A suit for recovery of Rs.3,31,082 with mark-up was filed by the respondent-bank, in which after service of the notices, the appellants-- defendants made an application for leave to appear and defend the same. It was on 25-7-2000 that they failed to appear before the Banking Court and their application was dismissed. On the same date a decree for Rs.3,31,082 with costs and mark-up was passed by the Banking Court. An application under Order IX, Rule 13 read with section 151, C.P.C.
And section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), was filed by them, which was opposed and contested by the respondent-bank and was dismissed by the Banking Court on 10-2-2001 by taking the view that:-- "Under section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997, an order or decree passed by this Court can neither be reviewed nor recalled "
This is an appeal there against.
2. We have heard the learned counsel for the appellants and in view of the fact that all essential pleadings/proceedings have been brought on record, we have not felt it necessary to summon the record. When the attention of the learned counsel for the appellant was drawn as to whether section 12 of the Act Was applicable, it was candidly submitted by him that the provisions of said section would not cover .The instant case. It was, however, submitted that the decree can be set aside by invoking Order IX, Rule 13, C.P.C.
3. The perusal of section 12 of the Act would show that it empowers a Banking Court to set aside a decree in the given situations, which, as rightly conceded by the learned counsel, do not exist in the present case. The question, therefore, is whether Rule 13 of Order IX, C.P.C. Can be invoked to set aside the decree. It may be mentioned that qua a decree passed by a Banking Court remedies have been provided by the Act itself, i.e. Application under section 12 when it may be attracted in a particular case, and appeal under section 21 of the Act. The reading of section 21(4) of the Act would show that a decree passed ex pane even has been made appealable. These are specific provisions contained in a special law taking care of the various situations and eventualities. In the presence of such specific provisions of law no other general provisions can be invoked, otherwise by setting aside of a decree the Court would be exercising a power of review which does not vest in the Banking Court under the Act. In Messrs Shah Jewana Textile Mills Ltd., Lahore through Representative v. United Bank Limited through Attorney (PLD 2000 Lahore 162) referring to PLD 1993 SC 109, it was held that where an enactment creates a new jurisdiction prescribing manner in which the jurisdiction is to. Be exercised and further specifies the remedy, such remedy is exclusive and party aggrieved by an order made in exercise of that jurisdiction must seek such reedy and not other:. It was further held that Banking Court had no jurisdiction to review the judgment, decree or order passed by it. In Messrs Gold Star International and another v. Muslim Commercial Bank Limited (2000 MLD 421) it was emphasized by a Division Bench, of which one of us (Syed Zehid Hussain, J.) was Member, that when a special law provides remedy qua a particular order, the said remedy has to be followed by the party aggrieved. In Allied Bank of Pakistan Limited v Digital Radio Paging (Pvt.) Ltd., and 4 others (2000 CLC 1153) also the view taken was that "where an enactment specifies a remedy, such remedy has to be considered exclusive and the party aggrieved by an order made in exercise of such jurisdiction must seek only such remedy". It may be noticed that in the precedent case, an application for leave to defend was dismissed for non-prosecution for the setting aside of which an application was made under Order IX read with section 151, .C.P.C., which was dismissed by the learned Court by taking the above view in respect of section 21 and section 27 of the Act XV of 1997. In United Bank Ltd. v. Messrs Zafar Textile Mills Ltd. (2000 CLC 1330) section 3 of the Act was considered qua the applicability of Order IX, Rule 13, C.P.C. And it was held that Order IX, Rule 13, C.P.C. Was not applicable, It was observed that "this conclusion is fortified by section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which provides that subject to the provisions of appeal, no Court or other authority shall revise or review or call, or permit to be called in question any proceedings, order, judgment, decree or sentence of a Banking Court or the Banking Mohtasib or the legality or propriety or anything done or intended to be done by the Banking Court or the Banking Mohtasib under the Act. To allow a decree to be questioned by means of an application under the Code of Civil Procedure, will amount to defeat the clear intent of the Legislature which is spelt out by section 27 of the Act itself". As noted above, an application to set aside a decree is competent before the Banking Court only under section 12 of the Act in the given circumstances, and if in a particular case the said section is not applicable, then the decree has been made appealable under section 21(4) of the Act. Permitting the challenging to a decree by invoking Order IX, Rule 13, C.P.C. Would run counter to the intendment and object of the special law, which by section 27 attaches finality to orders, judgments, decrees subject to provisions of appeal.
4. Reference to section 3 of Act XV of 1997 in the context of the controversy is inapt and cannot be invoked for applying rule 13 of Order IX, C.P.C. In view of the provisions of sections 12, 21 and 27 of the Act. Indeed, such a provisions existed in the Bank Companies (Recovery of Loans) Ordinance, 1979 as well. In Muhammad Ayub Butt v. Allied Bank of Pakistan and others (PLD 1981 Peshawar 138) order passed by the Banking Court was challenged in revision under section 115, C.P.C. In order to meet the objection as to the competency of the revision and applicability of section 115, C.P.C., reliance was placed on section 3 of the Ordinance, which reads as follows:-- ---The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in degoration of any other law for the time being in force.--- It was held by the learned Division Bench that "all other laws referred to in the section would be applicable subject to the express provisions of the Ordinance. The right of revision always is a creation of statute and the Ordinance does not provide for the same". It was further observed that the Code of Civil Procedure has not been made applicable to the proceedings under the Ordinance. A similar issue arose in Azhar Hussain v. Chartered Bank, Faisalabad and 17 others (1981 CLC 516), when a learned Single Judge of this Court also took the view that "section 3 of the Ordinance does not allow this Court to exercise the reversional jurisdiction vesting in it under section 115 of the Code of Civil Procedure in respect of the orders made by a Special Court". The judgment of Peshawar High Court (supra) was challenged before the Supreme Court of Pakistan in Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others (PLD 1981 SC 359). The same was upheld as also the view taken by this Court in Azhar Hussain's case (supra). It was observed by their Lordships that "the overall conclusion therefore, is that the provisions of section 3 of the Ordinance relied upon by the learned counsel for the petitioner contending that the provisions of section 115 of the C.P.C. Can be availed of cannot, therefore, be accepted".
5. The principle deducible froth the above precedents is fully applicable to the controversy in the instant case that in the presence of a specific remedy provided by the law itself, i.e., sections 12 and 21 of the Act, reliance upon rule 13 of Order IX, C.P.C. Is wholly unwarranted and E not apt. There remains thus no doubt whatsoever that application by the appellant before the Banking Court was misconceived inasmuch as pre--conditions .For the applicability of section 12 of the Act were lacking in the instant case and application under Order IX, Rule 13, C.P.C. Was not maintainable. The order passed by the learned Banking Court thus is plainly consistent with the legal position obtaining in the matter.
As a result of the above, this appeal is dismissed in limine.