Banking Laws
A
financial institution can also be declared by Govt. to be a Banking Co. PICIC
& ICP equated with other Banks for financial and administration control of
State Bank.
BANKING COMPANIES (RECOVERY OF LOANS) ORDINANCE (XIX OF 1979)
SECTION-2 (8) (i)
Leave to defend- plea of lack of jurisdiction- Pakistani company operating abroad – amount was paid and demand for return made out of Pakistan – hypothecated machinery lying out of Pakistan – plea rejected as agreement entered into in Pakistan Part of cause of action Section-20 CPC.
1990 CLC 1139 Kar.
Leave to defend- plea of lack of jurisdiction- Pakistani company operating abroad – amount was paid and demand for return made out of Pakistan – hypothecated machinery lying out of Pakistan – plea rejected as agreement entered into in Pakistan Part of cause of action Section-20 CPC.
1990 CLC 1139 Kar.
SECTION-2(e)
Statement of A/C prepared by a foreign branch of Pakistan Bank admissible as could not be regarded as foreign bank.
1990 CLC 1139 Kar.
Statement of A/C prepared by a foreign branch of Pakistan Bank admissible as could not be regarded as foreign bank.
1990 CLC 1139 Kar.
SECTION 2(b)
Borrower includes a surety or indemnifier – piercing through corporate veil.
PLD 1990 Kar. 186
PLD 1971 SC 585
PLD 1983 SC 457
PLD 1985 SC 97
PLD 1990 Kar. 186/190
NLR 1979 Civil 544
NLR 1984 SCJ 403
NLR 1989 AC 195
1990 MLD 2226
Borrower includes a surety or indemnifier – piercing through corporate veil.
PLD 1990 Kar. 186
PLD 1971 SC 585
PLD 1983 SC 457
PLD 1985 SC 97
PLD 1990 Kar. 186/190
NLR 1979 Civil 544
NLR 1984 SCJ 403
NLR 1989 AC 195
1990 MLD 2226
SECTION 2(2) & 13.
Contradictory pleas – date of decree was not a date of hearing – on that day hospitalized heart attack – no certificate – subsequent certificate being patient of diabetes – n o interference warranted.
1994 CLD 276 Lah. (D.B).
SECTION 2(2): CPC O-37
R-3; O-34 R-4.Contradictory pleas – date of decree was not a date of hearing – on that day hospitalized heart attack – no certificate – subsequent certificate being patient of diabetes – n o interference warranted.
1994 CLD 276 Lah. (D.B).
Defendant admitting plaintiff’s claim and being ready to repay provided easy installments given and no interest for period pending suit – court allowed plaintiff – no order passed re-mortgaged property – High Court in appeal passing preliminary decree keeping mortgaged properties intact – plea that consent judgment could not be modified by H.C. had no substance as no consent on behalf of plaintiff.
1994 SCMR 362
SECTION 6(1) & 6 (4)
As to change of forum from civil to Special Court Banking.
PLD 1992 Pesh. 87
PLD 1986 Lah. 42.
1985 CLC 2932 Lah.
PLD 1984 Lah. 417.
As to change of forum from civil to Special Court Banking.
PLD 1992 Pesh. 87
PLD 1986 Lah. 42.
1985 CLC 2932 Lah.
PLD 1984 Lah. 417.
SECTION-6(4)
Suit in which existence of loan obtained is sought to be set at naught is barred before civil court.
1990 MLD 1776.
Suit in which existence of loan obtained is sought to be set at naught is barred before civil court.
1990 MLD 1776.
SECTION 6(1) (a) & 6(4).
Special Court Banking has the exclusive jurisdiction when borrower is the plaintiff and the dispute arises out loan/finance transaction and civil courts have no jurisdiction.
1993 SCMR 1996
Judgment of S.C. reported as 1993 SCMR 1996 interpreted by Justice Malik Qayyum in W.P. No.15602/93 vide order dated 31-05-1994 unreported same order in W.P.No.16885/93.
See PLD 1993 Lah. 328.
See 1993 MLD 1031 Lah.
SECTION 6(4); CPC O-7.
R-11; Constitution (1973) Art.185(3).Special Court Banking has the exclusive jurisdiction when borrower is the plaintiff and the dispute arises out loan/finance transaction and civil courts have no jurisdiction.
1993 SCMR 1996
Judgment of S.C. reported as 1993 SCMR 1996 interpreted by Justice Malik Qayyum in W.P. No.15602/93 vide order dated 31-05-1994 unreported same order in W.P.No.16885/93.
See PLD 1993 Lah. 328.
See 1993 MLD 1031 Lah.
Suit before civil judge for declaration that loan agreement with defendant Bank was illegal, ultra vires, result of under influence and ineffective – plaint liable to be rejected under CL.(d) of O-7, R-11 CPC being barred by any law.
1994 SCMR 1970
1993 SCMR 1996
1993 MLD 1031 (Lah)
PLD 1993 Lah 328
1990 MLD 1776.
SECTION 6(4), 13(a) & 2(f).
·
Amendment Act (SVII) of 1992; Amendment II of 1983; as to
pecuniary jurisdiction of High Court and Special Court Banking Explained
·
What is retrospective or retroactive law and its effects.
·
The object of presumption against retrospective
construction is to protect the vested or existing rights. However, it would
have no application of the courts as there is no vested right in procedure.
PLD 1994 Kar. 258
SECTION-6,7 (2) & 12.
Leave – goods of considerable value pledged with Bank – Custody with Bank – could be sold by Bank – having raised – order to deposit entire amount in dispute claim an unbearable condition for leave – leave granted on furnishing security to the satisfaction of trial court.
1987 MLD 399 Lah.
PLD 1963 SC 163.
Leave – goods of considerable value pledged with Bank – Custody with Bank – could be sold by Bank – having raised – order to deposit entire amount in dispute claim an unbearable condition for leave – leave granted on furnishing security to the satisfaction of trial court.
1987 MLD 399 Lah.
PLD 1963 SC 163.
SECTION 6 & 7 (2).
Grounds for leave e.g. personal guarantees have become time barred, suit based on fictitious documents, incorrect statement of A/C containing unauthorized enteries, entire loan period. Suit filed for Rs.1,158,420/- borrower admitted outstanding Rs.678,745/-, hypothecation, guarantee pronote not denied, incorrect entry in statement not pinpointed – no substantial question of law or fact involved – leave rightly refused – appeal dismissed.
1992 CLC 1906 Pesh. (DB).
Grounds for leave e.g. personal guarantees have become time barred, suit based on fictitious documents, incorrect statement of A/C containing unauthorized enteries, entire loan period. Suit filed for Rs.1,158,420/- borrower admitted outstanding Rs.678,745/-, hypothecation, guarantee pronote not denied, incorrect entry in statement not pinpointed – no substantial question of law or fact involved – leave rightly refused – appeal dismissed.
1992 CLC 1906 Pesh. (DB).
SECTION 7 H.N (f)
Banking Companies (Recovery of Loans) Ordinance 79 – law favour disposal of lis on hearing not on technicalities – end justifies means not vice versa.
PLD 1994 Kar. 275
Banking Companies (Recovery of Loans) Ordinance 79 – law favour disposal of lis on hearing not on technicalities – end justifies means not vice versa.
PLD 1994 Kar. 275
SECTION 7(2)
Even if suit not based on negotiable instrument i.e. bill of exchange, Hundi, Promissory Note, Special Court obliged to follow summary procedure of O-37 CPC in all suits before it including suits based on mortgages of all kinds on statement of account.
PLD 1995 SC 362
Even if suit not based on negotiable instrument i.e. bill of exchange, Hundi, Promissory Note, Special Court obliged to follow summary procedure of O-37 CPC in all suits before it including suits based on mortgages of all kinds on statement of account.
PLD 1995 SC 362
SECTION 7(2)
CPC applicable except so far as excluded by provisions of the Ordinance.
PLD 1994 Kar. 275
PLD 1978 SC 220
P. 1972 Lah. 603
P. 1993 Lah. 706 H.N. (k).
CPC applicable except so far as excluded by provisions of the Ordinance.
PLD 1994 Kar. 275
PLD 1978 SC 220
P. 1972 Lah. 603
P. 1993 Lah. 706 H.N. (k).
SECTION 7(2)
In case of default in obtaining leave or failing to apply for obtaining leave – allegations in the plaint shall be deemed to be admitted and plaintiff shall be entitled to decree.
1992 CLC 1906 Pesh. 8.
SECTION 7(2)In case of default in obtaining leave or failing to apply for obtaining leave – allegations in the plaint shall be deemed to be admitted and plaintiff shall be entitled to decree.
1992 CLC 1906 Pesh. 8.
Procedure of O-37 CPC having been made applicable it is only an enabling provision for procedure – does not mean suit falls under O-37 in substance, never ART. 64-A of Limitation (3-years) not applicable rather Art-132 (12-years) applicable.
KLR 1993 civil cases 169 (Lah).
SECTION 7(2)
Procedure of O-37 CPC having been made applicable it is only an enabling provision for procedure – does not mean suit falls under O-37 in substance, never ART. 64-A of Limitation (3-years) not applicable rather Art-132 (12-years) applicable.
KLR 1993 civil cases 169 (Lah).
SECTION 7(2)
Procedure – contention that special court should have followed procedure of O-34 CPC in suit based on mortgage repelled.
1983 CLC 2828 Lah. H.N(a).
SECTION 7(2)
There are suits based on mortgage and there are suits based on statements of accounts.
1992 CLC 1906 Pesh. H.N.(b).
SECTION 7(2)
In conditional leave to defend the security would include the security already furnished against loan.
1992 CLC 1964 Kar. (DB).
In conditional leave to defend the security would include the security already furnished against loan.
1992 CLC 1964 Kar. (DB).
SECTION 7(2)
High Court acting asSpecial Court
1991 SCMR 33.High Court acting as
CONTRARY
– Grant of leave to appear and defend suit – question of – bank loan adequately
secured by mortgage of immovable property – held, it was quality of defence and
not extent of security which should be governing factor.
