' MIAN HAMID FAROOQ, J.---This single judgment shall decide the present appeal (R.F.A. No,31 of 1995) and the Constitutional Petition (Writ Petition No,14276 of 1994) as common questions of law and facts are involved in both the cases, the parties and the judgments and decrees are the same.
2. The appellants/petitioners, through the filing of the present appeal and the connected Constitutional petition, have called in question judgment and decree dated 3-11-1994, whereby the then Banking Tribunal, after finding that the appellants failed to furnish the bank guarantee of the suit amount, as directed, on 13-10-1994, proceeded to decree the respondent-Bank's suit for the recovery of Rs.9,97,25,602.
3. Facts relevant for the decision of the two cases are that the respondent-Bank filed a suit for the recovery of Rs.9,97,25,602, against the appellants, before the then Banking Tribunal (since defunct) and the appellants, in response to the notice issued under section 6(2) of the Banking Tribunals Ordinance, 1984 (since repealed), filed the reply to the show-cause notice thereby, inter alia, pleading that appellants Nos.1 and 2 never stood guarantors. The case remained pending for a considerable time and the then Banking Tribunal, after finding that the suit has not been decided and period of 90 days has elapsed, directed the appellants to furnish bank guarantee equal to the suit amount within a period of 15 days, vide order dated 13-10-1994. The appellants did not comply with the said order and resultantly the learned Banking Court, after holding that the requisite bank guarantee has not been furnished, proceeded to pass a decree of the suit amount, against the appellants, vide judgment and decree dated 3-11-1994. Feeling aggrieved, the appellants filed the Constitutional petition (Writ Petition No,14276 of 1994) thereby, inter alia, challenging the vires of the provisions of the Banking Tribunals Ordinance and also assailing the aforenoted judgment and decree. In addition to that the appellants, within the limitation period, filed the appeal (R.F.A. No,31 of 1994) against the same judgment and decree.
4. Learned counsel for the appellants, while relying upon Messrs Chenab Cement Product (Pvt.) Ltd.
And others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672 and Syed Frasat Ali Shah v.
Allied Bank of Pakistan Ltd. 2002 CLD 759, has submitted that the impugned judgment and decree does not come within the term "past and closed cases", therefore, the same shall be deemed to be set aside. Conversely, the learned counsel representing the respondent-Bank has supported the impugned judgment and decree.
5. In these cases, the judgment and decree was passed by the then Banking Tribunal, on 3-11-1994, and the appellants not only filed the Constitutional petition thereby challenging the vires of the Banking Tribunals Ordinance, 1984, but have also assailed the said judgment and decree through the filing of an appeal under section 9 of the Banking Tribunals Ordinance, 1984.
6. We have examined the aforenoted judgment of Messrs Chenab Cement Product and find that the Full Bench of this Court, while disposing of various Constitutional petitions, wherein the decrees passed by the learned Banking Tribunal were challenged, declared certain provisions of the Banking Tribunals Ordinance, 1984, as unconstitutional and the notifications appointing the Presiding Officers of the Banking Tribunals, issued under the Banking Tribunals Ordinance, 1984, were also declared as unconstitutional and were, thus, quashed. It would be appropriate to reproduce para.11 of the said judgment, which reads as follows:-- "11. For the above reasons, section 4, section 6(6) as amended by Act VII of 1990, (as it presently stands), first proviso to section 9 of the Banking Tribunals Ordinance, 1984, are hereby declared unconstitutional as these erode the independence of judiciary and are hit by Article 175 read with Articles 2-A, 4, 8 and 25 of the Constitution of the Islamic Republic of Pakistan and the notifications appointing Presiding Officers of the Banking Tribunals issued under the Banking Tribunals Ordinance, 1984, are equally unconstitutional and without lawful authority and are hereby quashed."
7. However, this Court in the case of Messrs Chenab Cement Product supra, in para.12 of the said judgment observed that the declarations made in this judgment shall not affect cases past and closed or invalidate the judgments/ decrees, which have become final. Para.12 of the judgment is reproduced below:-- "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 loans by the amending Ordinance No,58 of 1980."
8. Subsequently a question arose as to what is the effect of the observations made by the Full Bench in para.12 of the judgment of Messrs Chenab Cement Product ibid. Full Bench of this Court in a case reported as Syed Farasat Ali Shah v. Allied Bank of Pakistan Ltd. 2002 CLD 759, while deciding certain petitions came to the following conclusions:- "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 decrees passed deemed to be set aside."
9. Applying the aforesaid para meters laid down in the case of Syed Farasat Ali Shah, supra, to the present cases, we are of the view that as the judgment and decree, under appeal, 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 the present appeal as well as Constitutional petition, therefore, the decree under appeal, is not saved, does not fall within the terms of "past and closed cases" within the meaning and scope of Para.12 of the judgment rendered in the case of Chenab Cement Product and, thus, the decree assailed in both the cases, shall be deemed to be set aside.
10. In the above perspective, both the appeal and Constitutional petition are allowed and the judgment and decree dated 3-11-1994, passed by the then Banking Tribunal is set aside with no orders as to cost. Result would be that the suit for the recovery of Rs.9,97,25,602 (Suit No,4001 of 1993) shall be deemed to be pending before the newly constituted Banking Court, 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, of course, in accordance with the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
As the claim in the suit exceeds from 50 Millions Rupees, therefore, now the case shall be heard and tried by the learned Judge of this Court, exercising the powers of Banking Court as per section 2(b) of Ordinance, 2001.