' United Bank Limited through the filing of the present Constitutional petition, has called in question order dated 31-1-1993, whereby the learned Wafaqi Mohtasib (Ombudsman), made certain recommendation for the redressal of the alleged grievances made by respondents Nos.2 and 3 through a complaint.
2. Brief facts, leading to the filling of present petition are that pursuant to a request made by respondent No,3, sole-proprietor of respondent No,2, the petitioner-Bank sanctioned a loan facility of Rs,12,00,000 for the purchase of machinery, to be repaid by respondents Nos.2 and 3 with interest at the rate of 11%, within a period of 9 years, with a grace period of further one year, against a security of the mortgage of the property, secured by the execution of registered mortgage-deed dated 6-7-1987, in respect of land measuring 2 Kanals situated at Raqba Thatha Khuda Yar, District Sheikhupura. According to the petitioner-Bank. Respondents Nos.2 and 3 did not liquidate the outstanding amount, were able to pay only a paltry sum of Rs,35,576 and thereafter committed default. According to the terms of sanctioned letter, mortgaged property was insured against Burglary and Fire, however, in the month of September, 1988, heavy flood badly damaged the factory machinery and as the factory was, statedly, insured, therefore, the said respondents approached the petitioner-Bank for filing a claim against the Insurance company for the recovery of alleged losses sustained by the said respondents. But the grievances of the said respondents were not redressed by the petitioner-Bank. In November, 1991, respondent No,3 instituted a complaint before the learned Wafaqi Mohtasib against the petitioner-Bank directing them to make good the losses suffered by him on account of flood, wherein the petitioner-Bank was summoned and it filed reply to the complaint thereby taking legal and factual objections and controverting the contents of the complaint. It has been narrated in the petition that during the pendency of the complaint, the petitioner-Bank filed a suit for the recovery of Rs,20,71,390 (C.O.S. No,46 of 1992), which is, according to the petitioner-Bank, still pending adjudication before the Special Judge Banking, Lahore. However, during the pendency of the aforenoted suit, respondent No,1 made certain recommendations, vide order dated 31-1-1993, inter alia directing the petitioner-Bank not to charge interest on the loan of Rs,12,00,000 that the petitioner-Bank should extend additional finance facility, to the complainant, of Rs,10,00,000 against the security of his project and pledged of stocks of raw material and further the Bank should prepare a fresh schedule of repayment of loan allowing reasonable time to the respondents to discharge his liabilities. The petitioner-Bank filed a review petition and also instituted a representation before the President of Pakistan under section 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), but with no success as the review petition was dismissed and their representation was also rejected by the President of Pakistan vide letter dated 4-4-1994. In the above perspective, the petitioner-Bank challenged the order dated 31-1-1993 by way of filing this petition.
3. Learned counsel of the petitioner-bank has submitted that the complaint filed by respondents Nos.2 and 3 was grossly barred by time as the same was filed after the lapse of more than three years; that the recommendations made by respondent No,1 are outside the purview and scope of Article 11 of Order 1 of 1983 and that when the recommendations were made by respondent No,1, the suit filed by the petitioner-Bank for recovery, against the said respondents, on the same subject- matter, was pending before this Court and as such the matter was sub judice before the competent Court of law. In the above backdrop, the learned counsel for the respondent has submitted that the impugned order is not only illegal but it is also without jurisdiction, thus, the same is amenable to the Constitutional jurisdiction of this Court. Conversely, the learned counsel for the contesting respondents has supported the impugned order.
