1. ' The brief facts of the matter are that respondent No,1 as a plaintiff filed suit for recovery of Rs,11,916,271 under the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act XV of 1997 (hereinafter referred to as the Act). Case of the respondent was that financial assistance, loan was granted to the petitioners which was not paid. After filing of the suit the petitioners were served with summons who filed application with a prayer to grant them leave to defend the suit unconditionally. The learned Banking Court No,1 on 11-10-1999, granted application of the petitioners to defend the suit conditionally and directed them to deposit the amount of Rs,3,961,793 with the Nazir of the Court up to 11-11-1999. The petitioners did not comply with the said order with the result that suit of the respondent was decreed and respondent in view of the judgment and decree, dated 14-12-1999 filed the Execution Application before the Trial Court.
2. ' Petitioners filed this petition on 2-2-2000 for the following reliefs:--- "A. For setting aside impugned order, dated 11-10-1999 to the extent of asking the petitioner to furnish the security and permit them to defend the suit without condition.
3. ' B. For declaring that judgment and decree, dated 14-12-1999 are null and void and without jurisdiction."
4. ' The respondents were served with the notice of this petition and on behalf of respondent No,1, their attorney filed counter-affidavit to the main petition agitating that petition was filed is not maintainable in the eyes of law. He has further averred that petitioners have impugned the order, dated 11-10-1999 but they have not preferred any appeal against the judgment, dated 14-12-1999 and the decree, dated 24-1-2000 which have attained finality and by impugning the interlocutory order, the petitioners want setting aside the judgment and decree and that the petitioners have not come to the Court with clean hands. According to counter-affidavit, respondent No,1 had filed three cases against the petitioners in Banking Court being Suit No,7 of 1999, 8 of 1999 and 17 of 1998.
5. The Banking Court had decreed Suit Nos. 7 and 8 of 1999 and the respondent No,1 had filed execution Application No,236 of 1999 in Suit No,8 of 1999 wherein writ of attachment of movable properties was issued by the Banking Court where after the petitioner No,1 approached the respondent No,1 and handed over two vehicles and a cheque of Rs,500,000 with the request that the same be sold and the amount be adjusted in the decrial amount and obtained time for settlement of the balance dues. However, the cheque when presented was dishonored twice and in the meanwhile respondent No,1 in order to frustrate the decree removed all the leased equipment's from the show room and also took away their leased vehicle (Suzuki Margalla) and shifted the same from his residential and official premises to some other place. In support thereof dishonored cheque along with the bank slip are annexed as 'A', 'A/1' and 'A/2'. According to counter-affidavit petitioners are cheaters, who simply want to delay and d feat the ends of justice by filing this petition.
6. ' We have heard Mr. Anwar Muhammad. At the very outset of his arguments he submitted that though petitioners have not filed appeal as required under the law and also they have not challenged the judgment and decree passed by the learned Trial Court but learned counsel insisted that this petition may be treated as appeal and may be decided on merits. In support of his contention he referred PLD 1987 SC 139 and an ur reported D.B. Decision of this Court viz. C.F.
7. No,D-1386 of 1994 ' Mr. G.H. Baloch learned counsel for respondent No,1 submitted that the petitioners have not exhausted the remedies available to them under the law and have not come to the Court with clean hands. That the purpose of this petition is that execution application filed by the respondent No,1 may be frustrated and that the petition itself is not maintainable because the petitioners have not exhausted the remedies as provided under the Act. He further submitted that by filing this frivolous petition, petitioners have unnecessary dragged the respondent and as such exemplary costs may be awarded to the respondent No,1. He cited 1997 SCM R 1020 and 1997 SCM R 1361.
8. ' Before we discuss the case-law cited by the learned counsel for the parties, it would be pertinent to refer to section 10 of the Act which reads as follows:-- "Leave to defend.---Subject to section 11 the Banking Court shall, upon an. Application made by a defendant within twenty one days, give leave to defend the suit, if a serious and bona fide dispute is raised thereby: ' Provided that where service has been validly effected only through publication in the newspapers the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof."
9. Admittedly the petitioners in their correspondence with the respondents admitted the liability to the extent of Rs,3,961,793 and the petitioners were allowed to defend the suit on furnishing an amount of Rs,3,961,793 with the Nazir of the Court but in spite of that petitioners did not deposit the amount with the result that suit in favour of the respondent No,1 was decreed by the Banking Court.
