' This judgment shall dispose of Writ Petitions Nos.8615, 7867, 8143, 8321, 8370, 8755, 9041, 9055, 9057, 9058, 9078, 9467, 9491, 9494, 9588, 9880, 9885, 9886, 9887, 9976, 10189, 10405, 10493, 10686, 10687, 10688, 10689, 11101, 11203, 11204, 11211, 11249, 11250, 11254, 11258, 11270, 11271, 11454, 11455, 11488, 11502, 11577, 11693, 11694, 11977, 11978, 12003, 12050, 12099, 12169, 12172, 12264, 12268, 12548, 12922, 13009, 13128, 13183, 13184, 13185, 13227, 13242, 13243, 13412, 13618, 13622, 13642, 14025, 14215, 14216, 14217, 14314, 14352 14375, 14417, 14751, 14925 14926, 15385, 15399, 15557, 15561, 15614, 15631, 15632, 15633, 15634, 16181, 16182, 16293, 17346, 17347, 17348, 17349, 17350, 17351, 17352, 17353, 17354, 1'7355, 17356 of 1993 and 173 of 1994 as in all of them a prayer in the nature of writ of mandamus is sought that the respondents banks be directed to extend facility of 90% equity as undertaken by them and the other respondents, shall make arrangements for the delivery of disputed vehicles.
2. Facts briefly are that a Scheme known as Prime Minister's Incentive Scheme for Revamping Public. Transport, (hereinafter referred to as the "Yellow Cab Scheme") was approved by the Federal Government on 6-10-1991 and in consequence thereto S. R.O. No,1047(I)/91 was issued on 14-10-1991 under section 19 of the Customs Act, 1969 (IV of 1969) and subsection (1) of section 43 of the Sales Tax Act, 1985 (I of 1985) allowing the import of vehicles without payment of Customs Duty, Sales Tax and Surcharge with certain conditions detailed therein. Initially this scheme was restricted to the import of taxi cars and mini buses but subsequently its scope was enlarged and vehicles of various other descriptions were included in the scheme. They were to be imported through nationalized Banks in the ratio of 70% and 30% in the beginning but this ratio was changed to 90% and 10% subsequently. It is pertinent to mention here that under the original notification dated 14-10-1991 import of vehicles under Yellow Cab Scheme was extended from time to time and finally by Notification No,S.R.O. 493(1)/93, dated 14-6-1993, the Government withdrew the time limitation. The import of all these vehicles .Under the Yellow Cab Scheme was allowed through car dealers and local representatives of the Automobile manufacturers, who were also permitted through latter amendments in the scheme to book orders on behalf of individuals desirous of importing the vehicles and process their applications.
3. Petitioners in all these petitions have deposited 10% equity ratio for the import of vehicles with the Banks which was onward transmitted to the car dealers. Consequently, letters of credit for importation of the vehicles were opened. The 90% equity was to be paid by the respective banks which accepted the deposits of 10% equity ratio from the petitioners.
4. This Scheme remained in vogue until the dissolution of Assemblies on 18-7-1993 in its original form but subsequently with the take over by the Care Taker Government, two Notifications S.R.O.
No,815/(I)/93, dated 16-9-1993 and S.R.O. No,825(I)/93, dated 20-9-1993 were issued changing the structure of custom duty. A direction was also issued to the nationalized banks by the State Bank of Pakistan not to open any further letters of credit for import of vehicles under the Yellow Cab Scheme. Simultaneously the Ministry of Finance also issued direction to all the nationalized banks not to disburse any further loan component to persons who had registered their applications for import of vehicles and deposited 10% debt equity ratio. In all these writ petitions, a direction in the nature of writ of mandamus is sought that the nationalized banks which have accepted 10% debt equity ratio from the petitioners be directed to extend 90% equity ratio earlier undertaken by them under Yellow Cab Scheme.