4. So far as the first contention of the learned counsel is concerned, admittedly, the complaint was filed by the said respondent on 3-11-1991, wherein at the bottom of page 2 of the complaint it has been alleged that n "September, 1988, the heavy flood came and badly damaged my factory and machinery", and he immediately informed the petitioner-Bank about the consequences of flood and demanded compensation. It is abundantly clear from the above that the complaint was filed nearly three years after the happening of the alleged incident. According to section 10(3) of Order 1 of 1983, a complaint is to be made not later than three months from the day, on which the person aggrieved first had the notice of the matter alleged in the complaint. In the present case, undoubtedly, the incident, that the flood hit the factory in the year 1988, immediately came to the knowledge of the said respondents but they did not agitate the matter before any Court of competent jurisdiction neither the said respondents availed their remedies before any forum nor a complaint was filed before respondent No,1 within the stipulated period. After the expiry of nearly three years, they filed the complaint, as such, the complaint was clearly hit by the bar of limitation as contained in Article 10(3) of Order 1 of 1983. The only exception to this bar of limitation is contained in the later portion of subsection (3) of section 10, which prescribes that Wafaqi Mohtasib may conduct an investigation pursuant to a complaint, which is not within time if he considers that there are special circumstances, which make it proper for him to do so. Upon the examination of the impugned order, I do not find that respondent No,1 has mentioned about any special circumstances, which authorised him to take cognizance of the complaint after the period of limitation, prescribed in the aforenoted provisions of law and after an inordinate delay of nearly three years. If the respondent No,1 was to embark upon the complaint after the period of limitation, it was obligatory upon him under later portion of subsection (3) of section 10 of Order 1 of 1983, to give "special circumstances" for making the recommendations on a grossly time-barred complaint. This essential ingredient for entertaining the complaint after the period of limitation is conspicuously absent from the order of respondent No,1. Under the circumstances, I am constrained to hold that the complaint filed by the said respondent was grossly barred by time and thus, the same could not be entertained by respondent No,1, more so, when no some "special circumstances", for entertaining the same after the period of limitation. Have even been mentioned in the impugned order.
6. Upon the examination of the impugned order, it is evident that respondent No,1 has made the following recommendations for redressing the grievances of the complainant:--
(i) The United Bank Limited should not charge interest on the loan of Rs,12 lacs from the date when the complainant's project was damaged by flood till the commencement of production.
(ii) The United Bank Limited should extend additional finance facility of Rs, TO lacs to the complainant against the security of his project and pledged stocks of raw material and finished goods brought into and taken out from the factory.
(iii) The United Bank Limited should prepare a fresh schedule of repayment of loan allowing reasonable time to the complainant to discharge his liabilities.
7. Upon the examination of Article 11 of Order 1 of 1983, it is evident that it provides that if the Mohtasib is of the opinion that the matter considered amounts to maladministration, then he shall communicate his findings to the Agency concerned regarding the matter provided in clauses (a) to (g) of sub-Article (1) of Article 11 of Order 1 of 1983. If the recommendations made by respondent No,1 in the present case are placed in juxtaposition to the conditions as laid down in Article 11(1) of Ordinance, 1983, the only irresistible conclusion which' can be arrived at is that the recommendations made by respondent No,1 are outside the purview and scope of the said, provisions of law. The recommendations made by the Mohtasib for implementation in the present case are not one of those recommendations which could be made by the Mohtasib under Article 11(1) of the Order 1 of 1983. The learned counsel for the petitioner is right while submitting that the recommendations made by the Mohtasib are outside the scope of the aforenoted provisions of law.
8. As regards the next contention of the learned counsel about the pendency of the suit, it is a matter of record that the complaint was decided in January, 1993, whereas a suit for recovery of Rs,20,71,390 (C..O.S. No,46 of 1992) was filed by the petitioner-Bank against the said respondents in September, 1992. It flows therefrom that when the respondent No,1 investigated and/or inquired in the matter and made the aforenoted recommendations, the subject-matter of the complaint was sub judice before a Court of competent jurisdiction. According to Article 9(1)(a) of Order 1 of 1983, Wafaqi Mohtasib, shall have no jurisdiction to investigate or inquire into the matter which is sub judice before a Court of competent jurisdiction. Thus, I am of the view that in-this complaint, respondent No,1 did not have the jurisdiction to embark upon the dispute between the parties as highlighted in the complaint and respondent No,1 surely exceeded from his jurisdiction.
9. In view of the above reasons, I am constrained to hold that the impugned order passed by respondent No,1 is not sustainable under the law as the same was passed, inter alia, in excess of the jurisdiction conferred upon respondent No,1 under Order 1 of 1983, thus, the same cannot be maintained and is liable to be interfered by this Court in exercise of its Constitutional jurisdiction, which is discretionary and equitable.
10. For the foregoing reasons, the present petition is accepted and the impugned order dated 31-1- 1993 passed by respondent No,1 is declared to be illegal and without lawful authority, without jurisdiction and having no legal effect. No order as to costs.