JAWWAD S. KHAWAJA, J- The respondents have been served. IDBP respondent No. 2 and National Bank of Pakistan respondent No. 8 have entered appearance through counsel. The other respondents have not appeared despite service. They are, therefore, proceeded against ex parte.
2. The circumstances, in which the present writ petition was admitted to regular hearing have already been noted in the admitting order dated 24.10.2002. The said order, for completeness, is reproduced as under:- "This writ petition impugns the order dated 15.10.2002 passed by the learned Banking Court No. II, Lahore. The facts necessary for deciding this petition are straightforward. IDBP respondent No. 2 filed a suit against the petitioner and respondents Nos. 3 to 8 before the learned Banking Court No. II, Lahore, for recovery of a sum of Rs. 1,33,15,763/-. According to learned counsel, the break up of the aforesaid amount, as given in the plaint, shows that the principal amount is only Rs. 53,17,812/-. The balance amount of Rs. 79,77,850/- has been claimed by IDBP on account of mark-up, fines and penalties.
(2) The petitioner (defendant before the learned Banking Court) filed an application under Section 9 of the Non-Performing Assets and Rehabilitation of Industrial Undertakings (Legal Proceedings)
Ordinance No. LVIII of 2000 before the learned Banking Court praying that the question of IDBP's claim and, in particular, the matter of fines and penalties claimed by IDBP in its suit by referred to a Verification Committee envisaged in the aforesaid statute. The learned Banking Court dismissed the aforesaid application by means of the impugned order, It has been held by the learned Banking Court that it has no power to refer the matter to the Verification Committee. The reason for this conclusion has been set out in the concluding paragraph of the impugned order which, for case of reference, is reproduced as under:- "I have heard the learned counsel for parties and perused the record of this case. According to Section 4 of the Non-Performing Assets and Rehabilitation of Industrial Undertakings (Legal Proceedings) Ordinance, 2000, only the High Court of a Province has jurisdiction to pass the order as prayed for in the application. The other contention is that the finance involved/outstanding payment obligation should exceed Rs. 30.00 (M). The obligation as claimed in the plaint is less than Rs. 6.30 (M) as the obligation mentioned in the plaint is Rs. 133,15,763/49. As a result of above discussion I see no force in this application and the same is hereby dismissed."
(3) Learned counsel for the petitioner contends that the aforesaid reasoning is not in accordance with the provisions of Section 9 of the Ordinance LVIII of 2000 because all Courts dealing with matters relating to non-performing assets, as the term has been defined in Ordinance LVIII of 2000, have the power to refer matters to the Verification Committee."
3. Learned counsel for the respondents Nos. 2 and 8 have drawn the attention of the Court to the definition of non-performing asset given in Section 2(g) of the Ordinance No LVIII of 2000. Since the said provision has relevance, it is, for convenience, reproduced as under:-- 2(1 )(g) "Non-performing asset" means any financial asset.
(a) which is held as an asset on the books of a financial institution.
(b) with respect to which the obligor has been in arrears on any payment obligation for a period more than three hundred and sixty-five days, including-
(i) collateral with respect to any financial asset; and
(ii) a whole or partial right or interest of a financial institution in any financial asset, that otherwise constitutes a nonperforming asset including a financial asset with respect to which the financial institution has an ongoing funding obligation; and
(c) with respect to which the obligor's outstanding payment obligation to any financial institution exceeds thirty million rupees: Provided that the Federal Government may, by notification in the official Gazette, alter, reduce or increase the said amount as and when it deems fit."
4. Learned counsel for the petitioner argued that sub- clauses (a), (b) and (c) of Section 2(1 )(g), reproduced above, are disjunctive. On this basis, it was contended that sub-clause (a) should be read independently and because the amount claimed by the respondent Banks included the disputed amount of fines and penalties, the learned Banking Court had the power to refer the matter to a Verification Committee under Section 9 of Ordinance LVI1! Of 2000 even though the amount was less than rupees thirty million. This argument is misconceived. If sub-clause (a) is read disjunctively, as argued by learned counsel, then it would lead to the absurd conclusion that even a performing asset on the books of a financial institution would fall within the definition of non-performing asset, It is only if sub-clauses (a) , (b) and (c) aforesaid are read conjunctively, that meaning can be given to Section 2(1 )(g) of Ordinance LVIII of 2000. The ingredients given in each of these sub-clauses have to exist simultaneously if an asset on the books of a financial institution is to be treated as a non-performing asset. The benefits of Section 9 of Ordinance LVIII of 2000 are available to financial institutions and their customs only in respect of non-performing assets and not otherwise.
5. It is evident from a plain reading of the aforesaid statutory provision that in order for any non- performing asset to be dealt with under the aforesaid Ordinance, the amount of such non- performing asset should be more than thirty million rupees as stipulated in sub-clause 'c' of Section 2(g), reproduced above. Since Section 9 of the aforesaid Ordinance is applicable only to non-performing assets, it follows that the provisions of Section 9 can be available to the petitioner only if the amount involved is in excess of thirty million rupees, In the present case, the amount of the claim against the petitioner is Rs. 1,33,15,763/-. This amount, being less than thirty million rupees, the provisions of Section 9 of the above-referred Ordinance re not available to the petitioner.
5. In view of the above discussion, this writ petition is dismissed.