1. The petitioners Sirajuddin and two others have invoked the Constitutional jurisdiction of this Court to declare the decree dated 21-3-1994 passed by the learned Presiding Officer, Banking Tribunal, N.-W.F.P. Peshawar and the order of a Division Bench of this Court dated 25-5-1994 as without lawful authority, coram non judice and of no legal effect; or to remand the case to the Banking Tribunal for giving decision afresh on the applications Annexures 'F' and 'H' and the legal/factual pleas raised in the written statement Annexure 'D'; and/or to suspend the impugned proceedings and the decree/orders (ibid) till the decision of the appeal by the Supreme Court against the judgment of the Federal Shariat Court in the case of Dr. Mahmood-ur-Rahman Faisal and others v.
2. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and others (PLD 1992 FSC 1).
3. 2.Facts of the case out of which this writ petition has arisen are that petitioner No,1 Sirajuddin, who is the attorney of petitioners Nos.2 and 3 and carrying on a business by the name of "Swat T.V.
4. Centre New Road Mingora" entered into a loan transaction with the Habib Bank Limited (respondent No,1) incorporated under the Companies Act, 1913 and nationalized under the Act (No,XIX of 1974) having its Head Office at Karachi and its Branches at various places including Mingora Swat falling under the PATA Regulation. The petitioner sold his stock in trade to Habib Bank Limited (hereinafter to be referred to as the Bank) for a sum of Rs,3,00,000 and agreed to purchase the same from the Bank on credit for a sum of Rs,3,79,678 on mark-up basis and an agreement to this effect was also executed in the year, 1989. The petitioner promised to pay the agreed price to the Bank by 7-5-1992 alongwith 20 per cent liquidated damages in case of default by the petitioner on the due date. The petitioner also executed a demand promissory note dated 10-5-1990 for Rs,3,79,678 with the Bank by way of security. The petitioner hypothecated his stock as per list with the Letter of Hypothecation dated 10-5-1990 and also mortgaged his property vide mortgage deed No,403 dated 16-5-1989. The petitioners Nos.2 and 3 stood guarantees for petitioner No,1 and undertook to pay the outstanding amount in case of failure of the latter and a deed of guarantee dated 10-5-1990 was executed in favour of the Bank.
5. 3.The petitioner though made some payment to the Bank but later on committed default of a sum of Rs,1,19,474 and despite repeated request ultimately after serving him with a notice refused on 11- 11-1992 to pay the outstanding to the Bank. The Bank, therefore, brought a suit for recovery of the said amount in the Court of the Banking Tribunal, N.-W.F.P. Peshawar which also allowed the petitioners to defend their case. A joint written statement/reply to the suit was filed by the petitioners wherein it was alleged that the petitioner has obtained loan of Rs,3,00,000 and denied to pay any liability of mark-up or twenty per cent liquidation charges. The learned Presiding Officer, Banking Tribunal, as stated earlier, granted a decree for the recovery of Rs,1,16,694 in view of the documents placed before him and the statement of the petitioner on oath to the effect that he expressed his willingness to pay the principal amount but refused to pay the mark-up on the basis of fresh statement of account filed by the Bank. The above decree was challenged in appeal before this Court. Alongwith the appeal (F.A.B. No,4 of 1994) an application (C.M. No,81 of 1994) for exemption from depositing the decretal amount was also filed. A learned Division Bench of this Court consisting of their Lordships Muhammad Bashir Jehangiri and Mian Shakirullah Jan, JJ. dismissed the application alongwith the appeal in limine on 25-5-1994. Hence this writ petition with the prayers quoted in para. 1 ante.
6. 4.At the outset the learned Additional Advocate-General objected to the maintainability of this writ petition on the ground that the petitioners have failed to deposit the decretal, amount with the learned Banking Tribunal as required under the first proviso to section 9 of the Banking Tribunals Ordinance (No,LVIII of 1984) (hereinafter called as the Ordinance) and their appeal against the decree was also dismissed by a learned Division Bench of this Court on this score only. The refusal of the petitioners to deposit the decretal amount with the Banking Tribunal amounts to non- availing of the right of appeal, therefore, the writ petition is not maintainable.
7. 5.The learned counsel for the petitioners has reiterated his contention that the decree passed by learned Banking Tribunal on 21-3-1994 as well as the order of this Court dated 25-5-1994 upholding the decree as aforesaid are coram nonjudice because Ordinance No,LVIII of 1984 has not been extended to PATA in view of Article 247 of the Constitution of Pakistan 1993. We have not been impressed by this submission of the learned counsel for the petitioners. Although the Ordinance has not been extended to PATA yet the petitioners, who had entered into a transaction with the Bank and executed Deeds for refund of stock of purchase money amounting to Rs,3,79,678 on the basis of mark-up and 20 per cent liquidation, charges in case of default on the due date, were rightly sued in the Court of Banking Tribunal and the Tribunal was competent to pass a decree in the matter. The preamble of the Ordinance (ibid) reads as under:- "Whereas it is expedient to provide a machinery for recovery of finance provided by banking companies under a system of financing which is not based on interest."