1985 CLC 2467 Lah. (DB)
1985 CLC 2467 Lah. (DB)
CONTRARY – Even in a mortgage suit where loan is
fully secured, leave cannot be granted as a matter of right but has to make out
a case for grant of leave. General principle for granting leave enunciated.
1986 CLC 1086 Kar.
1986 CLC 1086 Kar.
SECTION 7(2), CPC O-37 R-2.
Leave to defend granted to the defendant without imposing any condition as the loan fully secured under a registered mortgage more in value then claim in suit.
PLD 1984 Kar. 27
NLR 1989 A.C. 101.
1984 SCMR 634
1991 MLD 2599.
SECTION 7(2); CPC O-37
R-1,2,3.Leave to defend granted to the defendant without imposing any condition as the loan fully secured under a registered mortgage more in value then claim in suit.
PLD 1984 Kar. 27
NLR 1989 A.C. 101.
1984 SCMR 634
1991 MLD 2599.
Fact that there existed valid mortgage which had not shown to be sufficient to satisfy claim, necessitated grant of leave to defendants/guarantors on furnishing surety of specifies amount.
1991 MLD 2599
In case of sufficient security – unconditional leave.
1991 MLD Kar. 2601
SECTION 8
Special court required to pass preliminary decree in suit founded on mortgage – failed to pass preliminary decree – in impugned judgment it said exparte decree was final decree – defendants deprived of opportunity to pay into couirt – decree to be set aside valid decree a condition precedent of auction proceedings.
P.1993 Lah. 706 HN (i)
(DB).Special court required to pass preliminary decree in suit founded on mortgage – failed to pass preliminary decree – in impugned judgment it said exparte decree was final decree – defendants deprived of opportunity to pay into couirt – decree to be set aside valid decree a condition precedent of auction proceedings.
SECTION 8(2) INTEREST – VALIDITY
Provisions of Ord. 1979 are protected inspite of Art.2-A & 270-A of Constitution – Interest though unIslamic could be granted.
1992 CLC 1906 Pesh. H.N (d)
PLD 1987 Kar. 296
PLD 1987 Kar. 612.
SECTION 8(2) INTEREST
Property sought to be auctioned is for recovery of interest – Question of interest/compound interest pending before Supreme Court – auction could not be done.
NLR 1994 CLJ 300.
Property sought to be auctioned is for recovery of interest – Question of interest/compound interest pending before Supreme Court – auction could not be done.
NLR 1994 CLJ 300.
SECTION 8(3) Execution.
Contravention of provisions of O-21 R-66 – sale would be rendered nullity.
PLD 1993 Lah. 706 HN (m).
SECTION 8(3)
Execution.Contravention of provisions of O-21 R-66 – sale would be rendered nullity.
PLD 1993 Lah. 706 HN (m).
According to O-21 R-67 read with R-54(2) CPC proclamation had to be made by beat of drum, copy affixed on property and court house – U/O 21 R-68 there should be an interval of 30 days between sale and the proclamation. Rule 69 lays where sale through auction was adjourned for more than 7-days, fresh proclamation should be issued unless waived by judgment debtor.
PLD 1993 Lah. 706 HN (m).
SECTION 8(3) Execution.
Non publication of sale proclamation by beat of drum, had caused serious injury to aggrieved persons – omission along with other illegalities – no substantial compliance – proclamation under O-21 R-66 appears to be mandatory.
PLD 1993 Lah. 706 HN (m).
SECTION 8(3) Execution
As to mode and purpose of fixing reserve price for auction.
PLD 1993 Lah. 706 HN (n).
SECTION 8(3) Execution
Non-deposit of specific amount by auction purchaser within requisite time would render sale void.
PLD 1993 Lah. 706 HN (n).
SECTION 8(3) Execution
O-21 R-89, 90, 91 & 92. Limitation Act Sec-18. Where a party was kept away from knowledge of their right to sue or file an application, because of fraud of other party, time would run from date of discovery of fraud – exparte decree and subsequent auction proceedings and confirmation of sale set aside.
P.1993 Lah. 706 HN (j) (k).
SECTION 8(3) Execution.
Material irregularities and fraud in publishing & conducting sale.Sale
PLD 1993 Lah. 706 HN (d).
Material irregularities and fraud in publishing & conducting sale.
PLD 1993 Lah. 706 HN (d).
SECTION 8(3) Execution
Contravention of provisions of O-21 Rule-66 – sale would be rendered nullity.
PLD 1993 Lah. 706 (HN) (m).
Contravention of provisions of O-21 Rule-66 – sale would be rendered nullity.
PLD 1993 Lah. 706 (HN) (m).
SECTION 8(3) Execution
According to O-21 Rule-67 read with R.54(2) CPC proclamation had to be made by beat of drum, copy affixed on property and court house – U/O 21 R-68 there should be an interval of 30-days between sale and the proclamation. Rule 69 lays where sale through auction was adjourned for more than 7-days, fresh proclamation should be issued unless waived by judgment debtor.
PLD 1993 Lah. 706 HN (Muhammad).
SECTION 8(3) ExecutionAccording to O-21 Rule-67 read with R.54(2) CPC proclamation had to be made by beat of drum, copy affixed on property and court house – U/O 21 R-68 there should be an interval of 30-days between sale and the proclamation. Rule 69 lays where sale through auction was adjourned for more than 7-days, fresh proclamation should be issued unless waived by judgment debtor.
PLD 1993 Lah. 706 HN (Muhammad).
Non publication of sale proclamation by beat of drum, had caused serious injury to aggrieved persons – omission alongwith other illegalities – no substantial compliance – proclamation under O-21 R-66 appears to be mandatory.
PLD 1993 Lah. 706 HN (m).
SECTION 8(3) Execution
As to mode and purpose of fixing reserve price for auction.
PLD 1993 Lah. 706 HN (n).
SECTION 8(3) Execution
Non-deposit of specific amount by auction purchaser within requisite time would render sale void.
PLD 1993 Lah. 706 HN (n).
Non-deposit of specific amount by auction purchaser within requisite time would render sale void.
PLD 1993 Lah. 706 HN (n).
SECTION 8(3) Execution
O-21 R-89, 90, 91 & 92. Limitation Act Sec.18. Where a party was kept away from knowledge of their right to sue or file an application, because of fraud of other party, time would run from date of discovery of fraud – exparte decree and subsequent auction proceedings and confirmation of sale set aside.
PLD 1993 Lah. 706 HN (p) (q) & (r).
O-21 R-89, 90, 91 & 92. Limitation Act Sec.18. Where a party was kept away from knowledge of their right to sue or file an application, because of fraud of other party, time would run from date of discovery of fraud – exparte decree and subsequent auction proceedings and confirmation of sale set aside.
PLD 1993 Lah. 706 HN (p) (q) & (r).
SECTION 11 &12 (REVIEW)
High Court, while acting as aSpecial
Court
PLD 1995 Kar. 577, PLD 2000 Lah. 162.
High Court, while acting as a
PLD 1995 Kar. 577, PLD 2000 Lah. 162.
SECTION 12 APPEAL
High Court directing to deposit decretal amount in cash before appeal could be admitted to hearing – plea that U/S 12(5) appellants could furnish security instead – such contention without merit – Petitioner having offered two properties as security – one subject of litigation in some court while the other fell short of decretal amount – High Court correct.
1994 SCMR 1747.
SECTION 12 APPEAL; 7(2); O-37 R-2 CPC – WRIT
JURISDICTIONHigh Court directing to deposit decretal amount in cash before appeal could be admitted to hearing – plea that U/S 12(5) appellants could furnish security instead – such contention without merit – Petitioner having offered two properties as security – one subject of litigation in some court while the other fell short of decretal amount – High Court correct.
1994 SCMR 1747.
Provisions of appeal available not availed – no writ conditional order for leave to defend – could have been challenged in appropriate proceedings – no writ, question of lack of jurisdiction not raised before appropriate forum – estopped to
raise
in writ.
1994 CLC 2150 Kar.
SECTION 12 APPEAL;
7(2); O-37 R-2 CPC – WRIT JURISDICTION.1994 CLC 2150 Kar.
Writ
– Writ against order of conditional leave to defend, no appeal available, writ
competent if order arbitrary, fanciful, capricious exercise of discretion.
1983 CLC 2828 Lah.
1983 CLC 2828 Lah.
SECTION 12 APPEAL; 7(2); O-37 R-2 CPC – WRIT JURISDICTION
Validity of condition of deposit for granting leave challenged in writ – no valuation of mortgaged properties on record – writ converted into appeal and allowed to extent that he would deposit cash of specified amount in 20-days.
1994 SCMR 512.
Validity of condition of deposit for granting leave challenged in writ – no valuation of mortgaged properties on record – writ converted into appeal and allowed to extent that he would deposit cash of specified amount in 20-days.
1994 SCMR 512.
SECTION 12 APPEAL; 7(2); O-37 R-2 CPC – WRIT JURISDICTION
Conditional order for leave to defend directing deposit of amount to defend. Suit not appealable cannot be questioned in writ.
PLD 1982 Lah. 353.
SECTION 12 APPEAL;
7(2); O-37 R-2 CPC – WRIT JURISDICTION Conditional order for leave to defend directing deposit of amount to defend. Suit not appealable cannot be questioned in writ.
PLD 1982 Lah. 353.
Interlocutory orders not appealable – no writ.
PLD 1982 Lah. 353.
SECTION 12 APPEAL; 7(2); O-37 R-2 CPC – WRIT JURISDICTION
Granting of conditional or unconditional leave discretion of court to be exercised judicially not arbitrarily or capriciously or in a manner defeating ends of justice. No writ.
PLD 1985 Kar. 178.
SECTION 12 APPEAL;
7(2); O-37 R-2 CPC – WRIT JURISDICTION Granting of conditional or unconditional leave discretion of court to be exercised judicially not arbitrarily or capriciously or in a manner defeating ends of justice. No writ.
PLD 1985 Kar. 178.
Order to deposit extra amount for granting leave not open to writ.
NLR 1982 Civil 315.
