SHAIKH ABDUR RAZZAQ, J. - This order shall dispose of the instant writ petition as well as the writ petitions mentioned here under as a common question of law is involved in all these petitions:-
(1) W.P. No. 2354-99/BWP,
(2) W.P. No. 5493-99/BWP,
(3) W.P. No. 1 954-2000/BWP,
(4) W.P. No. 3896-2000/BWP,
(5) W.P. No. 4746-2000/BWP,
(6) W.P. No. 5307-2000/BWP,
(7) W.P. No. 5975-2000/BWP,
(8) W.P. No. 6014-2000/BWP,
(9) W.P. No. 263-2001/BWP,
(10) W.P. No. 272-2001 /BWP,
(11) W.P. No. 289-2001/BWP,
(12) W.P. No. 357-2001/BWP,
(13) W.P. No. 358-2001/BWP,
(14) W.P. No. 523-2001 /BWP,
(15) W.P. No. 604-2001/BWP,
(16) W.P. No. 623-2001 /BWP,
(17) W.P. No. 630-2001 /BWP,
(18) W.P. No. 688-2001/BWP,
(19) W.P. No. 694-2001/BWP,
(20) W.P. No. 695-2001 /BWP,
(21) W.P. No. 742-2001/BWP,
(22) W.P. No. 743-2001/BWP,
(23) W.P. No. 744-2001/BWP,
(24) W.P. No. 746-2001 /BWP,
(25) W.P. No. 873-2001 /BWP,
(26) W.P. No. 916-2001 /BWP,
(27) W.P. No. 951-2001 /BWP,
(28) W.P. No. 963-2001/BWP,
(29) W.P. No. 1079-2001/BWP,
(30) W.P. No. 1332-2001/BWP,
(31) W.P. No. 1342-2001/BWP,
(32) W.P. No. 1365-2001-BWP,
(33) W.P. No. 1366-2001/BWP,
(34) W.P. No. 1367-2001/BWP,
(35) W.P. No. 1368-2001/BWP,
(36) W.P. No. 1405-2001/BWP,
(37) W.P. No. 1406-2001/BWP,
(38) W.P. No. 1407-2001/BWP,
(39) W.P. No. 1408-2001/BWP,
(40) W.P. No. 1421-2001/BWP,
(41) W.P. No. 1447-2001/BWP,
(42) W.P. No. 1467-2001/BWP,
(43) W.P. No. 1552-2001/BWP,
(44) W.P. No. 1560-2001/BWP,
(45) W.P. No. 1569-2001/BWP,
(46) W.P. No. 1626-2001/BWP,
(47) W.P. No. 1627-2001/BWP,
(48) W.P. No. 1783-2001/BWP,
(49) W.P. No. 1851-2001/BWP,
(50) W.P. No. 1893-2001/BWP,
(51) W.P. No. 1897-2001/BWP,
(52) W.P. No. 1909-2001/BWP,
(53) W.P. No. 1923-2001/BWP,
(54) W.P. No. 1930-2001/BWP,
(55) W.P. No. 1983-2001/BWP,
(56) W.P. No. 2063-2001/BWP,
(57) W.P. No. 2100-2001.BWP,
(58) W.P. No. 2081-2001/BWP,
(59) W.P. No. 2163-2001/BWP,
(60) W.P. No. 2181-2001/BWP,
(61) W.P. No. 2205-2001/BWP,
(62) W.P. No. 2206-2001/BWP,
(63) W.P. No. 2211-2001/BWP,
(64) W.P. No. 2290-2001/BWP,
(65) W.P. No. 2301-2001/BWP,
(66) W.P. No. 2302-2001/BWP,
(67) W.P. No. 2305-2001/BWP,
(68) W.P. No. 2339-2001/BWP.
2. Briefly stated the facts are that petitioners have availed financial assistance facility from the Small Business Finance Corporation (herein after to be called SBFC). They allege that they have been returning the amount due as prescribed by the rules of business but the Corporation has started demanding not only the remaining outstanding principal amount but also interest/mark- up on the said advances/loans. They contend' that Corporation is not entitled to recover any mark- up/interest on the loans advanced to them as the same has been disallowed by the Federal Shariat Court as well as Supreme Court of Pakistan. They have placed reliance on 1991 F.S.C. 1 and PLD 2000 SC 225.
