Through the instant petition, filed under Article 199 of - the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners seek declaration "to the effect that the respondents' inaction and verbal refusal to accede to the petitioners' request to reschedule the debt" is illegal and unconstitutional and the respondent-bank may be directed to grant time to pay the debt.
2. Briefly stated the facts, culminating to the filing of the present petition, as enumerated in the present petition, are that consequent to the filing of the suit for recovery of Rs.1,22,11,862.67 by National Bank of Pakistan, a decree of the said amount was passed, on 3-8-1999, against petitioner No.2. Pursuant thereto the respondent-bank filed an execution application before the Banking Court No.II, Lahore, who after completing all the legal requirements put the property to auction and for the said purpose Court-auctioneers were appointed. It has been averred in the petition that although the petitioners contacted respondent No.3 with a request to reschedule the facilities and to give them a reasonable time to pay back the financial liabilities yet all their efforts proved abortive. The petitioners have filed the writ petition with a prayer that respondent No.3 may be directed to grant time to the petitioners in order to liquidate their liabilities.
3. On being questioned, the learned counsel has candidly admitted that despite passing of a money decree since 3-8-1999 and initiation of the execution proceedings, the petitioners have not paid even a single penny towards the liquidation of their liabilities and satisfaction of the decree, the proceedings whereof are still underway.
4. In the above perspective learned counsel has contended that the petitioners have genuinely suffered business losses and are not in a position to pay the finance on account of hardships, that the petitioners are not wilful defaulters and are in genuine financial hardship on account of prevailing unhealthy business conditions in the country. In this backdrop the learned counsel of the petitioners has further argued that the business/factory of the petitioners is completely closed on account of numerous factors and if a period of three years is granted to the petitioners they undertake to liquidate their entire liabilities as per terms of the decree.
5. It is evident from the contents of the writ petitions as well as the arguments advanced by the learned counsel that the petitioners obtained certain financial facilities from respondent No.3, but they did not repay the amount and consequently a decree for a huge amount of Rs.1,22,11,862.67 was passed as far back as on 3-8-1999, which has attained finality as the same was not challenged before any higher forum. Obviously the judgment---debtors are bound by the terms of the decree and the Executing Court is bound to execute the decree, as it is, till the recovery of last Rupee. Since the date of passing the decree and despite the filing of the execution proceedings by the respondent-Bank, the petitioners failed to pay even a single penny and were able to prolong the proceedings one way or the other and the present writ petition is another futile effort to the same direction. Huge public money is being struck on account of the acts and omissions of the petitioners. It is settled law that an executing Court cannot go behind the decree which even according to the stance of the petitioners has attained finality.
6. After a passing of the decree the respondent-Bank is not under any obligation to reschedule/reconstruct the loan facilities, as it is the prerogative of the Bank, which is, of course, to be exercised with extreme care and caution. The Banks and financial institutions are the custodians of the public money and it is their bounden duty to protect the interest of general public and should not allow the public money to be wasted on account of methodology adopted by certain unscrupulous persons, who after obtaining the loan do not care to return back the public money.
7. The learned counsel has also contended that the mark-up/interest cannot be charged on the principal amount, as the same is un-Islamic. So far as this contention is concerned, this Court in view of Article 203-G of the Constitution has got no power or jurisdiction, under the law, to determine the same as per principle laid down in the case of Muhammad Ramzan v. Citibank N.A.
(2001 CLC 158). Furthermore, the Hon'ble Supreme Court of Pakistan in the case bf Dr. Muhammad Aslam Khaki v. Syed Muhammad Hashim and two others (PLD 2000 SC 225) has held that no doubt interest/Ribs in un-Islamic, but past and closed transaction cannot be re--opened.
8. So far as the grant of time for further three years, as contended by the learned counsel, is concerned, suffice it to say that nearly two years have already passed since the passing of the decree, but the petitioners failed to pay even a single penny. I am of the considered view, under the circumstances, that the petitioners are shirking in their responsibilities and avoiding to pay the decretal amount, which is being withheld without any legal justification by the petitioners. It. Is a matter of common knowledge that the country is facing an acute economic crisis, which has been mainly aggravated by certain persons, who after obtaining the finances, in a greed to swallow the same, remain successful in prolonging even the judicial proceedings on one pretext or the other.
Such class of persons appears to be completely oblivious to an alarming fact that their acts and omissions may lead the country to a financial disaster. This is high time that these persons should realize their legal obligations and moral duties they owe to the Nation. An extract from the illuminating judgment of the Hon'ble Supreme Court of Pakistan in Civil Appeal No.785 of 1994 (Messrs Sheikh Impex Limited v., Industrial Development Bank of Pakistan), which is apt to the facts of the present case, is reproduced:-- "The pious intentions like those expressed by the appellant-company would not he enough to salvage the country from the financial catastrophe. People are asking about the earlier defaulters in the country who owe billions to the banks. Why should not they be asked to re-pay their loans to set the tone for a mass mobilisation drive to raise funds for debt retirement and also the self- reliance scheme floated recently? Let all the business tycoons, who have by and large made their fortunes out of borrowed money, at least pay back their heavy loans. "
9. Under Article 199 of the Constitution of the Republic of Pakistan, 1973, such a declaration as prayed for in the present petition, cannot be granted under the facts and circumstances. It is settled principle that he who comes to the Court must come with clean hands and above narrative manifests that in this case the petitioners have not come to this Court with clean hands therefore, they are not entitled to an equitable relief.
10. In the above perspective the petitioners do not deserve any leniency and are not entitled to any discretionary relief, as despite the passing of the j decree they are withholding the public money, which they have taken as a finance/loan from a Banking Institution. Needless to mention that banking companies/institutions are the custodians of the public money which cannot be allowed to be wasted like that.
11. In view of above discussion, I am not inclined to exercise my Constitutional jurisdiction under the facts and circumstances of the case, which otherwise has no merits.
12. It is in this perspective and for the reasons stated above, I am constrained to dismiss this petition in limine.