against them. It seems that the petitioners did not respond to this notice whereupon this respondent was obliged to issue another notice under Section 82 of Act, 1967 on 7.2.1996 reminding the petitioners that they were served with the notice under Section 81 of Act, 1967, requiring them to pay Rs.54,39,000/- being over-dues of the Bank within 15 days but they failed to make payment. By this notice they were called upon to pay the aforesaid outstanding amount within 30 days from the date of receipt of notice failing which a warrant of arrest/distraint warrant shall be issued against them for the recovery of over- dues as arrears of land revenue. The petitioner's company, it seems, did not respond to this notice and raised legal objections by their letter dated 3.7.1996 for the first time that the amount demanded could only be determined by a Banking Tribunal, that the proper course for the Bank was to initiate the proceedings before the Banking Tribunal under Section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 (hereinafter referred to as Ordinance) and after determination of the liability to take proceedings under Section 41 of the Ordinance and that the notices issued to them were illegal and without jurisdiction. In their reply they expressed their readiness to pay of the loan amount in monthly instalments requiring respondent No. 2 to fix easy instalments without recourse to Banking Tribunal and in the alternative the Bank be advised to have the amount determined by a Banking Tribunal which shall be binding on the parties. The company prayed to the respondent No. 2 to withdraw warrant of arrest and to fix instalments of which first instalment shall be deposited within seven days and future instalments in due course of time.
4. Instead of denying the financial liability to repay the amount availed of by way of finance facility with mark-up thereon and disputing the amount shown in the two notices, petitioners have referred to Article 4 of the Constitution, case law from different Courts and Sections 40 and 41 of the Ordinance in the petition.
5. Alongwith the petition, petitioners moved miscellaneous application No. 5153/96 under Order XXXIX rules 1 & 2 CPC praying for a temporary injunction restraining the respondents from continuing the proceedings on the basis of the impugned notices except in due course of law.
6. On behalf of respondents, respondent No. 2 has find a parawise counter-affidavit to the injunction application denying the grounds urged in support of the petition. It is stated that the principal debtor executed a demand promissory note alongwith its Directors jointly and severally in favour of respondent Bank in the sum of Rs. 53,59,200/-, Annexure R/I. The petitioners also executed a joint guarantee alongwith their brother Tahseen Mahmood Azafree, Annexure R/2, finance agreement for short-term finance, agreement of floating charge, letter of hypothecation, letter of pledge and undertaking, all dated 24.3.1992 executed by them and their brother Tahseen Mahmood Azfaree in favour of respondent Bank, Annexures R/3 to R/7. It is explained that the assistance was extended in an amount of Rs. 4.2 Millions on mark-up basis at 48 paisas per thousand per day payable quarterly with a cushion period of 210 days for by back price. Thus, an amount of Rs.53,59,200/- being the admitted amount inclusive of principal calculated mark-up.
Added to the aforesaid amount is a sum of Rs. 79,800/- towards excise duty making a total amount of Rs.54,39,000/- which is the determined and established amount of dues outstanding against the petitioners.
7. We have heard learned counsel for the parties and gone through the material on record. From the trend of arguments, it is evident that the availment of finance liability repayable with mark-up at the rate of 48 paisas per thousand per day payable quarterly with a cushion period of 210 days for by back price is neither denied nor disputed. It is further apparent from the documents placed on record that there has been mortgage of urban immovable property, hypothecation of stocks of raw7 material, finished goods of the value of the finance, floating charge on the entire immovable assets of the company, personal guarantees of the Directors and a demand promissory note for the by back price executed for and on behalf of the petitioners and the company in favour of respondent Bank of which not a single penny has been repaid towards the finance facility to the lending Bank. Learned counsel for the petitioners took a serious exception to the notices impugned in this petition on the ground that the respondent Bank did not resort to the provisions of Sections 40 and 41 of the Ordinance. Section 40 of the Ordinance postulates that in case of default and notwithstanding any proceedings taken by the Bank before the District Judge for recover}' of the amount, the Bank may take over the management of the concern, and may sell or release any property pledged, mortgaged, hypothecated or assigned by the concern to secure its liability to the Bank. Section 41 of the Ordinance provides that without prejudice to the provisions of Sections 39 and 40. All sums due to the Bank shall be recoverable as arrears of land revenue provided that no sum shall be so recovered unless 15 days' notice has first been given by the Bank to the debtor that the sum will be so recovered. While learned counsel does not dispute that the debt in the event of default is recoverable as arrears of land revenue, learned counsel heavily relied upon second proviso to Section 41 which was omitted by Ordinance IV of 1981 and required the Bank to extend the concession of repayment of loan amount in instalments. This argument on the face of it, is misconceived and fallacious as the proviso relied upon is no longer available on the statute book. As to the requirement of 15 days' notice before the recovery of the amount by way of arrears of land revenue suffice to say learned counsel for the respondent Bank issued a notice in terms of Section 41 of the Ordinance to the petitioners limited company on 14.2.1995 clearly mentioning the principal amount, amount on account of mark-up and excise duty calling upon the company to make payment of the amount within 15 days of the receipt of the notice failing which the Bank shall proceed to recover the same under Section 41 of the Ordinance or under any other law for the time being in force. A copy of this notice was find in Court alongwith the counter-affidavit to which no affidavit in rejoinder has been find. Seemingly the petitioners are fully aware and conscious of their liability' as well as the position in law that they cannot escape their legal and statutory liability to repay the loan amount. Indeed the petitioners are not entitled to claim the extraordinary concession of easy instalments for re-payment of the loan amount and no exception can be taken to the impugned notices issued by respondent No. 2 for effecting the recovery of the loan amount.