SECTION 12 APPEAL; 7(2); O-37 R-2 CPC – WRIT JURISDICTION
Constitutional jurisdiction in Banking matters not to be exercised in interlocutory matters, principles stated.
1986 MLD 2941.
SECTION 12 APPEAL;
7(2); O-37 R-2 CPC – WRIT JURISDICTION Constitutional jurisdiction in Banking matters not to be exercised in interlocutory matters, principles stated.
1986 MLD 2941.
Challenging condition of furnishing Bank Guarntee, writ not maintainable.
1989 CLC 1535.
SECTION-12 – WRIT MAINTAINABLE
Impugned order passed in excess of jurisdiction, arbitrary and flouting law, capricious to be interfered by H.C in W.P.
NLR 1982 Civil 97.
PLD 1989 Kar. 157.
1982 CLC 1625.
1982 CLC 1625.
NLR 1982 Civil 1.
SECTION 12(5)
Word “security” used in Sec.12(5) would include even security which was originally accepted against loan, hence to be considered as security in filing appeal.
1992 CLC 1964 Kar. (DB).
1984 SCMR 634 (FB).
SECTION 12(5) Word “security” used in Sec.12(5) would include even security which was originally accepted against loan, hence to be considered as security in filing appeal.
1992 CLC 1964 Kar. (DB).
1984 SCMR 634 (FB).
Appeal – penal in nature – benefit of doubt to be given to judgment debtor – “judgment debtor” or “security” at discretion of court – where order to furnish security was subject to stay by S.C. after that H.C. may extend time to furnish.
PLD 1994 Kar. 296
SECTION 12(5)
Appeal can be presented without security but cannot be admitted without security – security would include the security which was originally accepted against loan.
PLD 1988 Kar. 628 (FB).
DEBTOR MUST SEEK THE
CREDITORAppeal can be presented without security but cannot be admitted without security – security would include the security which was originally accepted against loan.
PLD 1988 Kar. 628 (FB).
PLD 1973 AJK 21
PLD 1967 Lah. 928.
PLD 1963 Kar.161
PLD 1959 Kar. 348.
PLD 1952 Lah. 45.
AIR 1927 PC 156
AIR 1957
AIR 1937 R 433.
PLD 1976 S.C. 790.
O.37
R.4 & O.9 R.13 “special circumstances” – admittedly not residing at address
given in plaint and notices issued to at the time of filing suit – plaintiff
under obligation to have given in plaint latest & accurate address – Bank
making correspondence not only at “L” but also at official address of one of
the defendants exparte set aside.
PLD 1993 Lah. 706 H.N. (a) (D.B.)
Debtor seeks the creditor – principle could be applied only where creditor had no laison with debtor and latter would be under obligation to keep former abreast of his address.
PLD 1993 Lah. 706 H.N.
(b) Debtor seeks the creditor – principle could be applied only where creditor had no laison with debtor and latter would be under obligation to keep former abreast of his address.
When address patently insufficient, or material defect, court not bound to take steps for service.
PLD 1993 Lah. 706 H.N. (c)
Where reparts of process server and postman indicated that defendants were not residing at a given address, proper course to ask plaintiff to supply correct address, plaintiff to either supply correct address or to show to satisfaction of court that he had no other address – where plaintiff intentionally not provided other address or suppressed same, subsequent exparte proceedings nullity.
PLD 1993 Lah.
706 H.N. (d)Where reparts of process server and postman indicated that defendants were not residing at a given address, proper course to ask plaintiff to supply correct address, plaintiff to either supply correct address or to show to satisfaction of court that he had no other address – where plaintiff intentionally not provided other address or suppressed same, subsequent exparte proceedings nullity.
PLEADINGS
Decision of court could not be based on ground not taken in pleadings and any evidence on such not taken ground to be ignored.
1991 CLC 140 Lah.Decision of court could not be based on ground not taken in pleadings and any evidence on such not taken ground to be ignored.
PLD 1976 SC 469.
1978 SCMR 85.
1987 CLC 157.
1988 CLC 337
PLD 1986 SC (AJ & K)
1989 CLC 1356 ref.
SETTING ASIDE – LIMITATION.
Art. 164 of Limitation Act.
Defendants
admittedly not served at their changed address which was within knowledge of
plaintiff – limitation would start from date of knowledge.
PLD 1993 Lah. 706 H.N. (g).
Plea of non-service of notice
being out of country not taken before not allowed.PLD 1993 Lah. 706 H.N. (g).
1987 SCMR 716.
SET OFF
Amount of set off, equitable compensation/damages allegedly accrued for non-disbursment of entire loan disallowed being not in pleadings.
1991 CLC 140 Lah.
Amount of set off, equitable compensation/damages allegedly accrued for non-disbursment of entire loan disallowed being not in pleadings.
1991 CLC 140 Lah.
EXECUTION
Special court required to pass preliminary decree in suit founded on mortgage – failed to pass preliminary decree – in impugned judgment it said exparte decree was final decree - defendants deprived of opportunity to pay into court – decree to be set aside valid decree a condition precedent of auction proceedings.
PLD 1993 Lah. 706 HN (i) (DB).
Special court required to pass preliminary decree in suit founded on mortgage – failed to pass preliminary decree – in impugned judgment it said exparte decree was final decree - defendants deprived of opportunity to pay into court – decree to be set aside valid decree a condition precedent of auction proceedings.
PLD 1993 Lah. 706 HN (i) (DB).
For
the purpose of execution of decree provisions of O-21 could be resorted to. In
case of conflict ordinance to prevail. Court could not pick and chose
provisions of CPC.
PLD 1993 Lah. 706 HN (j) (k).
PLD 1993 Lah. 706 HN (j) (k).
Material
irregularities and fraud in publishing & conducting sale. Sale
PLD 1993 Lah. 706 HN (d).
PLD 1993 Lah. 706 HN (d).
Contravention
of provisions of O-21, R-66 – sale would be rendered nullity.
PLD 1993 Lah. 706 HN (m).
PLD 1993 Lah. 706 HN (m).
According
to O-21 R-67 read with R-54(2) CPC proclamation had to be made by beat of drum,
copy affixed on property and Court House, under O-21 Rule-68 there should be an
interval of 30 days between sale and the proclamation. Rule 69 lays where sale
through auction was adjourned for more than 7-days, fresh proclamation should
be issued unless waived by judgment debtor.
PLD 1993 Lah. 706 HN (m).
PLD 1993 Lah. 706 HN (m).
Non
publication of sale proclamation by beat of drum, had caused serious injury to
aggrieved persons – omission along with other illegalities – no substantial compliance
– proclamation under O-21 R-66 appears to be mandatory.
PLD 1993 Lah. 706 HN (m).
PLD 1993 Lah. 706 HN (m).
As
to mode and purpose of fixing reserve price for auction.
PLD 1993 Lah. 706 HN (m).
PLD 1993 Lah. 706 HN (m).
Non
deposit of specific amount by auction purchaser within requisite time would render
sale void.
PLD 1993 Lah. 706 HN (n).
PLD 1993 Lah. 706 HN (n).
O-21 R-89, 90, 91 & 92 Limitation Act, Section 18.
Where a party was kept away from knowledge of their right to sue or file an applicatyion, because of fraud of other party, time would run from date of discovery of fraud – exparte decree and subsequent auction proceedings and confirmation of sale set aside.
PLD 1993 Lah. 706 HN (p) (q) & (r).
Where a party was kept away from knowledge of their right to sue or file an applicatyion, because of fraud of other party, time would run from date of discovery of fraud – exparte decree and subsequent auction proceedings and confirmation of sale set aside.
PLD 1993 Lah. 706 HN (p) (q) & (r).
BANKING COMPANIES (RECOVERY OF LOANS) RULES 1980
RULE 8; CPC O-5, R-20.
Concept of personal service as envisaged in O.5, R-20 has no place and reference in Rule 8.
PLD 1994 Kar. 303.
Concept of personal service as envisaged in O.5, R-20 has no place and reference in Rule 8.
PLD 1994 Kar. 303.
RULE 8: CPC O-37, R-2; Limitation Act Sec.5.
Leave to appear not filed within 10-days – In application for condonation of delay contended that the applicant does not subscribe to newspaper “Morning News” in which notice appeared – No ground for condonation of delay.
PLD 1994 Kar. 303.
PLD 1990 SC 497.
1993 MLD 54
1988 CLC 1068
1991 CLC 1146 Rel.
Leave to appear not filed within 10-days – In application for condonation of delay contended that the applicant does not subscribe to newspaper “Morning News” in which notice appeared – No ground for condonation of delay.
PLD 1994 Kar. 303.
PLD 1990 SC 497.
1993 MLD 54
1988 CLC 1068
1991 CLC 1146 Rel.
Vires of Rule-8.
It neither contravenes provisions of CPC nor is repugnant to provisions of the Ord.1979 – As per section 129 of CPC High Court can amend Ist Schedule of CPC likewise exercise of rule making authority U/S 15 of Ord. 1979 can arguably said to have been invoked by Govt. However, precusions envisaged in CPC would equally apply for example, a female member even if adult cannot be effectively served nor can rule 15 of Order V CPC be unceremoniously be resorted to.
PLD 1994 Kar. 275 H.N (c).
It neither contravenes provisions of CPC nor is repugnant to provisions of the Ord.1979 – As per section 129 of CPC High Court can amend Ist Schedule of CPC likewise exercise of rule making authority U/S 15 of Ord. 1979 can arguably said to have been invoked by Govt. However, precusions envisaged in CPC would equally apply for example, a female member even if adult cannot be effectively served nor can rule 15 of Order V CPC be unceremoniously be resorted to.
PLD 1994 Kar. 275 H.N (c).
RULE-8; O-5, R-20 CPC
Publication according to requirements of law would arise presumption of due service – such service to quality for necessary presumption requirement of adequacy of publication sufficient to carry knowledge to defendant should be met, if anot, such presumption would, subject to the facts give way.
PLD 1994 Kar. 275 H.N. (d).
Publication according to requirements of law would arise presumption of due service – such service to quality for necessary presumption requirement of adequacy of publication sufficient to carry knowledge to defendant should be met, if anot, such presumption would, subject to the facts give way.