5. Since the cases have been argued at length, as such, these are disposed of as pacca matters.
The arguments in these cases have mainly been advanced by Mr. Mushtaq All Tahirkheli, Miss Yasmin Seagal, Mr. Ahmed Awais, Mr. Muhammad Yousaf Asim and Mr. Ahmad Hassan Khan. The other counsel appearing in these cases have mostly adopted their arguments. It is argued by them that a vested right accrued in favour of the petitioners cannot be taken away as no locus penitential is left to retrieve the steps already undertaken. To substantiate this argument that the nationalized banks are bound by the undertaking, it is stated that the Pakistan Banking Council constituted under section 9 of the Banks (Nationalization) Act, 1974 participated in the formation of Yellow Cab Scheme sanctioned by the Federal Government which provided that 90% debt equity was to be given by the nationalized banks. The scheduled banks having accepted 10% equity are bound to follow the directions of the Federal Government in letter and spirit under sections 9 and 15 of the Banks Nationalization Act, 1974 and it is too late in the day for them to deprive the petitioners of their vested right accrued in their favour. The principle of promissory estoppel is also pressed into service which, according to the learned counsel, casts a duty upon the respondents-banks to perform their part of the obligation after having accepted 10% equity under the direction of the Federal Government through Pakistan Banking Council. It is stated that banks after their nationalization in the year 1974 through Banks (Nationalization) Act, 1974 are completely at the beck and call of the Pakistan Banking Council. An argument has also been advanced that it is not a contract simplicitor but an obligation, imposed by the Federal Government upon the scheduled banks through the representation of the Pakistan Banking Council. The banks have got no choice either to reduce the equity or enhance the same. They do not have any independent discretion of their own at all. Had it been an act of the banks alone, it could have been termed as a contract. The documents stated to be got signed/executed by the banks from the petitioners were in anticipation of the provisions of 90% equity, as such, their terms would take effect only after the extension/advancement of 90% equity as required under Yellow Cab Scheme. A further argument has been advanced that the petitioners have been meted out a discriminatory treatment as respondents-Banks have released 90% equity in case of certain other persons. As regards the availability of other remedy, it is argued that a duty cast upon the public body shall be enforced through the exercise of Constitutional jurisdiction and the lengthy protracted civil process be not adopted. In support of their contentions reliance has been placed upon Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407, Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546, M/s. Sandal Fibres Ltd. v. Government of Pakistan and 7 others PLD 1992 Lah. 400, M/s. Zasha Ltd.
(Public) Ltd. Company, Lahore v. Agricultural Development Bank of Pakistan, Islamabad and 2 others PLD 1993 Lah. 914, M/s. Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652, M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563, M/s. Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh and 2 others PLD 1992 Kar. 283, Century Spinning and Manufacturing Co. Ltd. And another v. The Ulhasnagar Municipal Council and another AIR 1971 SC 1021 and M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Pradesh and others AIR 1979 SC 621.
6. Mr. Faqir Muhammad Khokhar learned Deputy Attorney-General and the learned counsel appearing for the respective Banks have challenged the very maintainability of these writ petitions.
They have argued that the respondents-Banks except the National Bank of Pakistan are companies registered under the Companies Act, 1913 read with Banking Companies Ordinance, 1962 and in spite of their nationalization under Banks (Nationalization) Act, 1974 their status as bodies corporate has been kept intact by section 5(5) which provides that "the provisions of this Act and the vesting of shares of the banks in the Federal Government thereunder shall not in any way affect the status of the banks as bodies corporate under the Companies Act, 1913 (VII of 1913)."
They are independent of the Government and have got their individual entity. As regards the National Bank of Pakistan it is argued that though it is a creature of statute but since there is no violation of any law and rules, as such the writ petitions would not be maintainable. On the point of promissory estoppel it is argued that the Banks have not made any representation on the basis of any statutory provisions violation of which can be enforced through writ of mandamus. It is stated vehemently that these are purely commercial transactions viz-a-viz the petitioners with the Banks and ail the petitioners executed number of documents, terms whereof were formulated in the combined meeting of all the Banks. The documents so executed are as under:---
(1) Promissory Note
(2) Facility Letter
(3) Agreement for Sale & Buy Back of Marketable Securities.
(4) Letter of Hypothecation.
(5) Agreement for Financing for Short/Medium/Long term on Mark up Basis.
(6) Hire Purchase Agreement.
(7) Undertaking for insuring the vehicle.
7. All the petitioners approaching the Banks for the grant of facility, executed the aforementioned documents and agreed with the terms mentioned therein. It is provided in the Facility Letter as well as in the Finance Agreement so executed that the Banks shall at all times be at liberty and shall have the right to cancel or reduce the facility. It was further agreed between the parties that the Banks shall have the right to demand immediate payment of purchase price at any time without assigning any reason. Since it is purely a contractual matter and has not arisen out of any statutory provisions, as such the writ of mandamus would not be available and the proper remedy for the petitioners would be either a suit for specific performance or for damages. In support of their contentions reliance has been placed upon Muhammad Din and Sons Shandara Mills, Lahore v. The Province of West Pakistan and 5 others PLD 1969 Lah. 823, Zeaul Haq v. The East Pakistan Cooperative Insurance Society Ltd. And others PLD 1969 Dacca 105, Salahuddin and 2 others and Frontier Sugar Mills and Distillery Ltd. And others PLD 1975 SC 244, Badruddin H. Mavani v. M/s. Commerce Bank Ltd. PLD 1975 Kar. 182, Darab Shah B. Dalal. v. M/s. Muslim Commercial Bank Ltd. PLD 1977 SC 457, M. Muzaffaruddin Industries Ltd. v The Chief Settlement & Rehabilitation Commissioner, Lahore and others 1968 SCMR 1136, Mian Nazir Sons Industries Ltd. Etc. v. Government of Pakistan and others 1992 SCMR 883, Inayatullah Narejo v. The United Bank Ltd. Of Pakistan and others 1988 CLC 1446 and Adam Limited v. Habib Bank Ltd. And others 1990 CLC 1045.
