' CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that respondent No,1 secured a loan from appellant whereas respondent No,2 stood as guarantor to respondent No,
1. An agreement was also executed between the parties. The respondents failed to discharge their liabilities in terms of the agreement arrived between the parties. The appellant being aggrieved filed suit for recovery of sum of Rs.132,563 due from the respondents as principal amount of finance, mark-up and liquidated damages 20% and increased charges together with other cost and expenses till the full and final liquidation of the liability in the suit amount in terms of the agreement of finance inter parties by sale and auction of hypothecated stocks in trade etc. As mentioned in the body of the plaint, under the provisions of the Banking Tribunals Ordinance. The learned Banking Tribunal No,2, Faisalabad decreed the suit vide judgment and decree dated 9-6- 1996 to the extent of Rs.87,128 alongwith the cost of the suit. The respondents were directed to deposit the same in four equal instalments commencing from 1-7-1996. The appellant being aggrieved filed this appeal which was admitted for regular hearing vide order dated 28-4-1997.
Service of the respondents was effected as is evident from the report of process-server dated 21- 5-1997. Respondent No,1 had engaged Rai Muhammad Tufail Kharal, Advocate who had filed power of attorney in the office on 10-9-1997 vide Diary - No,7293. Respondent No,2 did not engage any counsel. Office sent notice to the parties on 26-7-2003 for 10-9-2003. Despite notice nobody entered appearance on behalf of respondent No,2. Therefore, ex parte order is passed against her.
2. Learned counsel of the appellant submits that learned Banking Tribunal erred in law not to grant mark-up to the appellant in terms of the agreement arrived between the parties. He further submits that learned Banking Tribunal decreed the suit vide judgment and decree dated 9-6-1996 and the appellant filed appeal before this Court on 13-8-1996. Office raised objection on 6-10-1996 which was removed by the appellant and refiled the same on 19-2-1997. Learned counsel of the appellant submits that Banking Tribunal has no jurisdiction to take the cognizance of the matter in terms of the law laid down by the Full Bench of this Court in Messrs Chenab Cement Products (Pvt.)
Limited and others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672.
3. Learned counsel of respondent No,1 submits that decree is saved on the well-known principle of past and closed transaction as held by the Full Bench in the aforesaid judgment in view of para.12 of the said judgment.
4. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.
5. It is better and appropriate to reproduce para.12 of the judgment of the Full Bench in Messrs Chenab Cement Products (Pvt.) Limited and others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672:-- "12. Before parting with the case we may also state that the declarations made by us in this judgment shall not affect cases past and closed or invalidate the judgments/ decrees, orders, fines or sentences or proceedings which have become final. As a result of this judgment no vacuum will be created as these cases are also triable by the Courts created under the Banking Companies (Recovery of Loans) Ordinance, 1979, which can also try cases under the Islamic System of Banking after the amendment of the definition of loan by the Amending Ordinance No,58 of 1980."
' A number of writ petitions were filed as to what is the effect of observations made by the learned Full Bench of this Court in para.12 above and as to whether the decrees passed by the Banking Tribunals before the date of rendering of the aforesaid Full Bench Judgment dated 21-7-1996 against which no appeal was filed and they were challenged by filing Constitutional petitions are saved or not affected by said judgment, are now subsisting decrees and as such still executable. A Full Bench was constituted to resolve the aforesaid controversy. The Full Bench resolved the controversy in Syed Farasat Ali Shah v. Allied Bank of Pakistan Limited 2002 CLD 759 and laid down the following principle:-- "11. After having examined the case-law, as noted above, we have come to the conclusion that the consistent view of this Court as well as the Supreme Court of Pakistan is that when a decree passed by a Banking Tribunal was not challenged by way of instituting the appeal and the same has been called in question only through the filing of a writ petition, which was disposed of by judgment rendered by this Court in Chenab Cement Product, in that case the decree passed by the Banking Tribunal is saved, would be considered to be past and closed case and decree has become final by virtue of para.12 of the judgment rendered in the aforenoted case of Chenab Cement Product. However, if any decree passed by the Banking Tribunal has been called in question through the filing of appeal and simultaneously by way of filing the writ petition and the latter has been disposed of the Chenab Cement Product's case, in that event the said decree would not be covered within the scope of para.12 of judgment of Chenab Cement Product's case, would not fall within the term 'past and closed cases' and, thus, the decree passed deemed to be set aside.
12. Applying the aforesaid yardstick to the present cases, as is evident from the narrative given in para No,3 above, in all cases in hand decrees were passed prior to the date of rendering of the judgment of Chenab Cement Product and those were not called in question through the filing of the appeals, but the same were challenged through the institution of the writ petitions which were statedly by the judgment passed in all these cases are saved, those would, definitely fall within the term "past and closed cases" and have become final within the meaning and scope of para.12 of the judgment given in the afore-mentioned case and there is no legal impediment in executing the same. We are of the considered view that all the writ petitions filed by the petitioners are devoid of any force."
' Thereafter the question of law arose where the decrees were passed before rendering the judgment by the Full Bench in the said Chenab Cement Product's case supra viz. 21-7-1996 and the judgments of this Court on the basis of the judgment of the Full Bench decided the controversy in Aman Ullah Khan v. National Bank of Pakistan 2002 CLD 950 in the following terms:-- "Applying the aforesaid yardstick to the present case, as the judgment and decree was passed before the date of rendering of the aforesaid judgment in Chenab Cement Product's case viz. 21-7- 1996 and the same was challenged through the filing of present appeal, therefore, the decree under appeal is not saved, does not fall within the terms 'past and closed cases' within the meaning and scope of para.12 of the judgment in the aforenoted case Chenab Cement Product and thus the decree shall be deemed to be set aside."
' In view of the above discussion, the present appeal .Is accepted and the impugned judgment and decree dated 9-6-1996 passed by the then Banking Tribunal is set aside with no order as to costs.
The result would be that the suit filed by the appellant against the respondents shall be deemed to be pending before the newly-constituted Banking Courts established under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the said Banking Court shall now decide the suit afresh after hearing the parties and in accordance with the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It is pertinent to mention here that suit was filed on 3-12-1995. Therefore, the learned Banking Court, Faisalabad is directed to decide this suit preferably within a period of three months from the receipt of the judgment. Office is directed to immediately transmit the file to the Administrative Judge Banking Court, Faisalabad who may entrust the same to any other Banking Court or decide the same himself, according to its schedule.
Parties are directed to appear before the Administration Judge Banking Court, Faisalabad on 22-9- 2003.