PLD 1994 Kar. 275 H.N. (d).
RULE-8
If presumption element of service by publication was not lifted from O-5 R-20 CPC. Then rule-8 standing by itself would have implied effective personal knowledge through publication as well viz in cases where service in other modes could neither be shown nor presumed – Rule-8 enjoins not only effective personal service but also where service constructively was to be presumed in view of deeming effect in such rule as inferred from O-5 R-20 CPC – to ensure that constructive service in probability sufficient to bring necessary knowledge.
PLD 1994 Kar. 275 H.N. (e).
If presumption element of service by publication was not lifted from O-5 R-20 CPC. Then rule-8 standing by itself would have implied effective personal knowledge through publication as well viz in cases where service in other modes could neither be shown nor presumed – Rule-8 enjoins not only effective personal service but also where service constructively was to be presumed in view of deeming effect in such rule as inferred from O-5 R-20 CPC – to ensure that constructive service in probability sufficient to bring necessary knowledge.
PLD 1994 Kar. 275 H.N. (e).
RULE-8
Non appearance inspite of process by three modes and if positive repots of service through bailiff or by registered post was not received at least one more attempt should be made through the said two modes and upon failure of such repeat service matter be placed in court for necessary orders – object is not to negate effect of publication which should continue, but merely to forestall possible controversies in case deeming effect if publication subsequently is effaced – such made would apply prospectively there need i.e. no repetition of publication unless first publication was faulty.
PLD 1994 Kar.275 H.N.(g)
Non appearance inspite of process by three modes and if positive repots of service through bailiff or by registered post was not received at least one more attempt should be made through the said two modes and upon failure of such repeat service matter be placed in court for necessary orders – object is not to negate effect of publication which should continue, but merely to forestall possible controversies in case deeming effect if publication subsequently is effaced – such made would apply prospectively there need i.e. no repetition of publication unless first publication was faulty.
PLD 1994 Kar.275 H.N.(g)
RULE-8
Process not sent by registered post – not full compliance of Rule-8 exparte decree set aside.
1991 MLD 2037.
Process not sent by registered post – not full compliance of Rule-8 exparte decree set aside.
1991 MLD 2037.
RULE 8
Regarding service provisions of CPC fade into insignificance – publication on higher pedestal as good as personal service.
1991 MLD 1803
Regarding service provisions of CPC fade into insignificance – publication on higher pedestal as good as personal service.
1991 MLD 1803
RULE 8
Any on of three modes good service – copy of plaint not necessary with publication.
1990 MLD 1792
Any on of three modes good service – copy of plaint not necessary with publication.
1990 MLD 1792
Rule 8 As Amended by SRO 71(i)/88 dated 31.01.1988.
Ord.37, Rule 2 Appendix B Form IV fact that copy of plaint cannot be closed with publication no effect on validity of service – any one mode good service.
PLD 1990 SC 497
1991 CLC 438 Kar.
Ord.37, Rule 2 Appendix B Form IV fact that copy of plaint cannot be closed with publication no effect on validity of service – any one mode good service.
PLD 1990 SC 497
1991 CLC 438 Kar.
RULE 8
Service of defendant by any of the three modes namely by registered A.D., through bailiff personally or by publication.
1991 MLD 1803 Kar.
(Provisions of CPC fade into insignificant also see PLD 1981 Rev.5 Pb).
1990 MLD 1792 Kar.
(In publication copy of plaint not necessary)
PLD 1990 SC 497
(In publication copy of plaint not necessary)
1989 MLD 995 Lah.
PLD 1987 Kar. 206.
Service of defendant by any of the three modes namely by registered A.D., through bailiff personally or by publication.
1991 MLD 1803 Kar.
(Provisions of CPC fade into insignificant also see PLD 1981 Rev.5 Pb).
1990 MLD 1792 Kar.
(In publication copy of plaint not necessary)
PLD 1990 SC 497
(In publication copy of plaint not necessary)
1989 MLD 995 Lah.
PLD 1987 Kar. 206.
AGAINST
1987 CLC 1002 Kar.
Mere denial not having read
publication, uncorroborated in any other manner cannot be given effect.1987 CLC 1002 Kar.
PLD 1989 Lah. 213.
Nothing in law that summon should be published in language known to defendant.
1988 CLC 1068 Kar.
Defendants
ordered to be served by three modes – process never sent through registered
post, no full compliance, such exparte decree rightly set aside.
1991 MLD 2037.
1991 MLD 2037.
10
days will not commence unless summon in proper form attached with plaint.
1988 CLC 292
1986 CLC 2236
P. 1986 Kar. 444
P. 1984 Kar. 252.
1984 CLC 374.
1988 CLC 292
1986 CLC 2236
P. 1986 Kar. 444
P. 1984 Kar. 252.
1984 CLC 374.
SECTION 7, R-8.
Summons through bailiff and registered A.D. sent with plaint – defendants could not be served – ultimately served by pasting a copy of notice at outer door – Held there was nothing to prevent defendants to make application for leave.
Failure to issue summons strictly as per Form IV Appendix B CPC – notice not deemed effected.
Pesh. 1990.
BANKING TRIBUNALS
ORDINANCE, 1984Summons through bailiff and registered A.D. sent with plaint – defendants could not be served – ultimately served by pasting a copy of notice at outer door – Held there was nothing to prevent defendants to make application for leave.
Failure to issue summons strictly as per Form IV Appendix B CPC – notice not deemed effected.
Pesh. 1990.
SECTION 2(c) (e)
Customer – beneficiary, surety, indemnifier, lifting corporate veil.
PLD 1990 Kar. 186
PLD 1971 SC 585
PLD 1983 SC 457
PLD 1985 SC 97
PLD 1990 Kar. 186/198
NLR 1979 CIVIL 544
NLR 1984 SCJ 403
NLR 1989 A.C. 195
1990 MLD 2226.
SECTION 2(c)
Jurisdiction – Contract Act Sec.62 NOVATION in case of novation Tribunal required to look into new agreement to determine whether it is “finance”.
1994 CLC 2272
1990 MLD 1842
1990 MLD 857
SECTION 5 & 2 (c).
Suit for damages filed by customer cannot be consolidated with recovery suit filed by Bank – distinct scope of Ordinance 1979 and Ordinance 1984 having exclusive jurisdiction.
PLD 1995 Lah. 360.
SECTION 5(i) (d)
Applicability of CPC.
PLD 1994 Kar. 275
PLD 1993 Lah. 706 H.N.(k).
Tribunal decreed Bank’s suit, declined claim for mark up. Claim not contrary to State Bank’s Circular B.C.D.31 dated 24.12.1980 – not denial of borrowers as to mark up. Tribunal’s observation that when payment was not forthcoming Bank should have filed suit immediately did not justify rejection of claim.
1994 CLC 1 Kar.
Vires of Sections 6 & 9 – B.T.O. 1984 covered by Article 270-A of constitution – for striking of provisions of B.T.O. Article 270-A itself would have to be struck down – B.T.O. intra vires of Constitution – NOT CONTRARY TO FUNDAMENTAL RIGHTS GUARANTEED IN CONSTITUTION.
PLD 1995 Kar. 409
Interlocutory orders not appealable – no writ.
PLD 1982 Lah. 353.
(XXIX OF 1947)
Contract Act (IX of 1872) Sect. 56
Constitution Art. 185(3).
- “Serious and bonafide dispute” in P.L.A will depend on the merits of each case.
- Increase in custom duty & sales tax not valid ground for grant of leave.
Pakland Cement Vs. Citibank,
2001 SCMR 1341.
Section-5 Condonation not applicable.
Interest granted from the date of filing of suit and not from the disbursement. Up held.
2004 CLD 968.
PLD 1994 Kar. 275
PLD 1993 Lah. 706 H.N.(k).
SECTION 6(4)
Rejection of plea – Contract Act 2(h) Bank failing to advance entire loan – plea that defendant could not be compelled to repay not justified – covenants conditional – performance of one defendant upon performance of other.
1993 SCMR 441 (d).
Rejection of plea – Contract Act 2(h) Bank failing to advance entire loan – plea that defendant could not be compelled to repay not justified – covenants conditional – performance of one defendant upon performance of other.
1993 SCMR 441 (d).
Total
sanctioned loan not disbursed – interest on entire amount disallowed.
1991 CLC 140 Lah.
SECTION 6 & 9 1991 CLC 140 Lah.
Tribunal decreed Bank’s suit, declined claim for mark up. Claim not contrary to State Bank’s Circular B.C.D.31 dated 24.12.1980 – not denial of borrowers as to mark up. Tribunal’s observation that when payment was not forthcoming Bank should have filed suit immediately did not justify rejection of claim.
1994 CLC 1 Kar.
Vires of Sections 6 & 9 – B.T.O. 1984 covered by Article 270-A of constitution – for striking of provisions of B.T.O. Article 270-A itself would have to be struck down – B.T.O. intra vires of Constitution – NOT CONTRARY TO FUNDAMENTAL RIGHTS GUARANTEED IN CONSTITUTION.
PLD 1995 Kar. 409
Art.270-A
inserted w.e.f. 30.12.1985 – all laws made between 05.07.1977 to 13.12.1985
affirmed and validated – could not be called in question in any court – Banking
Ordinance, 1984, thus, protected under Constitution – Hence, no question to
Sections 6&9 of the Ordinance, 1984.
1995 MLD 1546
ALSO SEE 1989 MLD 1058
PLD 1982 Kar. 513
PLD 1989 Lah. 69
PLD 1995 Lah. 6
1989 CLC 524
1995 MLD 1546
ALSO SEE 1989 MLD 1058
PLD 1982 Kar. 513
PLD 1989 Lah. 69
PLD 1995 Lah. 6
1989 CLC 524
Assistant
Commissioner (Collector) directed to pay amount in question as arrears of land
revenue in installments – payment of whole amount by Banking Tribunal – Pleas
of Resjudicata not available in the suit filed for recovery.
1995 MLD 1546
1995 MLD 1546
SECTION-7
Surety cannot be prosecuted under this section which is applicable only to loanee.