10. ' In this background of the matter we would like to discuss the case-law cited by learned counsel for the petitioners.
11. ' PLD 1987 SC 139 ' In this case their lordships of the Supreme Court of Pakistan considered the contention of the learned counsel for the appellants whether the High Court was justified in refusing to treat the second appeals filed by the appellants/petitioners in the High Court as revision and disposing them of accordingly and subsequently the appeals were allowed and cases were remanded back to High Court for considering whether in the exercise of its judicial discretion these matters should not be converted into revisions and if so, whether in the circumstances of each case any interference is called for in the exercise of its revisional jurisdiction.
12. ' C.P. No, D-1386 of 1994. In this case National Bank of Pakistan, filed a suit for recovery against respondents 3, 4, 5 and 6 which was decreed and in execution proceedings Property No,D-104, Block 5, Federal 'B' Area, Karachi, was ordered to be attached. Such notice of auction was published on 19-2-1994 for auction to be held on 26-3-1994. Property was ordered to be sold on the strength of a Deed of Mortgage executed in favour of the respondent Bank on or about 21-8-1988. Petitioners on acquiring knowledge of contemplated sale by auction of the property moved an application under Order XXI, Rule 58, C.P.C., before the Banking Tribunal claiming title to property on the strength of a sale-deed executed by respondent Sheikh Mansoor Ahmed in their favour duly registered on 14-2-1987 followed by mutation in the record of rights of KDA after publication of public notice. The learned Chairman, Banking Tribunal, was not satisfied with the points mentioned in the application and dismissed the application on the ground that petitioners did not have the original title deed and they could not be deemed to be bona fide purchasers.
13. ' Furthermore, learned Presiding Officer declined to hold enquiry into the claim put forward by the petitioners leading to the filing of First Appeal No,23 of 1994 under the 'Provisions of Banking Companies (Recovery of Loans) Ordinance, 1979, wrongly titled as appeal under Order XLIII, Rule 1, C.P.C. During the pendency of such appeal petitioners moved an application for conversion of the appeal in a Constitutional Petition which was allowed vide order, dated 17-5-1994 and the petition was admitted to regular hearing and finally the learned D.B. Passed an order in the following terms".
14. "Execution application shall be deemed to be pending before the Banking Court having jurisdiction in the matter and the claim of the petitioners shall be investigated strictly according to law."
15. ' In the case cited by Mr. G.H. Baloch, learned counsel for the respondent No,1 viz. 1997 SCM R 1361 their lordships of the Supreme Court of Pakistan have held that remedies and the forums available under the ordinary law had to be exhausted in the normal cause and extraordinary jurisdiction of Supreme Court under which direct Constitutional Petition could be filed should not be resorted to and in 1997 SCM R p.1020 their lordships have observed that where the High Court had come to a definite conclusion that proceedings initiated against respondent at the instance of petitioner were mala fide and coram non-judice and that petitioner had no reasonable ground to prosecute the same, High Court was fully competent, in exercise of its inherent power to grant appropriate compensation to the respondent.
16. In view of the background of the I matter, we are of the considered opinion that petitioners have not exhausted the remedies available to them as provided under the Act. Petitioners miserably failed to comply with the order of the learned Trial Court whereby they were allowed to defend the suit on condition to deposit the amount of Rs,3,961,793 with the Nazir of the Court. Subsequently suit of the respondent No,1., was decreed and execution application was filed. Even during execution application they issued cheque to the respondent No,1, which was also dishonored and they also took away vehicle (Mergala Suzuki), from their office and residence and by filing this petition they went to frustrate the execution filed by the respondent No,1, before the Banking Court.
17. ' With due respect, case-law cited by Mr. Anwar Muhammad, we are of the considered opinion that same is not relevant and not applicable to the present case whereas the case-law relied upon by Mr. G.H. Baloch, is relevant and applicable to the facts of the case.
18. For the facts, circumstances and case-law discussed hereinabove, we are of the firm opinion that this petition is misconceived and has been filed to frustrate the execution proceedings which are pending before the Court having jurisdiction. The petitioners have not come to the Court with clean hands. They have filed this frivolous and misconceived petition which deserves to be dismissed.
19. The same is accordingly dismissed in limine alongwith listed application and the petitioners are also imposed cost of Rs,25,000 which is to be paid to the respondent No,1, within 50 days.
20. ' On 6-4-2000 this petition was dismissed by short order, above are the reasons for the same.