1. ' WAJIHUDDIN AHMED, J.--This appeal is directed against the, preliminary decree, dated 31-5-1995, passed by the learned Single Judge in Suit No,280 of 1993. Such decree for Rs,9,22,86,593 was joint and several against defendants Nos. 1 to 4, one of the defendants being the appellant here, who had been sued as the guarantor for the loan.
2. ' The learned counsel for the respondent No,1, the decree-holder bank, has raised two preliminary objections. In the first place, it is pointed out that the appellant-judgment debtor has failed to furnish security in terms of section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979. Section 12(5) runs thus:-- "12. Anneals,- (1)...
3. (3)
4. (4)
(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment-debtor, at the discretion of the High Court, furnishes security equal in value to such amount."
5. In answer, Mr. Ansari has urged that C.M.A. No,933 of 1995 is directed precisely in anticipation of that objection and the appellant has sought leave to fall back on the mortgaged property, as security for the purposes of this appeal. The application appears to be untenable for reasons, which are more than one. Firstly, the mortgaged property was provided to the creditor Bank by the principal debtor and it is not the principal debtor, which has appealed but the guarantor of the loan. Such guarantor cannot proffer, as security, the property of another. Secondly, the principal debtor has since been subjected to liquidation proceedings and, in consequence, a number of interests must have come to crystalize pertaining to the assets and properties of the company in liquidation. It would be counter-productive to invite all such interests by entertaining the proposed security.
6. C.M.A. No,933 of 1995, therefore, is dismissed as non-maintainable.
7. We may, nonetheless, examine other questions, essential to the controversy. Such arises because sans deposit or security an appeal under section 12(5) ibid. Cannot merely be admitted. This, however, is only the preadmission stage and there is no bar in the subsection against examination of an appeal at the pre-admission stage. It goes without saying that Judges are required to administer law in a just and equitable manner. Qur'an and Sunnah enjoin that justice is to be tampered with mercy. Teachings and requirements of the Qur'an and Sunnah, are drawn upon by the Objectives Resolution, which, as of now, per Article 2A of the Constitution, is substantive part of the Constitution and has "effect accordingly". Much the same result is achieved by the Principles of Policy, appearing in Chapter 2 of Part I of the Constitution. This Court, therefore, in an appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, at the pre-admission stage, has clear jurisdiction to examine whether any patent injustice has been done in the matter and, if so, whether any redress can be allowed within the framework of the 1979 statute, as controlled by the Constitution. Even so, the reprieve would be confined only to cases involving a manifest wrong and sparingly resorted to, provided always that no alternative scope of redress is discoverable. To these aspects we would revert later.
8. ' Apart from the foregoing, another objection taken by Miss Sofia Saeed, the learned counsel for the decree-holder bank, is that in terms of section 316 of the Companies Ordinance, 1984, it was incumbent upon the appellant-guarantor of the loan to obtain prior permission of the learned company Judge in J.M. 10 of 1993 (Liquidation case) before this appeal could be preferred. For ready reference, we may reproduce here section 316 of the Companies Ordinance (hereinafter referred to as the Ordinance):-- "316. Suits stayed on winding up order.--(1) When a winding up order has been made or a provisional manager has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose.
(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of, any suit or proceeding by or against the company.
(3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by the Court." (Emphasis supplied).
9. It will be seen that leave of the Court, meaning usually the High Court in terms of section 7 of the Ordinance, pursuant to the reproduced section, is a prerequisite in relation to a "suit or other legal proceeding" and the prohibition extends to proceeding with as well as commencement of any such suit or other legal proceeding. However, it would appear that the words "other legal proceeding" are controlled by the word "suit" which precedes them and it is likely that the legislature intended to cover only such of the legal proceedings, through the provision in question, as are in the nature of a suit. We may, profitably, and here that the ejusdem generis rule has also been extended to cases where there is no genus in existence but only a single particular expression, which is followed by general words, as here. See: Maxwell on the Interpretation of Statutes, 12th Edn., pp.299-301. Indeed, unless the words "other legal proceedings" are restricted to proceedings in the nature of suits manifestly unacceptable results should follow. Thus, if an appeal pending before a Division Bench of a High Court or one in the Supreme Court is transferred to a Single Bench of a High Court or even a lower forum, (if notified under section 7 of the Ordinance) in terms of section 316(3) patently queer results should follow. The very absurdity of the situation would warrant an interpretation different than that canvassed by the respondent No, 1 . A similar view, we may recall, has already been taken regarding the proceedings, covered by section 141 of the Code of Civil Procedure where also the word "suits" is used in the juxta-position with "all proceedings in any Court of civil jurisdiction". The dicta on section 141, C.P.C. Is to the effect that the proceedings referred to in that section are limited to proceedings in the nature of a suit and proceedings of all and sundry characters are not contemplated. There is no plausible reason to deviate from the law spelled out above. It, therefore, follows that for the purpose of filing the present appeal it was not incumbent upon the appellant to obtain such a leave, as aforesaid, from the learned company Judge.