1995 CLC 973
Surety cannot be prosecuted under this section which is applicable only to loanee.
1995 CLC 973
SECTION
Contractual obligation. Charges/costs expenses & commission sustained or incurred b y and provided in the contract – Bank was within its competence to charge the same.
1992 CLC 1906 para 11 at 1912.
Contractual obligation. Charges/costs expenses & commission sustained or incurred b y and provided in the contract – Bank was within its competence to charge the same.
1992 CLC 1906 para 11 at 1912.
SECTION 9
Alternate adequate remedy – constitutional petition not substitute of appeal or revision – Condition of deposit of the decretal amount for filing appeal could not be avoided.
PLD 1995 Kar. 409
Alternate adequate remedy – constitutional petition not substitute of appeal or revision – Condition of deposit of the decretal amount for filing appeal could not be avoided.
PLD 1995 Kar. 409
SECTION 9 & 10 APPEAL – WRIT JURISDICTION.
Interlocutory order – No remedy or revision provided – no writ where it will defeat legislative intent.
PLD 1994 Kar. 67
PLD 1995 Kar. 409
Interlocutory order – No remedy or revision provided – no writ where it will defeat legislative intent.
PLD 1994 Kar. 67
PLD 1995 Kar. 409
ALSO SEE WRIT JURISDICTION UNDER BANKING COMPANIES
(RECOVERY OF LOANS) ORDINANCE 1979 AS FOLLOWS:
(RECOVERY OF LOANS) ORDINANCE 1979 AS FOLLOWS:
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Provisions of appeal available not availed – not writ conditional order for leave to defend – could have been challenged in appropriate proceedings – no writ. Question of lack of jurisdiction not raised before appropriate forum – estopped to raise in writ.
1994 CLC 2150 Kar.
Provisions of appeal available not availed – not writ conditional order for leave to defend – could have been challenged in appropriate proceedings – no writ. Question of lack of jurisdiction not raised before appropriate forum – estopped to raise in writ.
1994 CLC 2150 Kar.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Writ – writ against order of conditional leave to defend. No appeal available. Writ competent if order arbitrary, fanciful, capricious expercise of discretion.
1983 CLC 2829 Lah.
Writ – writ against order of conditional leave to defend. No appeal available. Writ competent if order arbitrary, fanciful, capricious expercise of discretion.
1983 CLC 2829 Lah.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Validity of condition of deposit for granting leave challenged in writ – no valuation of mortgaged properties on record – writ converted into appeal and allowed to extent that he would deposit cash of specified amount in 20 days.
1994 SCMR 512.
Validity of condition of deposit for granting leave challenged in writ – no valuation of mortgaged properties on record – writ converted into appeal and allowed to extent that he would deposit cash of specified amount in 20 days.
1994 SCMR 512.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Conditional order for leave to defend directing deposit of amount to defend suit not appealable cannot be questioned in writ.
PLD 1982 Lah. 353.
SECTION 12 APPEAL;
7(2) O-37 R-2 CPC – WRIT JURISDICTIONConditional order for leave to defend directing deposit of amount to defend suit not appealable cannot be questioned in writ.
PLD 1982 Lah. 353.
Interlocutory orders not appealable – no writ.
PLD 1982 Lah. 353.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Granting of conditional or unconditional leave discretion of court to be exercised judicially not arbitrarily or capriciously or in a manner defeating ends of justice. No writ.
PLD 1985 Kar. 178.
Granting of conditional or unconditional leave discretion of court to be exercised judicially not arbitrarily or capriciously or in a manner defeating ends of justice. No writ.
PLD 1985 Kar. 178.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Order to deposit extra amount for granting leave not open to writ.
NLR 1982 Civil 315.
Order to deposit extra amount for granting leave not open to writ.
NLR 1982 Civil 315.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Constitutional jurisdiction in Banking matters not to be exercised in interlocutory matters, principles stated.
1986 MLD 2941.
Constitutional jurisdiction in Banking matters not to be exercised in interlocutory matters, principles stated.
1986 MLD 2941.
SECTION 12 APPEAL; 7(2) O-37 R-2 CPC – WRIT JURISDICTION
Challenging condition of furnishing Bank Guarantee, writ not maintainable.
1989 CLC 1535.
Challenging condition of furnishing Bank Guarantee, writ not maintainable.
1989 CLC 1535.
SECTION 12 – WRIT MAINTAINABLE
Impugned order passed in excess of jurisdiction, arbitrary and flouting law, capricious to be interfered by H.C. in W.P.
NLD 1982 Civil 97
PLD 1989 Kar. 157
1982 CLC 2367
1982 CLC 1625
NLR 1982 Civil 1.
Impugned order passed in excess of jurisdiction, arbitrary and flouting law, capricious to be interfered by H.C. in W.P.
NLD 1982 Civil 97
PLD 1989 Kar. 157
1982 CLC 2367
1982 CLC 1625
NLR 1982 Civil 1.
SECTION 9(1) & 6(6) APPEAL
In order to appeal must deposit with Tribunal suit amount or decree amount – “shall” in 9(1) mandatory; Section 9(i) does not provide for any other sufficient security – Appeal whether on merits or on question of jurisdiction – entertainment only if decretal amount deposited.
PLD 1994 Pes. 233
1994 CLC 2292 Kar.
PLD 1995 Kar. 409.
In order to appeal must deposit with Tribunal suit amount or decree amount – “shall” in 9(1) mandatory; Section 9(i) does not provide for any other sufficient security – Appeal whether on merits or on question of jurisdiction – entertainment only if decretal amount deposited.
PLD 1994 Pes. 233
1994 CLC 2292 Kar.
PLD 1995 Kar. 409.
SECTION 10 (REVIEW)
Sec. 10 B.T.O. being similar to Sec.11 of the Banking Companies (Recovery of Loans) Ordinance, 1979, the Tribunal has the right to review its orders in view of PLD 1995 Kar. 577 which states, High Court, while acting as aSpecial Court
PLD 1995 Kar. 577.
Sec. 10 B.T.O. being similar to Sec.11 of the Banking Companies (Recovery of Loans) Ordinance, 1979, the Tribunal has the right to review its orders in view of PLD 1995 Kar. 577 which states, High Court, while acting as a
PLD 1995 Kar. 577.
SECTION 11 (4) LIQUIDATED DAMAGES – SECTION 74 CONTRACT ACT
Liquidated damages have to be proved – liquidated damages only follow up after passing of decree if and when decretal amount remained unsatisfied beyond 30 days. An application has to be made.
1993 MLD 1571 (b).
Liquidated damages have to be proved – liquidated damages only follow up after passing of decree if and when decretal amount remained unsatisfied beyond 30 days. An application has to be made.
1993 MLD 1571 (b).
BANKER & CUSTOMER
Mercantile Practice – Blank documents can be filled by creditor within reasonable time.
PLD 1989 Kar. 371.
Mercantile Practice – Blank documents can be filled by creditor within reasonable time.
PLD 1989 Kar. 371.
Filling
in of promissory notes valid.
PLD 1986 Kar.464
PLD 1990 Lah. 99
1989 CLC 700 Kar.
1987 CLC 288 Kar.
PLD 1986 Kar.464
PLD 1990 Lah. 99
1989 CLC 700 Kar.
1987 CLC 288 Kar.
O.1, R-10 CPC.
Manager at the time of deposit not necessary party – Bank will be responsible for deposit.
Misjoinder
Withholding documents by Bank – presumption would rise against Bank claim that customer deposited amounts in Bank – paying in slips signed by Manager – plea that manager alone was not authorized not available.
PLD 1994 Kar. 323.
Manager at the time of deposit not necessary party – Bank will be responsible for deposit.
Misjoinder
Withholding documents by Bank – presumption would rise against Bank claim that customer deposited amounts in Bank – paying in slips signed by Manager – plea that manager alone was not authorized not available.
PLD 1994 Kar. 323.
BANKERS BOOKS EVIDENCE ACT OF 1981
Statement of A/C – presumption of correctness – In recovery of loan cases based on statement of accounts maintained by banks to which presumption of correctness was attached under Banker’s Books Evidence Act. Defendant seeking leave must disclose plausible defence or show substantial question of fact or law.
1992 CLC 1906 Pesh.
Statement of A/C – presumption of correctness – In recovery of loan cases based on statement of accounts maintained by banks to which presumption of correctness was attached under Banker’s Books Evidence Act. Defendant seeking leave must disclose plausible defence or show substantial question of fact or law.
1992 CLC 1906 Pesh.
Certified
copy of the Bankers Books dispenses with production of original books of
accounts and is admissible in evidence.
PLD 1983 Kar. 431.
PLD 1983 Kar. 431.
Certified
copy of entry in a Banker’s Book can be received in legal proceedings as
evidence of existence of such entry like the original one.
1983 CLC 1297
1983 CLC 1297
Entry
alone is not sufficient to charge with liability without corroboration.
PLD 1966 SC 684
PLD 1972 Lah. 311
PLD 1985 Lah. 89
CAPITAL ISSUES (CONTINUANCE OF
CONTROL) ACTPLD 1966 SC 684
PLD 1972 Lah. 311
PLD 1985 Lah. 89
(XXIX OF 1947)
SECTION 3(4) & 6
Legality or orders issued and passed by Federal Govt. in respect of issue of right shares could be scrutinized and examined by High Court in writ jurisdiction to ascertain validity of such orders on the touchstone of guidelines issue by the Govt. under Section 3(4) of the Act.
1995 MLD 1950 (Lah.)
Legality or orders issued and passed by Federal Govt. in respect of issue of right shares could be scrutinized and examined by High Court in writ jurisdiction to ascertain validity of such orders on the touchstone of guidelines issue by the Govt. under Section 3(4) of the Act.
1995 MLD 1950 (Lah.)
OFFENCES IN RESPECT OF BANKS (SPECIAL COURTS) ORDINANCE, 1984.
I.D.B.P. ORDINANCE, 1961.