3. Conversely, the stand of the learned counsels for SBFC is that writ petitions are not maintainable as any dispute between the parties falls within the ambit of Banking Courts as contemplated by Section 7(4) of the Banking Companies (Recoveries of Loans, Advances Credits and Finances) Act, 1997, that relation between the petitioners and SBFC is of contractual nature which cannot got enforced by invoking the Constitutional jurisdiction of this Court, that as per dictum laid down in PLD 2000 SC 225, all these transactions are past arid closed, hence the said authority is not applicable in these cases and petitioners are liable to pay interest/mark-up on loans advances to them, that recovery proceedings under the SBFC, Act, 1972 are regulated by Section 22 which lays down that all sums due shall be recovered as arrears of land revenue, as such recovery proceedings have been initiated in accordance with law, that petitioners have obtained financial assistance after executing such agreements and furnishing surety bonds of guarantors on stamp papers as such petitioners as well as their guarantors are liable to pay the amount outstanding against them, that petitioners have not approached this Court with clean hands as such are not entitled to any relief, that if the petitioners approach the concerned branch of SBFC, they will be provided statements of accounts and thereafter recovery proceedings shall be initiated in accordance with law. In support of their contentions they have placed reliance upon 1998 CLC 1718, PLJ 2000 68, NLR 2001 CLJ 76 and 1994 SCMR 2787.
4. There is no doubt that the petitioners are customers of SBFC. They have obtained loan with their free consent and executed agreements and are liable to return the said loans. The petitioners do not dispute their liability to repay the amount of financial assistance. What they assert is that they are only liable to repay the principal amount and are not liable to pay interest/mark-up on the said amounts. They base their claim on the illuminating pronouncements of Federal Shariat Court (1991 F.S.C. 1) as well as Supreme Court of Pakistan (PLD 2000 SC 225). As per agreement executed by the petitioners with SBFC, they have undertaken to repay the sum advanced alongwith mark-up at stipulated rate mentioned therein and as such are liable to pay the sum. The petitioners have asserted that as interest/mark-up has been declared against Injunctions of Islam as per PLD 2000 SC 225 and 1991 F.S.C. 1, so they are not liable to pay the same. This contention is devoid of any force. There is no doubt that interest/mark-up in any form has been declared against Injunctions of Islam, yet its recovery has not been disallowed.
5. It may also be mentioned that as per SBFC, Financial Assistance Agreement, each loan is described as a customer and is liable to repay the sum borrowed by him as well as by his guarantor as "Debtor" has been defined to include a guarantor as per Sub-Clause (d) of Section 2 of SBFC, Act, 1972 (Act XXIX of 1972). Again SBFC has the power to call for payment before agreed period as per Section 20 of Act XXIX of 1972, if the conditions enumerated in Sub-Clause (a) to (c) exist. Again all sums payable to the Corporation are recoverable under Section 22 of the Act, without prejudice to the provisions of Sections 20 and 21 of the Act and all such amounts are recoverable as arrears of land revenue. All these facts lead to one irresistable conclusion that SBFC has the power to initiate proceedings for effecting recovery of sums advanced to the petitioners.
6. The upshot of the above discussion is that petitioners are liable to repay the amount as per agreements executed with SBFC. Accordingly, all these writs are disposed of with the observation that petitioners shall approach the respective branch of SBFC with written application within a fortnight and the concerned Manager shall provide statement of account and thereafter, shall determine the amount due after extending benefit of any incentive scheme introduced by the Corporation and shall proceed to recover the sum due keeping in view the dictum laid down in Dr. Aslam Khaki's case (PLD 2000 SC 225). It has been unanimously voiced by the petitioners that they are facing hardships in disposing of wheat, as there is no buyer in the market, so keeping in view this grievance of the petitioners, the respondent (SBFC) is directed not to resort to coercive measures against the petitioners till 15th June, 2001.