' MUHAMMAD BASHIR KHAN JEHANGIRI, J.--The Regional Development Finance Corporation (hereinafter referred to as the Corporation) constituted under section 3 of the Regional Development Finance Corporation Ordinance (No,X5(XII of 1985) advanced a loan on mark-up basis to the petitioners duly secured by promissory notes, agreements to create mortgage on future assets, hypothecation agreements and letters of guarantee which had been executed by petitioners Nos. 2 to 6. In the events that happened, a sum of Rs,62,48,367 representing the principal amount and the mark-up was due from the petitioners and as they did not re-pay it despite the Corporation's notice on 14-3-1992, the Corporation filed a suit in the Court of Banking Tribunal constituted under section 4 of the Banking Tribunals Ordinance (No, LVIII of 1984) (to be hereinafter referred to as the first Ordinance) against the petitioners for recovery of Rs,62,48,367. The petitioners, it appears, did not categorically deny, in their application for leave to defend the claim, their liability qua the principal amount but controverted the amount representing the mark-up and, inter alia, pleaded that the Banking Tribunal constituted under the first Ordinance had no jurisdiction to entertain the claim against them. In this context, reference was pointedly made to section 32 of the Regional Development Finance Corporation Ordinance (No, XXXII of 1985)
(hereinafter called as the second Ordinance) which reads as under:-- "32. Corporation not to be a Banking Company.-The Corporation shall not be deemed to be a banking company for the purposes of the Banking Companies Ordinance, 1962 (LVII of 1962) or any other law for the time being in force relating to banking companies."
' On the contrary, the stand of the Corporation before the learned Tribunal was that after addition of the Corporation in the Schedule appended to the first Ordinance in pursuance of section 13 thereof, it was a Banking Company for all intents and purposes and that the jurisdiction of the Banking Tribunal notwithstanding the exclusion thereof was not barred by virtue of section 32 (supra).
2. The learned Presiding Officer of the Banking Tribunal, by his order dated 23-6-1993, decreed the suit for recovery of Rs,62,42,367 with costs. The claim for liquidated damages was, however, not entertained.
3. The petitioners preferred an appeal against the decree passed by the learned Presiding Officer, Banking Tribunal, in the Peshawar High Court, Peshawar, under section 9 of the first Ordinance. The learned Division Bench seized of the appeal, directed the petitioners to deposit with the Banking Tribunal the decretal amount in pursuance of the first proviso to section 9(1) ibid on or before the specified date as condition precedent for entertainment of the appeal. As this order was not complied with, therefore,' the appeal was dismissed.
4. The Corporation took out execution proceedings against the petitioners and one Malik Mian Ramzan. Feeling aggrieved, Malik Mian Ramzan filed in the Peshawar High Court Bench at Dera Ismail Khan Constitutional petition wherein, besides getting the provisions of the first Ordinance and the Banking Tribunals (Validation of Orders) Ordinance (No, XV) of 1993 annulled as ultra vires the Articles 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, he called in question the judgment and the decree passed on 23-6-1993 by respondent No,2 against the petitioners.
5. The learned Division Bench dismissed the Constitutional petition holding the view, firstly, that the remedy of leave to appeal before this Court against the dismissal of appeal by the High Court had not been availed: secondly, that Malik Mian Ramzan had no locus standi, in that, he was not the Director of the judgment-debtors' Mills; thirdly, that factual controversy which has been agitated in the writ petition could well be resolved by the Trial Court and the Appellate Court and not by the High Court in its extraordinary writ jurisdiction and; fourthly, that remedy of writ was being sought against the order of a Division Bench of the High Court which could not be granted to the petitioners. The learned Judges were also of the "considered" opinion that the impugned judgment and decree against the judgment-debtors had not offended the provisions of Articles 23, 24 and 25 of the Constitution and lastly that "it falls in the domain of the Federal Shariat Court to hold that the provisions of law are violative of Injunctions of Islam". In consequence, the writ petition was dismissed in limine on 12-1-1995. Now as the petitioners are aggrieved of the dismissal of their writ petition in limine, they have filed this petition for leave to appeal.