THE BANKING COMPANIES (RECOVERY OF LOANS, ADVANCES, CREDITS AND
FINANCES) ACT 1997 (ACT XV OF 1997)
Section-7(2) Banking Act, 1997
C.P.C. primarily is procedural law though it has some substantive provisions. Section-7(2) makes C.P.C. available. “with respect to which procedure has not been provided for in this Act”.
C.P.C. primarily is procedural law though it has some substantive provisions. Section-7(2) makes C.P.C. available. “with respect to which procedure has not been provided for in this Act”.
Right
to claim review of any decision of a court of law, like the right to appeal is
a substantive right and not a mere matter of procedure – as such neither of
them is unless it has been conferred by law.
PLD 1970 S.C 1
1987 MLD 505
PLD 1965 Lah 183
PLD 1970 S.C 1
1987 MLD 505
PLD 1965 Lah 183
No
power or right vests in the court, tribunal or authority unless such power is
specifically given by the very statute to that creates it.
1985 CLD 2885
PLD 1981 S.C 94
PLD 1980 Lah 414
1990 MLD 909
PLD 1981 S.C 94
PLD 1980 Lah 414
1990 MLD 909
Power
of review must be conferred by law either specifically or by necessary
implication.
PLD 1970 S.C. 1273
Section 10.PLD 1970 S.C. 1273
Contract Act (IX of 1872) Sect. 56
Constitution Art. 185(3).
- “Serious and bonafide dispute” in P.L.A will depend on the merits of each case.
- Increase in custom duty & sales tax not valid ground for grant of leave.
Pakland Cement Vs. Citibank,
2001 SCMR 1341.
FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE (XLVI OF
2001).
Preamble: Limitation Act (IX of 1908)Section-5 Condonation not applicable.
(2004 CLD 817)
Preamble: Ordinance having no retrospective applicability-could not be used to attach property transferred.
Preamble: Ordinance having no retrospective applicability-could not be used to attach property transferred.
2004 CLD 1600 (Buttar & Mazammal)
Preamble: Ordinance not retrospective in operation.
Preamble: Ordinance not retrospective in operation.
2004 CLD 1600
Preamble: Section-10 Order-7 Rule-11 CPC.
Preamble: Section-10 Order-7 Rule-11 CPC.
Question
of rejection of plaint for lack of jurisdiction cannot be raised until P.L.A is
decided and leave be obtained.
2004 CLD 726
Sections-2 (A) & 9.
Underwriting Agreement-Underwriting not covered under the definition of Finance-recovery suit converted into ordinary civil suit.
Underwriting Agreement-Underwriting not covered under the definition of Finance-recovery suit converted into ordinary civil suit.
2004 CLD 689
NBP VS. S.G.Fibre.
2000 YLR 2407
Avari Hotels vs. I.CP.
2003 CLD 363
Bank Alfalah vs. Iftikhar A. Malik.
NBP VS. S.G.Fibre.
2000 YLR 2407
Avari Hotels vs. I.CP.
2003 CLD 363
Bank Alfalah vs. Iftikhar A. Malik.
Amount
of liability has to be legally determined first either by the Banking Court
PLD 2004 Kar. 638
Aasim Textile v. NAB.
PLD 2004 Kar. 638
Aasim Textile v. NAB.
Section-5
Cases finally decided under BTO, 1984- part & closed transactions.
2004 PLD 1146
2004 CLD 1589
2004 CLD 1557
2004 CLD 87
Cases finally decided under BTO, 1984- part & closed transactions.
2004 PLD 1146
2004 CLD 1589
2004 CLD 1557
2004 CLD 87
Section-7
No further mark up.
2004 PLD 953
2004 CLD 1150
2004 CLD 927
No further mark up.
2004 PLD 953
2004 CLD 1150
2004 CLD 927
Section-7.
No liquidated damages.
2004 PLD 927,1150’956
005 CLD 1543
2005 CLD 1588
2004 CLD 1571’1563
No liquidated damages.
2004 PLD 927,1150’956
005 CLD 1543
2005 CLD 1588
2004 CLD 1571’1563
Section-7.
Certain amounts deposited by the defendant which had not been created into account series question of law and fact raised- Leave to be granted.
2000 CLD 1561
Section-7-3(2).Certain amounts deposited by the defendant which had not been created into account series question of law and fact raised- Leave to be granted.
2000 CLD 1561
Interest granted from the date of filing of suit and not from the disbursement. Up held.
2004 CLD 968.
Section-7 & 9.
Limitation Act (ix) of 1908.
Void order- Limitation would run from the date of knowledge and aggrieved party should approach competent forum for setting aside.
PLD 1997 S.C 397
2004 CLD 144
Limitation Act (ix) of 1908.
Void order- Limitation would run from the date of knowledge and aggrieved party should approach competent forum for setting aside.
PLD 1997 S.C 397
2004 CLD 144
Section-7 & 10.
No dismissal of suit for non-prosecution on the date of arguments on the P.L.A.
2004 CLD 963
2004 CLD 1609
U.B.L v. Khawaja Radio House.
No dismissal of suit for non-prosecution on the date of arguments on the P.L.A.
2004 CLD 963
2004 CLD 1609
U.B.L v. Khawaja Radio House.
Sections-7,10 & 13.
“Judgment not a speaking judgment as a “judicial order” set aside.
2004 CLD 811
“Judgment not a speaking judgment as a “judicial order” set aside.
2004 CLD 811
Section-9
Riba Interest Article-203-G. Constitution High Court had no jurisdiction to determine validity of charging of interest.
2004 CLD 947
Riba Interest Article-203-G. Constitution High Court had no jurisdiction to determine validity of charging of interest.
2004 CLD 947
Credit Card Facility.
Services rendered by a bank dismissed.
2004 CLD 1247
Services rendered by a bank dismissed.
2004 CLD 1247
Punjab
Small Industries Corporation Article falls under “Banking Company” as well as
finance Institution.
2004 CLD 1424
2005 CLD 1790
2004 CLD 1424
2005 CLD 1790
Section-12(2) C.P.C. Not applicable.
Dissenting 2000 MLD 421
2004 CLD 279
2004 CLD 1573
Dissenties 2005 CLD 438.
Dissenting 2000 MLD 421
2004 CLD 279
2004 CLD 1573
Dissenties 2005 CLD 438.
Appeal
against dismissal of 12(2) CPC not competent.
2004 CLD 748.
2004 CLD 748.
Territorial
Jurisdiction
Section-20 of C.P.C applies.
2004 CLD 1266
Also 2004 CLD 1465.
Section-20 of C.P.C applies.
2004 CLD 1266
Also 2004 CLD 1465.
Section-9 Contract Act Section-127
Guarantor for original loan, Guarantor having no nexus with subsequent loan-no liable.
2004 CLD 1472
Guarantor for original loan, Guarantor having no nexus with subsequent loan-no liable.
2004 CLD 1472
Guarantor even if employee is liable.
2004 CLD 1289
2004 CLD 1289
Section-9 No
mark on mark up or beyond agreed period.
2005 CLD 444
2004 CLD 1289
H.B.Z v. Orient Rice Mills
2004 CLD 889
Pak Green Acres v. U.B.L
2005 CLD 581.
2005 CLD 444
2004 CLD 1289
H.B.Z v. Orient Rice Mills
2004 CLD 889
Pak Green Acres v. U.B.L
2005 CLD 581.
Service
fee by Credit Card Cos. not an interest- card holder agreed to service fee-
Legal.
2004 CLD 1247
2004 CLD 1247
Section-9 & 4 CPC Order-32.
Even if no PLA filed, suit to be decided after considering the plaint and the documents relied upon.
2004 CLD 587.
Even if no PLA filed, suit to be decided after considering the plaint and the documents relied upon.
2004 CLD 587.
Section 9 & 10.
Disputes between two groups of the shareholders of the borrowing company in civil court and before Companies Judge have to effect and the PLA was rejected- Appeal dismissed.
2004 CLD 1620
S.A Hameed v. A.B.L.
Disputes between two groups of the shareholders of the borrowing company in civil court and before Companies Judge have to effect and the PLA was rejected- Appeal dismissed.
2004 CLD 1620
S.A Hameed v. A.B.L.
Section 9 & 10.
Even if the Bank had shown the amount as bad debt in annual report only for the purpose of accounting- the loan was still recoverable.
2004 CLD 1266.
Even if the Bank had shown the amount as bad debt in annual report only for the purpose of accounting- the loan was still recoverable.
2004 CLD 1266.
Section 9,15,21 Specific Relief Act, Section-42 & 54.
Suit for declaration, injunction and rendition of accounts- Bank’s statement of A/C not conclusive as cyclostyle document. Bank had to justify by independent evidence entries in statement of A/C.
2004 CLD 808.
Suit for declaration, injunction and rendition of accounts- Bank’s statement of A/C not conclusive as cyclostyle document. Bank had to justify by independent evidence entries in statement of A/C.
2004 CLD 808.
Suit
not “supported by” statement of
A/D could not proceed.
2004 CLD 587
2004 CLD 587
Section 9(3).
Service only by publication- by any one of the modes is sufficient service.
PLD 1990 S.C.497
(Ahmad Antoes Case referred)
2004 CLD 1555, 771.
Service only by publication- by any one of the modes is sufficient service.
PLD 1990 S.C.497
(Ahmad Antoes Case referred)
2004 CLD 1555, 771.
Amendment
in PLA- to the within the corners of material appended with PLA-Discretion of
Court.
2004 SCMR 111
2004 SCMR 111
Leave to Defend
Requisite raise various questions of law & fact.
Plausible defense-leave could be granted.
1986 1086 Kar.
Requisite raise various questions of law & fact.
Plausible defense-leave could be granted.
1986 1086 Kar.
If
he could raise good defense or could raise a triable issue or disclose such
facts which would be deemed to be sufficient to entitle him to defend.
1987 CLD 288.
1987 CLD 288.
The
defense raised for leave to defend should be one likely to succeed.
PLD 1987 Lah 290.
PLD 1987 Lah 290.
Section-10 Contract Act- Section-7,23 & 74.