8. Banking Companies has been defined a bank as defined in The Banks (Nationalization) Act (XIX of 1974). The Bank being spread all over the country was legally justified to sue the petitioners' in the Banking Tribunal.
9. 6.Undisputedly, Banking Companies (Recovery of Loans) Ordinance, 1979 has been extended to PATA where under section 6(4) the jurisdiction of the ordinary Civil Courts has been barred in respect of any dispute between the Banking Companies and a borrower or guarantor. The Tribunal appointed under the Ordinance has been empowered to adjudicate upon the matter and the jurisdiction of any other Court has been barred under section 5(3) in these words:- "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."
10. Under Section 6 thereof procedure of the Banking Tribunal has been provided whereunder in case of any default committed by a customer in fulfilling any obligation to a Banking company, the Banking Company may file against such customer with the Banking Tribunal a plaint which shall, be verified on oath by the Manager or an Officer of the rank of Assistant Vice-President, or Assistant Manager or such other officer as the Board of Directors of the Banking Company may authorise in this behalf. The Banking Tribunal shall issue a notice to the defendant requiring him to show cause as to why a decree as prayed for should not be passed against him. The notice shall be served on the defendant in accordance with the procedure laid down in subsection (3) of section 4 of the Banking Companies (Recovery of Loans) Ordinance, 1979.
11. 7.The Banking Tribunal has rightly adjudicated upon and passed a decree because the matter in dispute was exclusively triable by it and a plaint was duly presented by the Bank and after issuing the required notice and hearing the petitioners the impugned decree was passed.
12. 8.A petition under Article 199 of the Constitution can only be entertained D when no other adequate remedy is available. The petitioners though preferred an appeal under section 9 of the Ordinance but they did not comply with the first proviso thereof which was a requirement for entertaining the appeal which was dismissed on this score alone. The petitioners, therefore, failed to avail of the remedy of appeal provided by the law. In Allah Bakhah and another v. Muhammad Ismail and others (1987 SCM R 810) it was held as under:- "It is to be noticed that the petitioners had a remedy before the Board of Revenue. They did not avail of it within the prescribed time. This by itself was a sufficient ground for the dismissal of the Constitutional petition filed by them in the High Court."
13. Yet in another judgment in the case reported as Messrs Tank Steel and Re-rolling Mills (Pvt.) Ltd., D.I.
14. Khan and others v. Federation of Pakistan and others (PLD 1996 SC 77) the above proposition was further approved by their Lordships of the Supreme Court and it was held as under:- "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."
15. Following the above dictum of the Supreme Court petitioners in the instant writ petition have also not challenged the order of a learned Division Bench of this Court dated 25-5-1994 which has attained finality.-The relief. claimed herein is not entertainable under the Constitutional jurisdiction of this Court.
9. As regards the objection with regard to maintainability of the petition in hand against the order of a learned Division Bench of the same High Court, it has been thoroughly discussed in the case of Messrs Tank Steel and Re-Rolling Mills (Pvt.) Limited (PLD 1996 SC 77) cited above as under:- "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.
16. 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 Kre'tser (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."
17. The decree passed by the Banking Tribunal could only be challenged in appeal under Section 9 of the Ordinance on legal as well as factual grounds, subject to the proviso attached to it which is an integral part of it. Otherwise no other Court can call it in question as envisaged by section 10 of the Ordinance. Even it cannot be challenged in a writ petition for the reason that the Ordinance itself has empowered a Division Bench of the High Court to hear an appeal against a decree or an order passed by the Banking Tribunal and without availing of the right of appeal writ could not lie. When the right of appeal is availed of and an order or judgment is passed by a Division Bench of the High Court, the same Court cannot entertain a writ petition against that order or judgment as concluded by their Lordships of the Supreme Court in the foregoing para. of the judgment. Thus, there seems wisdom behind section 10 of the Ordinance which reads as under:- "10. Finality of orders.---Subject to the provisions of appeal under section 9, no Court or other authority shall 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 under this Ordinance."
18. 10.As far as the prayer with regard to suspension of the impugned order is concerned, the execution of the impugned orders cannot be suspended because admittedly the judgment of the Federal Shariat Court referred to above has been challenged in appeal before the Supreme Court which has suspended the operation thereof. As held by a learned Division Bench of this Court in the impugned order dated 25-5-1994 that it is yet to be decided by the Supreme Court of Pakistan that whether mark-up falls within the definition of Riba or not.
19. 11.For the foregoing reasons, this writ petition being not entertainable is dismissed in limine alongwith Civil Miscellaneous Nos. 799 and 953 of 1994.