6. We fully subscribe to the reasoning that weighed with the learned Division Bench in refusing to grant Constitutional relief claimed by the petitioners. The petitioners could but did not challenge the findings of the learned Banking Tribunal before the High Court in appeal as envisaged by section 9 of the first Ordinance. The learned Division Bench seized of the appeal directed the petitioners in pursuance of the first proviso to section 9 (1) to deposit with the Banking Tribunal the decretal amount by a specified date. In view of failure of the petitioners to comply with the order of the Appellate Bench which was a condition precedent for entertainment thereof, the appeal was dismissed as withdrawn. The petitioners could have but had not challenged the order of the Appellate Bench of the High Court before this Court. Having not availed of this remedy, the impugned order of dismissal of the appeal attained finality. In the context, reference, inter alia, may be made to the case of Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCM R 810.
7. Malik Mian Ramzan, petitioner in the writ petition was neither proved before the learned Division Bench nor before us to be an aggrieved person within the contemplation of Article 199 of the Constitution. He was, therefore, rightly held to have got no locus standi.
8. The Division Bench which had disposed of the appeal was competent to have resolved the factual as well as legal and Constitutional controversies which had been agitated before the Constitutional Bench of the High Court. Having omitted to pursue the appeal to its logical conclusion on any premise, the petitioners are debarred to agitate the same controversy ever again on the principle of constructive res judicata.
9. The learned counsel for the respondent No,3 has taken strong exception to the competency of the writ petition before the High Court as in effect, final orders passed by the Appellate Bench of the High Court were challenged in the Constitutional petition. We entirely agree with the learned counsel for respondent No,3 on the very maintainability of the writ petition. A bare reading of clause (5) of Article 199 of the Constitution of Pakistan would make it clear that the 'High Court' is not a 'person' to whom a writ of High Court can be directed. The obvious result is that the petition is barred by the provisions of the Constitution itself and the petitioners could not be granted any relief in writ jurisdiction of the High Court. It appears to us that the mere conferment of Constitutional jurisdiction on a Bench of the High Court does not have the effect of converting another Bench which exercises the appellate powers of the same High Court inferior to the former.
This Court in Malik Feroz Khan Noon v. The State PLD 1958 SC (Pak.) 333 has approved the dictum laid down in the case of Goonesinha v. O.L.De Kretser AIR 1945 PC 83 by the Privy Council that a writ of certiorari, which is in the nature of a revisional order and can only be issued to an inferior Court, cannot be issued by a superior Court to bring up an order made by a Judge of that Court. In Malik Feroz Khan Noon's case, the principle deducible is that when the Judges of the High Court function in different capacities under different jurisdiction, they do not act as different Courts but exercise the powers of the same Court and that distribution of those powers is not more than an internal arrangement among the Judges of the same Court.
10. Again section 6(6) of the first Ordinance was sought to be declared ultra vires the Constitution on the touchstone of its Article 2A. On this point, this Court in the case of Hakim Khan and 3 others v.
Government of Pakistan and others PLD 1992 SC 595 has declined to take Article 2A as a supra- Constitutional measure. This newly added Article has, therefore, got no overriding effect in so far as the powers of the Banking Tribunal constituted under section 4 of the first Ordinance are concerned. Nonetheless, the petitioners are apparently estopped by their own conduct to question the vires of section 6(6) ibid, as while taking the loan from the Corporation they conveniently ignored the rigours of the first Ordinance but when the Corporation sought the recovery of the loan, they got mindful of its effect of violation of the Injunctions of Islam and Sunnah.
11. We also uphold the findings of the learned Division Bench in the High Court that the provisions of the first Ordinance in general and those of sections 6(6) and 9 in particular are not ultra vires the Articles 23, 24 and 25 of the Constitution.
12. Last but not the least, under section 10 and subject to the provisions of appeal under section 9 of the first Ordinance, no Court or other authority is competent to call or permit to be called in question any proceeding, order, judgment or decree of a Banking Tribunal or the legality or propriety of anything done or intended to be done by the Banking Tribunal thereunder. The writ petition was, therefore, not competent.
13. Mr. Hidayatullah Khan, learned counsel for the petitioners, has reiterated his principal ground of attack to the impugned decree saying that notwithstanding the addition of the Corporation in the Schedule appended to the first Ordinance in pursuance of section 13 thereof and the Corporation having been clearly excluded from the ambit of the Banking Company by virtue of the provisions of section 32 of the second Ordinance, the Banking Tribunal was devoid of jurisdiction.