Additional lease rental & liquidated damages beyond contract against public policy
2004 CLD 1213
Additional lease rental & liquidated damages beyond contract against public policy
2004 CLD 1213
Conditional
leave to PLA on deposit of bank guarantee held not unable.
2004 CLD 532
2004 CLD 532
Section-10
Non-filing of amended application for leave to defend- PLA rejected.
2004 CLD 716
ABL vs. Mohib.
Non-filing of amended application for leave to defend- PLA rejected.
2004 CLD 716
ABL vs. Mohib.
Section-10
Interim application for leave to defend.
Filing of detailed leave application cannot be filed after expiry of 21-days.
2004 CLD 1227
Interim application for leave to defend.
Filing of detailed leave application cannot be filed after expiry of 21-days.
2004 CLD 1227
Section-10
Leave to defend - serious & bonafide defence- Bank had to provide guarantee and L/C to enableCo. to get project
from Wapda. Bank failed to provide-Co. on this ground denied liability to pay
claim of Bank. It was a serious & bonafide defence.
2004 CLD 1181
Leave to defend - serious & bonafide defence- Bank had to provide guarantee and L/C to enable
2004 CLD 1181
Section-10
Any concession made by the liquidators not binding on guarantors who have to independently show that the Bank did not have any right against them.
2004 CLD 1181
Any concession made by the liquidators not binding on guarantors who have to independently show that the Bank did not have any right against them.
2004 CLD 1181
Section-10
Suit for rendition of accounts against Bank- leave granted- issued & have to be framed.
2004 CLD 821
Section-10,9(3)
Service to be computed from first service.
2004 CLD 1227
1999 SCMR 2353
Section-12,9(3)
Defect in any one of the process of serving. No reliance could be placed on the process.
2004 CLD 771(a)
Service by any mode is a good service.
2004 CLD 393
Section-17
Registration Act.
If guarantee is admitted personal guarantee need not be witnesses or registers.
2004 CLD 1289
Mortgage Deed has to be properly attested.
2004 CLD 1289
Unregistered Mortgage Deed dismissed.
2004 CLD 881
Proclamation must be within the approval of the Court- otherwise all subsequent proceedings are nullity.
2004 CLD 1616
Section-22
No review, revision or appeal against rejected of PLA
2004 CLD 1084
Section-2(b)
There is no difference between the words “suit” and “case”.
2007 CLD 69(e)
Writ – maintainable withBanking Court
2007 CLD 69(d)
2007 CLD 1352
Bank Guarantee letter of credit- Beneficiary of the letter of credit or a bank guarantee not a customer even if connected with “finance” in some way could neither sue nor be sued.
(Proctor & Gamble vs. Bank Alfalah)
2007 CLD 1532 ©
Tort suit for recovery of damages for malicious prosecution against bank-plaintiffs only successors not borrowers-plaint returned under Order-7Rule-10 CPC.
(Manzoor A. Piracha vs. HBL)
2007 CLD 571
Cost of funds is from the date of default.
2007 CLD 1639
Banking Ordinance, 2001 does not exclude or override the Partnership Act unless there is specific provision to contrary.
2007 CLD 501
Mark up accruing under the fresh finance agreement was claimed which had accrued during the default period during which Bank exercised forbearance to sue- Such mark up constituted mark up on mark up.
Saudi Pak vs. Lucky Textile
2007 CLD 1005(b)
Detection- requirement of Section-51 CPC should be fulfilled in execution of decree.
2007 C LD 964
No mark up beyond contract period.
2007 CLD 1374(b)
2007 CLD 435 (a)
Suit without statement of A/C not competent plaint liable to be rejected u/s 9. (UCP 500) Uniform Customs of Letters of Credit.
2007 CLD 320(b)
REVIEW
Power of review or revision is a substantive right which cannot be exercised without conferment of such jurisdiction by the statute itself- such powers can only be exercised by a court, tribunal or authority when that power is granted by the very statute that created it.
Shah Dewana vs. HBL
PLD 1949 Lahore 301
PLD 1970 Dacca 693
PLD 1966 Lahore 850
Distinguished PLD 1980 Lahore 441
PLD 1970 SC 1 referred.
Powers of Review, if not available to a Court or authority under relevant law, could not be exercised as an inherent power under law.
Mian Muhammad Aslam Shah Vs. Zahir Shah
2012 CLC 185 (Peshawar
1991 SCMR 1756- as to review under Ordnance, 1979
PLD 1994Karachi
1998 SCMR 1961
1982 CLC 1625Lahore
1987 MLD 186Karachi
On limitation of review application see 1995 SCMR 69
Article-173 of Limitation Act, 90-days.
Attaching certified copy with the application not necessary, 1989 MLD
1458. Also see Article-162
Section-27 of Banking Courts Act 1997 (Finality of Orders)
Section-21 Appeal.
Section-21(5)- No appeal, review or remission shall lie against any
interlocutory order of theBanking
Court
subsection-6 of Section-18.
Review petition time barred. 90-days limitation.
No application of condonation of delay.
Order-7 Rule-11- Declaratory suit against Bank alleging that bank did
not disburse the amount as claimed by it, court without granting appeal
rejected plaint for not disclosing cause of actions- case remanded-Banking
Court
2005 CLD 1083
Compromise between bank and principal debtor – guarantor alleged that the guarantee should discharge in view of Section-135 of Contract Act- held- guarantor precluded from taking advantage of Section-135 in view of section-128 of Contract Act as the liability is co-extensive.
2005 CLD 1689
Cause of action subsisting not time barred.
2005 CLD 1705
Section-9 and Negotiable Instrument Act Section-20,118.
Bank documents – estopped from challenging legality.
2005 CLD 1237
Section-9. Suit for borrowers for declaration, rendition of accounts and permanent injunction – Suit by bank for recovery of loan – court through consolidated judgment decreed bank suit and dismissed borrowers. The suits were never consolidated. Held borrower’s suit shall to be decided separately.
2005 CLD 1486
Guarantor – Guarantee co-extensive.
2005 SCMR 72
2005 CLD 1680
Personal Guarantee – Suit directly against guarantor.
2005 CLD 1359
ADBP vs. Mehk Food
Doctrine of sub-judice as in Section-10 C.P.C.
2005 CLD 569
Section-9(4) – Pleas for consolidation of suits for damages with banking suit – not tenable.
2005 CLD 569
Person Guarantee.
2005 SCMR 72 = 2005 CLD 95
Reference to wrong provision of law in consequential.
2005 CLD 169
Suit for recovery of damages against bank and the insurance company involved in transaction – application under Order-7 Rule-11 CPC. Held insurance company not covered as “Borrower” and “indemnifier” in the sense. Banking Court had no jurisdiction.
2005 CLD 1781
Insurance clause was an independent and separate agreement – could not be made basis to restrict bank to recover the amount.
2005 CLD 643
Naeem Bhatti vs. HBL
Where immovable property was charged limitation under Article-132 (c) was 12-years otherwise it was 3-years.
ThePunjab
Debtors Protection Act, 1935 page 1491.
The offences in respect of Banks(Special Courts) Ordinance, 19 page 839.
The Usurons Loans Act, 1918 page 1381 Money Lenders 1960 at page 296.
Board Resolution Imperative.
2002 CLD 1431 (e)
Guarantor/Contract – Even where the contract becomes unenforceable against the principal debtor, the guarantor would still be liable for the surety he had executed unless there was any covenant to the contrary.
2002 CLD 550 S.C
Bar of unconditional withdrawal of suit. Order-23 Rule-1(1)(3). In Banking there will be a fresh cause of action upon breach of settlement by defendants.
2003 CLD 1468
Legal heirs of personal guarantor not liable – no coercive measures.
2005 CLD 668 Lah.
Guarantor – Principal debtor.
2005 CLD 1359 Lah.
ADBP vs. Malik Food.
2005 CLD 1680 Lah.
Where the Financial Institutions (Recovery of Finances) Ordinance, 2001 itself provides the specific procedure for resolving a proposition, under the settled principles of construction of statues, the provisions of general law not only to that extent, but even regarding the inherent jurisdiction of the court available under Civil Procedure Code, 1908 shall not be attracted.
Zarai Tariqiati Bank Limited through Branch Manager
Versus
Hassan Aftab Fatiana
2009 CLD 36
Lahore-High-Court-Lahore
Sect. 9 & 10
- The Ordinance 2001 obliges the parties to suit to identically plead/state the same nature of accounts or the heads of accounts.
- Defending customer is thus obliged to put in a definite response to the Banks’ accounting and has u/s 9(3) & 10(4) to compulsorily plead in leave petition his accounts as well as facts and amounts disputed by him as payable to plaintiff according to him.
- This Ord. 2001 has rationale of Schemetic disciplen – Banking suit is normally a suit on accounts which are duly ledgered and maintained compulsorily in the books of accounts under the prescribed principles/standards of accounting laws, rules & banking practices. Therefore, controversies are to be confined to the claimed and/or the disputed numbers, facts and reasons thereof.
Apollo Textile V. Soneri Bank
PLD 2012 S.C. 268
- Provisions of Ss. 9 & 10 are mandatory
- Appeal Sect. 22 R/W O.XLI, R 1 & Sect. 96
Provision regarding production of certified copy of the Decree Sheet along with memo of appeal to be mandatory and the appeal not accompanied by certified copy of the Decree Sheet not to be properly constituted and thus incompetent.
- Limitation in Supreme Court Appeal
Where appeal was allowed against the judgment or decree or a final order, filing of appeal within limitation was mandatory from the delivery of judgment and waiting for the grant of certified copy of the decree would not enlarge the limitation and in such a case non-filing of the decree would not be fatal to the appeal.
