' The National Development Finance Corporation (hereinafter referred to as the Corporation) established under section 3 of the National Development Finance Corporation Act, 1973 (Act XVIII of 1973) (hereinafter referred to as Act of 1973) advanced eight credit facilities to the defendant- company, which were duly secured by credit agreements, promissory notes, letters of hypothecation, deed of floating charge and mortgage of property, which had been executed by the respondent-company. On the happening of default, committed by the defendant-company, in all the aforesaid credit facilities, a total sum of Rs,1550.021 millions was due from the defendant- company and as it failed to pay the said amount despite repeated demands made by the Corporation, and having failed to repatriate the said amount from the defendant-company, the Corporation, on 31-5-2000, filed a suit before this Court, under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) (hereinafter referred to as Act XV of 1997), against the defendant-company, for the recovery of Rs,1550.021 million. In response to summons/process issued by this Court, prescribed under section 9 of Act XV of 1997, the defendant-company filed an application seeking leave to defend the suit (PLD No,139/B/2000), wherein the defendant-company neither categorically denied its liabilities nor the execution of the documents was disputed. However, it was, inter alia, pleaded that the present suit is not maintainable, as the Corporation is not a "Banking Company" and that the suit is barred by limitation.
2. In support of the afore-stated application the learned counsel for the defendant-company has firstly contended, with reference to section 25 of Act of 1973, that as the Corporation is not a "Banking Company" for the purposes of Banking Companies Ordinance, 1962, therefore, the Corporation is precluded from either advancing the loans or instituting the present suit, thus, submitted that the present suit is not maintainable. It has next been argued that the suit is barred by time as Act XV of 1997, was promulgated on 31-5-1997 and the present suit was filed on 31-5- 2000, whereas under section 8 of Act XV of 1997, a Banking Company was allowed to file a suit for recovery within three years from the date of the coming into force of this Act. While projecting these two grounds the learned counsel has prayed for the grant of unconditional leave to defend the suit. Conversely, the learned counsel for the Corporation has vehemently asserted that in view of section 15 of Act of 1973, one of the businesses which the Corporation can -transact is to make loans and advances to the eligible enterprises, therefore, the suit is maintainable. It is further contended that the Corporation squarely falls within the definition of a Banking Company as envisaged under section 2(a) of Act XV of 1997. Thus, it was submitted that the leave application may be dismissed and the suit be decreed.
3. As regards the .First contention of the learned counsel for the defendant-company, although the provisions of section 25 of the National Development Finance Corporation Act provides that the Corporation shall not be deemed to be a Banking Company, nonetheless, the Corporation has attained the status of a "Banking Company" within the meaning of section 2(a) of Act XV of 1997.
Prima facie, it appears to be' a, contradiction, as pointed out by the learned counsel, inasmuch as under section 25 of the Act, .1973, the Corporation should not be deemed to be a Banking Company. The Hon'ble Supreme Court in a case reported as Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 has declared that if the provisions of later Act is so inconsistent with or repugnant to those of earlier Act, then earlier stands impliedly repealed by the later. Said judgment was although rendered in the case of Regional Development Finance Corporation, yet as the provisions of section 32 of Regional Finance Corporation Ordinance (XXXII of 1985) are identical to those of section 25 of Act of 1973, therefore, the dictum laid down in the said judgment is fully attracted to the facts and the legal proposition involved in the present case. The relevant portion of the judgment would be advantageous to be reproduced below;-- "In construing the scope of legal fiction it would be proper and then necessary to assume all those facts on which alone the fiction can operate. The effect the amendment in the Schedule to the first Ordinance on the provisions of section 32 ibid have to be juxtaposed. In this context, the maxim, 'leges posteriores priores contarias abrogant' would be attracted which means that later laws repeal earlier laws inconsistent therewith. Section 32 of the second Ordinance was enacted alongwith the second Ordinance on the 5th of May, 1985, whereas the Corporation, as stated earlier, was added in the Schedule to the first Ordinance on the 1st January, 1986. The rule of interpretation is well settled that if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later. We are, therefore, clear in our mind that provisions of section 32 ibid whereby the Corporation was not deemed to be a Banking Company for the purposes of Banking Companies Ordinance, 1962, stand repealed by amendment in the Schedule and in view of the provisions of section 13 of the first Ordinance, it shall have effect accordingly."
