' Through the institution of the present Constitutional petition, the petitioners have called in question order dated 23-12-1997, passed by the learned Banking Court and judgment and decree dated 20-3-1995 passed by the then Banking Tribunal, Lahore, with the prayer that the same may be declared as illegal and without lawful authority.
2. Brief facts leading to the filing of the present writ petition are that the petitioners availed certain financial facility against securities from the respondent-Bank and on committing default, Bank filed a suit for recovery of Rs,20,48,519.08 against the petitioners before the then Banking Tribunal.
Pursuant to the issuance of show-cause notice under section 6(2) of Banking Tribunals Ordinance, 1984, the reply of the same was submitted before the Banking Tribunal, however, the said suit filed by the respondent-Bank was decreed against the petitioners vide judgment and decree dated 20- 3-1995. The writ petition then narrates that as the petitioners Nos.3, 4 and 5 were not properly served, therefore, they filed an application for setting aside the aforementioned decree, which is, statedly, pending at the time of the filing of the writ petition. Pursuant to the filing of the execution petition by the Bank, the execution proceedings were initiated and on 23-12-1997 the learned Banking Court without deciding the aforenoted application issued directions to the Court- auctioneer to auction the property, who reportedly issued proclamation of auction. It was in these circumstances that the petitioners assailed decree/order by way of filing the present Constitutional petition.
3. The office has reported that the respondents have been served, through registered postal cards, for today, but none has entered appearance to defend the respondent-Bank, as such, they are proceeded ex parte.
4. Learned counsel for the petitioners contends that the impugned judgment and decree dated 20- 3-1995 and order dated 23-12-1997 are not sustainable in law inasmuch as the same were passed in complete oblivion of the law on the subject. He further submits that the stocks were insured, the petitioners had been paying the premium but the Bank failed to account for the amount of the insurance received by the Bank from the Insurance Company.
5. Admittedly, on the filing of the suit for recovery against the petitioners, requisite show-cause notices were issued to them and some of them filed reply to the show-cause notices, while rest of the respondents, although served through postal service as well as proclamation in the newspaper, chose not to file reply to the show-cause notice, thus, abandoned the proceedings. It is discernible from the perusal of the judgment dated 20-3-1995 that the same is not an ex parte decision, was not passed in the absence of the petitioners, but it was rendered after taking into consideration the points/questions raised in the reply to the show-cause notice. Learned Banking Tribunal properly dealt with and has taken note of every proposition raised on behalf of the petitioners, thus, it cannot be said that the same is an ex parte decree.
6. Admittedly, the aforementioned decree, passed on 20-3-1995, has been assailed through the filing of the present writ petition, which was instituted on 4-2-1998 i,e, after the lapse of three years.
There is no cavil to the proposition that at the relevant time, such-like judgment and decree were appealable under the provisions of Banking Tribunals Ordinance, 1984. The learned counsel has admitted that no appeal was filed at the appropriate time against the judgment and decree dated 20-3-1995, thus, the same attained finality after the lapse of period of limitation. The petitioners slept over the matter since the passing of the decree deeming the said proceedings as valid and final and suddenly after a lapse of nearly three years, filed this writ petition challenging the judgment and decree passed as far back as on 20-3-1995. Undoubtedly, the writ petition is hit by the principle of laches acquiescence. The petitioners did not assail the said judgment and decree through filing of appeal and thus, acquiesced over the matter for almost three years and went into deep slumber. On these counts only, the writ petition deserves outright dismissal.
7. As regards order dated 23-12-1997, suffice it to say that the said order, at best, can be termed as interlocutory order, which according to the admitted settled principle of law is outside the purview of writ jurisdiction. By order dated 23-12-1997, the then Banking Court has only ordered to further process the execution proceedings and no order prejudicial to the interest of the petitioners was at all passed. Even if the said order is to be considered having been passed against the petitioners, then the appropriate remedy is not by way of filing the writ petition, but the petitioners could have availed their remedies by way of filing objections to the attachment and sale of properties under section 18(6) of Act XV of 1997, and in case of their failure could have filed an appeal under section 21(5) of the said Act, which remedies have held to be adequate and efficacious, thus, order dated 23-12-1997, is not amenable to writ jurisdiction.
8. So far as the contention of the learned counsel for the petitioners regarding the pledged goods and about insurance claim, the respondent-Bank in its parawise comments has submitted that pursuant to filing of the insurance claim by the respondent-Bank, a sum of Rs,11,10,120 was received from the Insurance Company and the said amount of insurance claim was credited to the loan account of the petitioners, thus, reducing the debit balance. There is no rebuttal of the said assertion on record. In view of this, the said contention raised by the learned counsel is without any legal foundation and is hereby repelled.
9. Another aspect of the case which cannot be ignored at this juncture is that on 6-2-1998 this Court stayed further execution proceedings subject to the deposit of Rs,10,00,000 which order was passed in the presence of the learned counsel for the petitioners, who was accompanied by petitioner No,2. It has been admitted today that the said order has not been complied with by, the petitioners. Non-compliance of the said order, of course, operates against the petitioners and exhibits their conduct. Since this is an equitable and discretionary relief, therefore, I am not inclined to exercise the Constitutional jurisdiction in the matter.
10. In view of the above reasons and conclusions, the writ petition is devoid of any force, thus, the same is dismissed with no order as to costs.
11. As the respondent-Bank is not represented, therefore, the office is directed to send the order of this Court to respondent No,2 immediately. Similarly a copy of the order be transmitted to the learned Banking Court-II, Faisalabad.