8. The prayers for issuing directions to the respondent-banks to extend the facility of 90% equity in accord with the undertaking and a direction to other respondents for arranging the delivery of disputed vehicles admittedly relate to and directly flow from the obligations which came about between the parties. This position has a direct nexus with the accrual of cause of action to the writ petitioners as also to the respondents in the matter. The burden on the writ petitioners is to show that any statutory provision preceded the creation of these obligations with the result that in the event of failure on the part of the respondent-Banks to abide by any such provision, the writ petitioners will have the right to resort to Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is the case of the writ petitioners themselves that only an executive decision made by the Federal Government was all that became a forerunner for the initiation of flow of financial assistance to them 'tinder the Yellow Cab Scheme. The facts that Yellow Cab Scheme remained in vogue until the dissolution of Assemblies on 18-7-1993 and by 21-9-1993 the then care-taker Government affected changes in the structure of customs duty as well as directed the nationalized Banks and the State Bank of Pakistan not to open any further letters of credit for import of vehicles under the Yellow Cab Scheme. Simply point out the various steps taken by all Concerned in the matter of dealing with the obligation to extend or otherwise 90% equity by the respondent Banks under the Yellow Cab Scheme. In the absence of violation of any statutory provision by the respondent-Banks in this behalf, no occasion for enforcement of the contractual obligations under the Yellow Cab Scheme by this Court, has arisen.
9. Even the argument that the Federal Government had imposed an obligation on the scheduled Banks through the Pakistan Banking Council and that the same can be got enforced through these proceedings for the reason that the scheduled Banks have got no choice to reduce or enhance it any more, cannot be equated with creation of an obligation on all the respondents to see to it that the writ petitioners are entitled to the extension/advancement of 90% equity, as required under Yellow Cab Scheme. The National Bank of Pakistan no doubt, is the creation of a statute but in the absence of violation of any law and/or rules by it, the instant petitions against it are also not maintainable
10. Adverting to the argument on behalf of the writ petitioners that the execution of various documents by them on the asking of the respondent-Banks in anticipation of the provision of 90% equity to them, operates as promissory estoppel and as the Federal Government through Pakistan Banking Council has a complete control on the nationalised Banks, the latter have no discretion of their own with the result that a writ/order in the nature of mandamus can be issued by this Court.
Suffice it to say that these arrangements are the creation of voluntary acts of the parties in the sphere of contractual obligations reflected in the documents detailed in para. 6 above and the terms thereof are very wide in nature. The interpretation of all these documents involves resolution of disputed questions of fact which exercise cannot be undertaken in these proceedings. Moreover, the respondent-Banks cannot be compelled to perform their part of the obligations emanating out of these agreements by issuing a writ of mandamus. In the circumstances, the best course open to the petitioners would be to approach the Civil Courts of plenary jurisdiction for available relief, under the law. Even the argument of the learned counsel for the respondent-Banks that the liquidity of the Banks would be adversely affected and fraud appears to have been perpetrated by a number of persons in securing this facility, can be pleaded on their behalf in defence to the suit/s to be brought by the writ petitioners, if so advised. See the Chandpur Mills Ltd. v. The District Magistrate, Thippera and another PLD 1958 SC (Pak.) 267, M/s. Momin Motor Company v. The Regional Transport Authority, Dacca and others PLD 1962 SC 108 and K.N. Guruswa my v. The State of Mysore and others PLD 1956 SC (Ind.)
53. It is trite law that a right exclusively founded on a private contract, however, clear it may be, is not enforceable by making a resort to the Constitutional jurisdiction of this Court. See The State of Pakistan and others v. Mehrajuddin PLD 1959 SC 147.
11. In view of the above discussion the writ petitions are disposed of with the observation that the petitioners may, if so advised, make resort to instituting suits for available relief before the Civil Courts of plenary jurisdiction. There shall be no order as to costs.