10. ' Even otherwise, the objection loses its force when it is seen that the learned company Judge himself in JM 10 of 1993 allowed leave to continue the proceedings in Suit No,280 of 1993 and that transpired through the order dated 31-8-1994. Such leave, it seems to us, would include permission to continue all legitimate proceedings, which could arise from the suit. On this score as well the objection taken is not sustainable.
11. ' The only question, which has agitated our minds, pertains to the quantum of the amount under the guarantee, which also was a subject-matter of the decree in the suit. The relevant portion in the letter of guarantee, whereby the responsibility has come to be fixed on the appellant in the decree is as under:-- "In consideration of your agreeing to grant advances, credit, facilities or accommodation at my/our request to Shahyar Textile Mills Ltd. (hereinafter referred to as the customer(s). I/we (jointly and severally) hereby agree to pay and satisfy to you on demand up to Rs,40,000,000 but not exceeding the sum of rupees forty million all moneys and liabilities already advanced, paid or incurred or which you at any time advance, pay or incur to or for the use and accommodation of or on the credit of the customer(s), (whether on current), cash credit, overdraft or loan account or by way of opening of any Letter of Credit or otherwise or by the discount of, or otherwise in respect of bills of exchange, promissory notes or other negotiable securities drawn, accepted or endorsed by the customer(s) or otherwise however, together with all interest, discount, commission and other banking charges, law and other costs charges and expenses which may become payable in connection therewith.
2. This guarantee shall be a continuing guarantee and remain in full force and effect until three calendar months after. I/each of us shall have given or sent to you notice in writing of my/our intention to discontinue and determine the same."
12. A plain reading of the above extract, which forms the opening words of the letter of guarantee, should indicate that the ultimate limit of liability of the appellant-guarantor was a sum of Rs,40 million. The learned counsel for the respondent-bank has, however, urged before us that such figure relates only to the principal amount and not to the accruing interest and other charges on the loan, which was guaranteed. The objection does not seem to be supported on the phraseology of the relevant provision. The limit of the guarantee, as will readily be seen, is spelled out twice over, first positively and then in negative language, with, apparently, clear intendment. More than this we would not like to say on the subject, because, we are not inclined to surmount the difficulty in administering relief in the matter on account of non-compliance of the deposit/security requirement of section 12(5) of the Ordinance. This course we adopt because the decree against the appellant beyond the guaranteed amount of Rs,40 million, ex facie, appears to be in excess of jurisdiction and the appellant can seek relief under section 12(2), of the Code of Civil Procedure. We would, therefore, leave the question of quantum of liability of the appellant to be taken up in terms of section 12(2), C.P.C. That provision, needless to add, effectively provides for safeguards against a decree which may have, inter alia, operated in excess of jurisdiction. The applicability of section 12(2) to the proceedings before a Special Court does not seem to be in doubt because section 3 in the Banking Companies (Recovery of Loans) Ordinance, 1979, expressly mandates that the provisions of the Ordinance shall be in addition to, and unless otherwise provided, not in derogation of other laws. Besides, a Special Court, in the exercise of its civil jurisdiction, has, in respect of claims, entertain able by it, all the powers of a civil Court under the Code of Civil Procedure, which obviously includes powers under section 12, C.P.C. What is more, procedure of such Court, relevantly, pursuant to section 7 of the Ordinance, is the summary procedure provided for in Order 37 of the Code, in turn subject to section 12, if attracted.
13. ' Subject to the foregoing observations, this appeal together with the listed applications is dismissed. C.M.As. Nos.934 and 935 of 1995 disposed of as being served their purposes.