' RANA BHAGWANDAS, J.---Petitioner-Agricultural Development Bank of Pakistan seeks leave to appeal against Sindh High Court judgment, dated 6-4-2001 passed in C.P. No,D-1421 of 2000 partially allowing the same.
2. Respondent No,1 being the son and administrator of the estate of deceased-Mst. Fakhar-un-Nisa appointed by the High Court of Sindh in Miscellaneous Application No,154 of 1987 filed a Constitutional petition before the High Court seeking the following reliefs:--
(i) Declare that the demand for payment of the amount by the respondents represents the amount of interest/compound interest hence it is unIslamic and illegal cannot be recovered.
(ii) Declare that the demand for payment of Rs,7,46,447 or Rs,32,193 or any other amount is disputed and hence cannot be recovered as arrears of land revenue and/or by adopting any other coercive methods.
(iii) Restrain the respondents permanently from recovering the amount of Rs,7,46,448 or Rs,6,32,193 or any other amount from the petitioner and/or from the properties of the deceased Mst. Fakhar- un-Nisa as arrears of land revenue and/or by adopting any other coercive method.
3. It seems that deceased Mst. Fakhar-un-Nisa obtained a loan of Rs,9,51,000 from the petitioner- Bank some times in 1984 against a mortgage of her lands agreeing to pay the interest at 11% and 12% per annum on the principal amount of loan advanced whether in cash or in kind from the date of each payment until it was fully paid. On her death, she was survived by respondent No,1 and his brother namely Zahid Akhtar as her sons. Zahid Akhtar also died at London on 11-7-1998. A Letter of Administration, relating to the properties left by deceased, was issued on proper application in favour of respondent No, 1 and his brother to administer the estate of the deceased. Petitioner No,2 i,e, Manager, ADBP, Memon Goth Branch, by his letter, dated 6-10-1998 called upon the husband of the deceased for payment of Rs, 4,21,188 whereupon a sum of Rs,50,000 was deposited by respondent No,1 in the Bank account on 31-12-1998. By another letter dated 15-4-1999, the petitioner-Bank called upon for payment of Rs,3,71,188 whereupon the respondent No,1 deposited a sum of Rs,2,25,000 in the Bank account vide receipt, dated 18-11-1998. It is the case of respondent No,1 that as against the principal amount of Rs,9,51,000 a sum of Rs,18,15,778 in all had been paid to the petitioner-Bank and, thus, the liability stood discharged but the petitioner-Bank went on demanding the amount by issuing another demand letter for payment of Rs,7,46,447. Lastly, the petitioner-Bank demanded a sum of Rs,6,32,193 as the amount due but the stance of the respondent No,1 appeared to be that the entire loan having been repaid there were no arrears at all. Apprehending coercive steps and taking over forcible possession of the Poultry Farm of deceased-borrower, a writ petition was filed before High Court, which was partly allowed in the following terms:- "We are of the view that proper hearing has to take place and it has to be seen whether such compound interest is payable under the law or not. Evidence shall also have to be recorded to determine liability and the extent of liability. The proper forum, therefore, is the Banking Court and not the Constitutional jurisdiction of this Court. In case the respondent No,2 feels that any amount is outstanding and is payable then they should move the necessary competent Court for recovery of the amount. Coercive tactics are not permissible under any civilized society. The petition is allowed to that extent."
4. Learned counsel for the petitioner vehemently contended that the petitioner-Bank was incorporated under the provisions of Agricultural Development Bank of Pakistan Ordinance (IV of 1961). He vehemently urged that by virtue of section 25 of the Ordinance, petitioner-Bank has been vested with absolute powers to recover amount due from its borroweRs, Subsection (2) stipulated that all sums due to the Bank shall be recoverable as arrears of land revenue main thrust of the argument of the learned counsel was that since the petitioner-Bank is authorized under the Ordinance to effect recovery of bank dues, letters issued by petitioner No,2 calling upon the respondent to pay the amount due should be treated as final and recoverable as arrears of land revenue.
5. Conversely, learned counsel for respondent No,1 did not challenge the authority of the petitioner- Bank to effect recovery of Bank dues from its borrowers, but he vehemently contended that bank was not authorized to determine the amount due against a borrower, which must be ascertained and decided by independent judicial forum created under the law. Learned counsel further submitted that the respondent having already paid almost double the amount obtained by way of loan from the petitioner-Bank, after the death of the deceased-borrower, enforcement of the loan even if any cannot be effected by way of arrears of land revenue against the legal heirs of the deceased. Learned counsel heavily relied upon celebrated judgment of this Court reported as Agricultural Development Bank of Pakistan v. Sanaullah Khan (PLD 1988 SC 67) laying down that all provisions of law, which authorized any statutory authority to recover any amount as arrears of land revenue can be invoked only after determination of the amount due as fixed, ascertained and determined sum of money. The principle of law enunciated in the case of Abdul Latif v. Government of West Pakistan (PLD 1962 SC 384), interpreting the expression "defaulter" within the meaning of Punjab Land Revenue Act,- 1887 or the Revenue Recovery Act, 1890 was affirmed. While interpreting the provisions of section 79 as contained in the West Pakistan Land Revenue Act, 1967 as applicable to the Province of N.-W.F.P., it was observed that on parity of reasoning the machinery provisions for the realization of the amount as arrears of land revenue under section 25 of the Ordinance can only be invoked after the procedure for determination of arrears due is adopted and duly certified.
Zafar Hussain Mirza, J. (as his Lordship then was) speaking for the. Full Bench held that in absence of such a certificate, the person concerned without being given an opportunity of hearing would not be a defaulter within the meaning of the law. Otherwise, a mere claim cannot be recovered by one of the parties to the contract by coercive procedure provided in the Ordinance. Such unjust and arbitrary power could not be attributed to have been conferred on the functionary by the Legislature.
6. There appears to be much substance in the submission of the learned counsel for the respondent that the petitioner-Bank cannot be equated with a proper judicial forum for determination of the amount due against a borrower notwithstanding the fact that summary power of recovery of amount due has been conferred on it by law with a view to obviate cumbersome procedure of execution of decree as contained in Order XXI of the Code of Civil Procedure and the Banking Laws. The submission is not only supported by the earlier judgment of this Court but also by precedents reported as ARK Ocean Lines Ltd. v. Director of Industries and Mineral Development (PLD 1976 Karachi 610), Hussain Ali v. Government of Pakistan (1989 MLD 4721), Grain System (Pvt.) Ltd. v. ADBP (1993 MLD 1031), Abdul Karim v. Province of Sindh (2001 MLD 69) and Raj Kumar v. National Bank of Pakistan (1994 CLC 206).
7. Ratio decidendi of the precedent cases clearly appears to be that in the event of substantial dispute between the parties, the procedure of recovery of amount by way of land revenue arrears would be available only where the amount claimed was found due, ascertained and determined by a competent judicial forum. We are in no manner of doubt that this unbridled power cannot be said to be available with the petitioner-Bank in the peculiar facts and circumstances of the case, in which the original borrower has died while his successor-in-interest has seriously disputed the liability giving authenticated facts and figures of having made payment as stated above. In the absence of any proper judicial determination as to the amount due by a proper forum created under the law, we do not find any legal flaw with the view taken by the High Court.
8. No other substantial ground has been urged in support of this petition, which is accordingly dismissed without prejudice to the right of the petitioner, if any, under the law to seek its remedy before the proper forum, if so advised.
9. There shall be no order as to costs.