14. We are conscious of the provisions of section 32 (supra) of the second Ordinance whereby the Corporation shall not be deemed to be a banking company for the purposes of Banking Companies Ordinance (No, LVII of 1962) or any other law for the time being in force relating to the Banking Companies. Nonetheless, it is not disputed that by addition of the Corporation in the Schedule to the first Ordinance by virtue of Notification No, S.R.O.(1)/86, dated 1-1-1986 by the Federal Government, the Corporation has been accorded the status of the Banking Company within the meaning of section 2(a) (iii) of the first Ordinance. Evidently, by the addition in the Schedule of the Corporations, an anomalous situation has been created inasmuch as under section 32 of the second Ordinance the Corporation should not be deemed to be a Banking Company, which had created a legal fiction operating in negative. In construing the scope of legal fiction it would be proper and then necessary to assume all those facts on which alone the fiction can operate. The effect of the amendment in the Schedule to the first Ordinance on the provisions of section 32 ibid have to be juxtaposed. In this context, the maxim, `leges posteriores priores contrarias abrogant' would be attracted which means that later laws repeal earlier laws inconsistent therewith. Section 32 of the second Ordinance was enacted along with the second Ordinance on the 5th of May, 1985 whereas the Corporation, as stated earlier, was added in the Schedule to the first Ordinance on the 1st of January, 1986. The rule of interpretation is Fell settled that if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later. We are, therefore, clear in our mind that provisions of section 32 ibid whereby the Corporation was not deemed to be a Banking Company for the purposes of Banking Companies Ordinance, 1962, stand repealed by amendment in the Schedule and in view of Provisions of section 13 of the first Ordinance, it shall have effect accordingly. The inevitable outcome is that notwithstanding the categorical provisions of section 32 ibid taking out the Corporation from the definition of the 'Banking Company', it would be such a company in view of the later amendment in the Schedule to the first Ordinance and the Banking Tribunal constituted under section 4 of the first Ordinance shall have the jurisdiction to entertain the plaint filed by the Corporation against the petitioners.
15. Mr. Hidayatullah Khan, learned counsel for the petitioners, then placed reliance on section 3 of the first Ordinance and maintained that the provisions of the first Ordinance were 'in addition to and not in derogation of any other law for the time being in force' and, therefore, the provisions of the second Ordinance providing for all encompassing made of recovery of dues of the Corporation besides being comprehensive were efficacious enough and resort to the provisions of the first Ordinance was unwarranted. A similar contention in the context of identical provisions of the Industrial Development Bank of Pakistan Ordinance, 1961 and those of Banking Companies (Recovery of Loans) Ordinance, 1979 was repelled by this Court in Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others 1981 SCM R 143 wherein the words 'save as hereinafter provided' were held as fatal to the argument raised for the Bank 'because subsection
(4) of section 6 of the Industrial Development Bank of Pakistan Ordinance stated in terms that all proceedings pending in any Court by any Banking Company for the recovery of a claim shall stand transferred to the Special Court' and that on plane language of section 6 it would not derogate from the provisions of the Industrial Development Bank of Pakistan Ordinance. In the instant case too, the provisions of the first Ordinance were in addition to and not in derogation of any provisions of the second Ordinance but as the Corporation had sought to recover its dues from the petitioners through the Banking Tribunal it shall have the jurisdiction to entertain the plaint on the plain language of section 5(3) of the first Ordinance which reads as under:--.
"5(3). No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal: ' Provided that nothing in the subsection shall be deemed to affect--
(a) the right of a banking company to seek any remedy before any Court or otherwise that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or
(b) the power or jurisdiction of the banking company or any Court such as is referred to in clause (a); or to require the transfer to a Banking Tribunal of any proceeding pending before the banking company or any Court immediately before the commencing day."
It would be noticed that the Banking Tribunal has the exclusive jurisdiction to adjudicate upon the claim of the Corporation in addition to its right conferred thereon in clause (a) or (b) of the proviso to section 5(3) ibid.
16. Nothing has been pointed out to us which could make us disagree with the judgment of the learned High Court. This petition for leave to appeal is, therefore, dismissed.
…and 12 more citing cases