' This order shall dispose of the instant writ petition as well as the writ petitions mentioned hereunder as a common question of law is involved in all these petitions:--
(1) W.P. No,2354 of 1999/BWP, (2) W.P. No,5493 of 1999/BWP, (3) W.P. No,1954 of 2000/BWP, (4) W.P.
No,3896 of 2000/BWP, (5) W.P. No,4746 of 2000/BWP, (6) W.P. No,5307 of 2000/BWP, (7) W.P. No,5975 of 2000/BWP, (8) W.P. No,6014 of 2000/BWP, (9) W.P. No,263 of 2001/BWP, (10) W.P. No,272 of 2001/BWP, (11) W.P. No,289 of 2001/BWP, (12) W.P. No,357 of 2001/BWP, (13) W.P. No,358 of 2001/BWP,
(14) W.P. No,523 of 2001/BWP, (15) W.P. No,604 of 2001/BWP, (16) W.P. No,623 of 2001/BWP, (17) W.P.
No,630 of 2001/BWP, (18) W.P. No,688 of 2001/BWP, (19) W.P. No,694 of 2001/BWP, (20) W.P. No,695 of 2001/BWP, (21) W.P. No,742 of 2001/BWP, (22) W.P. No,743 of 2001/BWP, (23) W.P. No,744 of 2001/BWP,
(24) W.P. No,746 of 2001/BWP, (25) W.P. No,873 of 2001/BWP, (26) W.P. No,916 of 2001/BWP, (27) W.P.
No,951 of 2001/BWP, (28) W.P. No,963 of 2001/BWP, (29) W.P. No,1079 of 2001/BWP, (30) W.P. No,1332 of 2001/BWP, (31) W.P. No,1342 of 2001/BWP, (32) W.P. No,1365 of 2001/BWP, (33) W.P. No,1366 of 2001/BWP, (34) W.P. No,1367 of 2001/BWP, (35) W.P. No,1368 of 2001/BWP, (36) W.P. No,1405 of 2001/BWP, (37) W.P. No,1406 of 2001/BWP, (38) W.P. No,1407 of 2001/BWP, (39) W.P. No,1408 of 2001/BWP, (40) W.P. No,1421 of 2001/BWP, (41) W.P. No,1447 of 2001/BWP, (42) W.P. No,1467 of 2001/BWP, (43) W.P. No,1552 of 2001/BWP, (44) W.P. No,1560 of 2001/BWP, (45) W.P. No,1569 of 2001/BWP, (46) W.P. No,1626 of 2001/BWP, (47) W.P. No,1627 of 2001/BWP, (48) W.P. No,1783 of 2001/BWP, (49) W.P. No,1851 of 2001/BWP, (50) W.P. No,1893 of 2001/BWP, (51) W.P. No,1897 of 2001/BWP, (52) W.P. No,1909 of 2001/BWP. (53) W.P. No,1923 of 2001/BWP, (54) W.P. No,1930 of 2001/BWP, (55) W.P. No,1983 of 2001/BWP, (56) W.P. No,2063 of 2001/BWP, (57) W.P. No,2100 of 2001/BWP, (58) W.P. No,2081 of 2001/BWP, (59) W.P. No,2163 of 2001/BWP, (60) W.P. No,2181 of 2001/BWP, (61) W.P. No,2205 of 2001/BWP, (62) W.P. No,2206 of 2001/BWP, (63) W.P. No,2211 of 2001/BWP, (64) W.P. No,2290 of 2001/BWP, (65) W.P. No,2301 of 2001/BWP, (66) W.P. No,2302 of 2001/BWP, (67) W.P. No,2305 of 2001/BWP, (68) W.P. No,2339 of 2001 /BWP,
2. Briefly stated the facts are that petitioners have availed financial assistance facility from the Small Business Finance Corporation (hereinafter 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 PLD 1991 FSC 1 and PLD 2000 SC 225,
3. Conversely, the stand of the learned counsel 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 be 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 and closed, hence the said authority is not applicable in these cases and petitioners are liable to pay interest/mark-up on the loans advanced 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; 1999 M LD 2324; 2001 CLC 524 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 (PLD 1991 FSC 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 Injunction of Islam as per PLD 2000 SC 225 and PLD 1991 FSC 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 Injunction of Islam, yet its recovery has not been disallowed.
5. It may also be mentioned that as per SBFC Financial Assistance Agreement, each loanee is described as a customer and I 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-clauses (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 irresistible 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.