The fact that they did not repay a single penny towards the payment of loan amount during the last over for years speaks volumes for itself and they cannot succeed on the score that by issuing the notices under the provisions of the Ordinance, respondent No. 2 acted without lawful authority or without jurisdiction.
8. The matter does not end here. Respondents by their own letter dated 6th January/February, 1996 addressed to respondent No. 2 conveyed to him that due to law and order situation at Karachi and on account of unavoidable circumstances, commercial operation of the company had been suspended for the last two years. They further added that due to disturbed commercial operation and piling of market debts the company had suffered heavy losses which resulted in non-payment of Bank loan. The letter ended with the assurance that the company had decided to repay the outstanding dues upto 15th April, 1996 but as observed, hereinabove they did not care to pay a single penny to the respondent Bank to discharge their liability.
9. Finding him on weak wicket, learned counsel for the petitioners referred to the following cases (i)
Ark Ocean Lines Limited Company V. Director of Industries & Mineral Development (PLD 1976 Karachi 610i, iii) Utility Stores Corporation of Pakistan v. Punjab Labour Appellate Tribunal (PLD 1987 SC 4471, (iii) Agricultural Development Bank of Pakistan v. Sanaullah Khan (PLD 1988 SC 67), Hussain Ali v. Government of Pakistan (1989 Civil NLR 609) (v) Atai Corporation v. Government of Pakistan (.1992 M LD 1131), (vi) Grain System (Pvt) Ltd. v, ADBP (1993 M LD 10311, & (vii) Muhammad Yaseen v.
ADBP (1995 M LD 12).
10. In the case at serial No. (i) a Division Bench of this Court ruled that the recovery proceedings under the Land Revenue Act would be available only in case of the amount claimed was due and since the amount claimed was in serious dispute, it was not open to the respondent No. 1 to resort to coercive recovery proceedings under the Land Revenue Act. We are afraid the reported case does not improve the case of the petitioners whose liability stands fully determined and undisputed.
11. The case at serial No. (ii) arose out of the proceedings under the Industrial Relations Ordinance, taking the view that the condition of gi ant of jurisdiction is that it should decide the matter in accordance with law. Honourable Supreme Court observed that when a Tribunal goes wrong in law, it goes outside the jurisdiction confered on it because Tribunal has jurisdiction to decide "rightly" but not the jurisdiction to decide 'Wrongly '. There can be no scope of cavil with the proposition of law but the petitioners have utterly failed to demonstrate as to how and in what respect respondent No. 2 acted without lawful authority or in excess of the jurisdiction conferred on it.
12. In the case at serial No. Iii)) Zaffar Hussain Mirza, J. (as his Lordship then was) speaking for the Bench dealing with a case of recovery of loan amount under the Agricultural Development Bank Ordinance, 1961 observed that all provisions of law' which authorised any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount of dues as affixed, ascertained and determined sum of money. We are unable to find any rule of law laid down in this judgment supporting view of the petitioners that the notices issued to them were issued without determination of the amount as it was now here disputed and impugned. Besides the amount demanded was disputed in the report case.
13. In Hussain Ali's case a Division Bench of this Court struck down a notice issued under Act. 1967 for recover of disputed amount as land revenue because the case pertained to breach of contract and involved a claim for damages.
14. To the same effect are the judgments in Grain System Limited and Muhammad Yaseen's cases where the amount demanded ^as seriously disputed.
15. In the last case decided by a Single Judge of the Lahore High Court, it was observed that arrest and detention of a person is extreme step for recovery of loan because it involves his liberty and honour which cannot be violated in routine. In the reported case, the petitioner besides mortgage and hypothecation of his agricultural property had deposited certain amounts with A.D.B.P, and was arrested and released thrice for non-payment of instalments. The petition was decided under Section 25 of the Agricultural Development Bank Ordinance which is completely distinct from the provisions of Sections-40 and 41 of the Ordinance.
16. Be that as it may, various options being available to the respondent Bank under the special law for recovery' of amount by way of arrears of land revenue and on failure of the loanee to respond the notice to pay the amount, recovery by way of warrant of arrest can neither be declared without lawful authority nor in excess of jurisdiction.
17. Needless to over-emphasise, the petitioners having taken no steps for repayment of the loan amount for a period over for and half years and quietly sleeping over their obligations for inordinately long period even after the service of statutory notices under the Land Revenue Act as well as the Ordinance are estopped from challenging the notice and not entitled to the discretionary and equitable relief in the exercise of Constitutional jurisdiction of this Court. The petition also seems to suffer from laches and doctrine of estoppel by their conduct inasmuch as the notices were issued as far back as 15th January, 1996 and 7th February, 1996, the petition was pressed into sendee for the first time on 12.11.1996.
18. For the foregoing reasons, we find no merit in this petition, which is without any substance and accordingly dismissed in limine. With the dismissal of the petition, miscellaneous application stands disposed of.