1. The petitioner has challenged the order dated 30-1-1995 passed by the Banking Tribunal-II Karachi, (Respondent No. l) whereby the suit in question was ordered to proceed ex parte against the petitioner. The facts relevant for decision of this petition are as follows: The petitioner is a sole proprietorship concern and is engaged in import business at Karachi. The respondent No.2 (Habib Bank Ltd.) on 26-7-1994 had filed Suit No.202 of 1994 against the petitioner and respondent No.3 for recovery of Rs.13,74,784. The case of the respondent No.2 is that the petitioner is maintaining an account at Tariq Road Branch of the respondent No.2, and respondent No.3 was the Manager of the petitioner for the purpose of transaction with the Bank. In July 1992, the petitioner established letter of credit for the import of waste paper. The suit amount was outstanding against the petitioner and the respondent No.3 and they did not pay the same although they had admitted their liability.
2. The petitioner was served with summons and publication in newspaper dated 25-12-1994, in accordance with subsection (3) of section 6 of the Banking Tribunals Ordinance, 1984 hereinafter referred to as Ordinance, 1984. On 29-1-1995 the petitioner moved an application that it had received copy of the plaint on 26-1-1995, as such, was entitled to file written statement within 10 days from the date just mentioned above. Respondent No. 1, however, by order dated 30-1-1995 dismissed said application on the ground that written statement, was not filed within statutory period of ten days, viz from 25-12-1994 and ordered the suit to proceed ex parte. The petitioner has impugned said order in this petition.
3. It is contended on behalf of the petitioner that the impugned order is in violation of the principles of natural justice, and the petitioner should have been permitted to file the written statement and .To contest the matter on merits. Learned counsel also argued that the petitioner has been condemned unheard, as such, the impugned order on this ground also is liable to be set aside.
4. The suit was filed under the Ordinance, 1984. Subsections (2), (4), (5) and (6) of section 6 of the Ordinance are applicable in this matter and are reproduced below for reference: "6. Procedure of Banking Tribunal.-(1)--------------------------
(2) On a plaint being filed with the Banking Tribunal in accordance with the provisions of subsection (1), the Banking Tribunal shall issue notice requiring the defendant to show cause, within ten days of service of such notice as to why decree as prayed for at the plaint should not be passed against him.
(3) The notice under subsection (2) shall be served on the defendant in accordance with the procedure for service of notice laid down in sub--section (3) of section 4 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979).
(4) Upon the defendant failing to file a reply within the time given in the show-cause notice under subsection (2) or upon rejection by the Banking Tribunal of the plea taken by him in the reply, the Banking Tribunal shall pass a decree in favour of Banking Company as prayed for in the plaint.
(5) In the event of the Banking Tribunal passing a decree against the defendant failing to give a reply to the show-cause notice within the period specified in subsection (2), the Tribunal may, on the application of the defendant filed within thirty days of the passing of the decree, set aside the same and permit the defendant to file his reply under that sub--section provided it is satisfied that there was sufficient cause for, the defendant not having filed the reply within the specified period.
(6) All suits filed in the Banking Tribunal shall be disposed of within ninety days of the filing of the plaint, and, in case the proceedings continue beyond the said period, the defendant shall be asked to furnish a bank guarantee acceptable to the Banking Tribunal to the extent of the claim in suit, and, on failure of the defendant to furnish such bank guarantee within a period of fifteen days, the Banking Tribunal shall pass a decree in favour of the Banking company as prayed for in the plaint: Provided that, where the claim of the Banking Company is based on default of the defendant in payment of agree instalments, the bank guarantee shall be to the extent of the amount of instalments in default; Provided further that, in case the proceedings continue beyond a further period of one hundred and twenty days, the defendant shall deposit with the Banking Tribunal in cash the amount claimed in the plaint and, on failure of the defendant to make such deposit within fifteen days, the Banking Tribunal shall pass a decree in favour of the banking company as prayed in the plaint.
5. Section 9 of the Ordinance provides appeal against an order passed by the Banking Tribunal. This right of appeal, however, is subject to the condition of depositing decretal amount which is awarded in terms of section 6(6) of the Ordinance. Under subsection 4 of the section 6 of the Ordinance upon rejection by the Banking Tribunal of the plea taken by the defendant in the reply, the Banking Tribunal is required to pass a decree in favour of the Banking Company. The plea taken by the petitioner was not accepted by the respondent No. 1, as such, the petitioner could avail the remedy provided by the Ordinance. Prima facie, the main object of the petitioner is to prolong the proceedings, and not to deposit the amount in terms of section 6(6) of the Ordinance, Indeed writ is not a substitute of appeal or revision. The petitioner has not come to Court with clean hands.
6. There is no violation of the principles of natural justice nor the impugned order suffers from any infirmity. It is not disputed that the Petitioner was served on 25-12-1994 and from said date till 29-1- 1995 the petitioner did not submit reply of show cause as was requirement to be done in compliance of, subsection 2 of section 6 of the Ordinance. All this indicates that right from the beginning deliberately delaying tactics were adopted by the petitioner. Therefore, the respondent No. l was justified to proceed ex parte in the matter. 'The petitioner has no merits, and is dismissed as such.
7. On 21-8-1995 after hearing learned counsel for the petitioner, we had dismissed this, petition in limine alongwith Miscellaneous 634 of 1995 and these are the reasons for the same.