Being guided by the aforesaid law declared by the Hon'ble Supreme Court of Pakistan, I am of the considered view that the provisions of section 25 of Act of 1973, whereby the Corporation was not deemed to be a Banking Company for the purposes of Banking Companies Ordinance, 1962, stand impliedly repealed by section 2(a) of Act XV of 1997, and as such, the Corporation is competent to file suits for recovery invoking the jurisdiction of this Court under the provisions of Act XV of 1997.
4. Another aspect of the case which amply negates the said argument of the .Learned counsel is that section 15 of Act of 1973, inter alia, provides that one of the businesses which the Corporation can transact is also to make loan, advances and to guarantee loan to the eligible enterprises, For ready reference the relevant provisions are reproduced below:-- -15.Business which the Corporation can transact- Subject to the rules and regulations, if any, the Corporation may carry on, transact or do the several kinds of business and acts hereinafter specified, namely:--
(C) to make loans and advances to the eligible enterprises, on medium and long-term basis and to provide assistance for working capital requirement; ' to guarantee loans and advances granted to the eligible enterprises; ' to participate with other financial institutions in granting loans and advances to the eligible enterprises; ' to accept and furnish any lien, charge, hypothecation, or mortgagee/any tangible or intangible, movable or immovable property or assets in the discharge of its business;"
5. The Corporation is a body corporate which is transacting the business of advancing loan to various enterprises in Pakistan. The credit agreements and other documents, admittedly, executed by the defendant-company clearly establish the nature of the Corporation's business and the relationship between the Corporation and the defendant-company. From the perusal of the definition of the "Banking Company" as given in section 2(a)(i)(ii) of Act XV of 1997, I am of the considered view that the Corporation falls within the said definition of a "Banking Company'. The contention that corporation is not a Banking Company as defined in the Banking Companies Ordinance, 1962, is wholly irrelevant for the purposes of this case because the definition of a Banking Company given in the aforesaid Ordinance cannot be taken into account for determining whether or not the plaintiff is a "Banking Company" for the purposes of the Act XV of 1997.
6. In view of the above, the argument of the learned counsel regarding the non-maintainability of the present suit filed by the Corporation is unfounded, misplaced and is hereby repelled.
7. Bare reading of section 8 is a complete answer to another limb of argument of the learned counsel. Section 8 of Act XV of 1997 is not at all applicable to the present set of circumstances because in this case, admittedly, neither the credit facilities, were written off nor released nor adjusted under any agreement. The said section provides a period of limitation for filing of suits for recovery of any amount which was written off, released, adjusted under any agreement or falls due on account of withdrawal of any suit or proceedings. Bare reading of the plaint will manifest that the case of the defendant-company does not at all fall under any of the categories enumerated in section 8. Reliance of the learned counsel for the defendant-company on the provisions of section 8 of Act XV of 1997, to contend that the suit is barred by time, is wholly misconceived, misplaced and irrelevant. Moreover, the learned counsel has failed to substantiate his objections to the suit on the ground of limitation, by adverting to any specific credit facility which had ceased to remain enforceable on account of afflux of time. Mere assertion of plea of limitation cannot be accepted.
8. No other ground was urged by the learned counsel for the defendant-company in support of his application for leave to defend the suit.
9. In view of the above discussion, the defendant-company has comprehensively failed to raise serious and bona fide dispute warranting the grant of leave to defend the suit, thus, the application for leave to defend the suit (PLD No,139/B/2000) is hereby dismissed.
10. As a consequence of the dismissal of the application for the grant of leave to defend the suit, as .Discussed above, 'the allegations made in the plaint shall be deemed to be admitted. The Corporation has placed on record the photocopies of all the documents, on the basis of which they have filed the present suit, the execution whereof have not been specifically denied by the defendant-company even in their application for grant of leave. Meaning thereby, that the execution of all the documents have deemed to be admitted. Moreover, statement of accounts which is duly verified/certified under the Bankers' Books Evidence Act (XVIII of 1891) is also on record, to which presumption of correctness is attached. There is no rebuttal of the afore-mentioned documents on record.
11. In view of the above discussion and findings, a decree for recovery of Rs,1550.021 million as on 31- 5-2000 with costs is passed in favour of the plaintiff-corporation and against the defendant- company. The plaintiff-corporation shall also be entitled for the amount of mark up (in terms of section 15(1)(b) of Act XV of 1997), at the contracted rate or at the latest rate of the Banking Company for similar finance, whichever higher from the date of institution of the suit till the date of payment/realization. However, the claim of the plaintiff-corporation of liquidated damages at the rate of Rs,20% is hereby rejected being not permissible under the law.