Apollo Textile V. Soneri Bank
PLD 2012 S.C. 268
S. 19(2)—Civil Procedure Code, (V of 1908), O.XXI, R.85—Execution decree-Modes of—Scope of—Question of—Whether provision of Order XXI, Rule 85, CPC apply to Banking Court in execution proceedings—Determination of—Three modes authorizing the Banking Court to execute its decree—First mode empowered a Banking Court to execute a decree by applying the provisions of CPC—Banking Court could execute a decree in manner provided under any other law for time being in force and third mode provides that at request of decree holder, Banking Court might adopt any procedure for execution of decree which it deems appropriate—In instant case, executing Court had adopted procedure for executing decree as provided under CPC, which fact was manifested from proclamation issued, at times by it—In clause 2 of proclamations that highest bidder would deposit 25% of auction money on conclusion of auction—Remaining 75% of auction money would be deposited in Court within 15 days from date of auction failing which executing Court could forfeit the amount of auction money deposited—Such conditions were borrowed from provisions of Order XXI, Rules 84, 85 and 86, CPC—Executing Court had chosen to adopt the procedure provided under CPC for executing the decree--Decree holder had ever approached the Banking Court to execute decree in manner other than one provided under CPC—Court in its discretion could extend time to appellant for depositing of balance amount of 75% of sale price after lapse of 15 days by virtue of S. 19(2) of Ordinance did not appeal to reason—Executing Court could adopt any procedure for executing decree under banking law but such power of the count had a rider that it would be subject to written request of decree-holder which request had never been made in the case in hand.
Mst. Nadia Malik Versus M/S Makki Chemical Industries Pvt. Ltd. Through Chief Executive and others.
PLJ 2012 SC 158
O.XXI, R.90
- Executing decree--Non-deposit of amount--Filing of objections to sale--Auction purchaser must reflect transparency--Objections raised by private respondents were not only based on quantum of reserved price but were based on issues which showed that sale/auction proceedings were being conducted in manner to extend favour of appellant--All provisions of law including provisions of Rule 90, CPC are to be read with exception--Any law without exception is a bad law--Object of deposit of 20% of amount by a person objecting to sale under Rule 90 of Order XXI, CPC is meant to ensure that objections were made by bona fide person and rule is not misused to frustrate the sale however, it could not be applied to advantage of appellant to have premium over his default.
Mst. Nadia Malik Versus M/S Makki Chemical Industries Pvt. Ltd. Through Chief Executive and others.
PLJ 2012 SC 158
Suit for rendition of accounts against Bank- leave granted- issued & have to be framed.
2004 CLD 821
Section-10,9(3)
Service to be computed from first service.
2004 CLD 1227
1999 SCMR 2353
Section-12,9(3)
Defect in any one of the process of serving. No reliance could be placed on the process.
2004 CLD 771(a)
Service by any mode is a good service.
2004 CLD 393
Section-17
Registration Act.
If guarantee is admitted personal guarantee need not be witnesses or registers.
2004 CLD 1289
Mortgage Deed has to be properly attested.
2004 CLD 1289
Unregistered Mortgage Deed dismissed.
2004 CLD 881
Proclamation must be within the approval of the Court- otherwise all subsequent proceedings are nullity.
2004 CLD 1616
Section-22
No review, revision or appeal against rejected of PLA
2004 CLD 1084
Section-2(b)
There is no difference between the words “suit” and “case”.
2007 CLD 69(e)
Writ – maintainable with
2007 CLD 69(d)
2007 CLD 1352
Bank Guarantee letter of credit- Beneficiary of the letter of credit or a bank guarantee not a customer even if connected with “finance” in some way could neither sue nor be sued.
(Proctor & Gamble vs. Bank Alfalah)
2007 CLD 1532 ©
Tort suit for recovery of damages for malicious prosecution against bank-plaintiffs only successors not borrowers-plaint returned under Order-7Rule-10 CPC.
(Manzoor A. Piracha vs. HBL)
2007 CLD 571
Cost of funds is from the date of default.
2007 CLD 1639
Banking Ordinance, 2001 does not exclude or override the Partnership Act unless there is specific provision to contrary.
2007 CLD 501
Mark up accruing under the fresh finance agreement was claimed which had accrued during the default period during which Bank exercised forbearance to sue- Such mark up constituted mark up on mark up.
Saudi Pak vs. Lucky Textile
2007 CLD 1005(b)
Detection- requirement of Section-51 CPC should be fulfilled in execution of decree.
2007 C LD 964
No mark up beyond contract period.
2007 CLD 1374(b)
2007 CLD 435 (a)
Suit without statement of A/C not competent plaint liable to be rejected u/s 9. (UCP 500) Uniform Customs of Letters of Credit.
2007 CLD 320(b)
REVIEW
Power of review or revision is a substantive right which cannot be exercised without conferment of such jurisdiction by the statute itself- such powers can only be exercised by a court, tribunal or authority when that power is granted by the very statute that created it.
Shah Dewana vs. HBL
PLD 1949 Lahore 301
PLD 1970 Dacca 693
PLD 1966 Lahore 850
Distinguished PLD 1980 Lahore 441
PLD 1970 SC 1 referred.
Powers of Review, if not available to a Court or authority under relevant law, could not be exercised as an inherent power under law.
Mian Muhammad Aslam Shah Vs. Zahir Shah
2012 CLC 185 (
1991 SCMR 1756- as to review under Ordnance, 1979
PLD 1994
1998 SCMR 1961
1982 CLC 1625
1987 MLD 186
On limitation of review application see 1995 SCMR 69
Article-173 of Limitation Act, 90-days.
Attaching certified copy with the application not necessary, 1989 MLD
1458. Also see Article-162
Section-27 of Banking Courts Act 1997 (Finality of Orders)
Section-21 Appeal.
Section-21(5)- No appeal, review or remission shall lie against any
interlocutory order of the
subsection-6 of Section-18.
Review petition time barred. 90-days limitation.
No application of condonation of delay.
Order-7 Rule-11- Declaratory suit against Bank alleging that bank did
not disburse the amount as claimed by it, court without granting appeal
rejected plaint for not disclosing cause of actions- case remanded-
Court
2005 CLD 1083
Compromise between bank and principal debtor – guarantor alleged that the guarantee should discharge in view of Section-135 of Contract Act- held- guarantor precluded from taking advantage of Section-135 in view of section-128 of Contract Act as the liability is co-extensive.
2005 CLD 1689
Cause of action subsisting not time barred.
2005 CLD 1705
Section-9 and Negotiable Instrument Act Section-20,118.
Bank documents – estopped from challenging legality.
2005 CLD 1237
Section-9. Suit for borrowers for declaration, rendition of accounts and permanent injunction – Suit by bank for recovery of loan – court through consolidated judgment decreed bank suit and dismissed borrowers. The suits were never consolidated. Held borrower’s suit shall to be decided separately.
2005 CLD 1486
Guarantor – Guarantee co-extensive.
2005 SCMR 72
2005 CLD 1680
Personal Guarantee – Suit directly against guarantor.
2005 CLD 1359
ADBP vs. Mehk Food
Doctrine of sub-judice as in Section-10 C.P.C.
2005 CLD 569
Section-9(4) – Pleas for consolidation of suits for damages with banking suit – not tenable.
2005 CLD 569
Person Guarantee.
2005 SCMR 72 = 2005 CLD 95
Reference to wrong provision of law in consequential.
2005 CLD 169
Suit for recovery of damages against bank and the insurance company involved in transaction – application under Order-7 Rule-11 CPC. Held insurance company not covered as “Borrower” and “indemnifier” in the sense. Banking Court had no jurisdiction.
2005 CLD 1781
Insurance clause was an independent and separate agreement – could not be made basis to restrict bank to recover the amount.
2005 CLD 643
Naeem Bhatti vs. HBL
Where immovable property was charged limitation under Article-132 (c) was 12-years otherwise it was 3-years.
The
The offences in respect of Banks(Special Courts) Ordinance, 19 page 839.
The Usurons Loans Act, 1918 page 1381 Money Lenders 1960 at page 296.
Board Resolution Imperative.
2002 CLD 1431 (e)
Guarantor/Contract – Even where the contract becomes unenforceable against the principal debtor, the guarantor would still be liable for the surety he had executed unless there was any covenant to the contrary.
2002 CLD 550 S.C
Bar of unconditional withdrawal of suit. Order-23 Rule-1(1)(3). In Banking there will be a fresh cause of action upon breach of settlement by defendants.
2003 CLD 1468
Legal heirs of personal guarantor not liable – no coercive measures.
2005 CLD 668 Lah.
Guarantor – Principal debtor.
2005 CLD 1359 Lah.
ADBP vs. Malik Food.
2005 CLD 1680 Lah.
Where the Financial Institutions (Recovery of Finances) Ordinance, 2001 itself provides the specific procedure for resolving a proposition, under the settled principles of construction of statues, the provisions of general law not only to that extent, but even regarding the inherent jurisdiction of the court available under Civil Procedure Code, 1908 shall not be attracted.
Zarai Tariqiati Bank Limited through Branch Manager
Versus
Hassan Aftab Fatiana
2009 CLD 36
Lahore-High-Court-Lahore
Sect. 9 & 10
- The Ordinance 2001 obliges the parties to suit to identically plead/state the same nature of accounts or the heads of accounts.
- Defending customer is thus obliged to put in a definite response to the Banks’ accounting and has u/s 9(3) & 10(4) to compulsorily plead in leave petition his accounts as well as facts and amounts disputed by him as payable to plaintiff according to him.
- This Ord. 2001 has rationale of Schemetic disciplen – Banking suit is normally a suit on accounts which are duly ledgered and maintained compulsorily in the books of accounts under the prescribed principles/standards of accounting laws, rules & banking practices. Therefore, controversies are to be confined to the claimed and/or the disputed numbers, facts and reasons thereof.
Apollo Textile V. Soneri Bank
PLD 2012 S.C. 268
- Provisions of Ss. 9 & 10 are mandatory
- Appeal Sect. 22 R/W O.XLI, R 1 & Sect. 96
Provision regarding production of certified copy of the Decree Sheet along with memo of appeal to be mandatory and the appeal not accompanied by certified copy of the Decree Sheet not to be properly constituted and thus incompetent.
- Limitation in Supreme Court Appeal
Where appeal was allowed against the judgment or decree or a final order, filing of appeal within limitation was mandatory from the delivery of judgment and waiting for the grant of certified copy of the decree would not enlarge the limitation and in such a case non-filing of the decree would not be fatal to the appeal.
Apollo Textile V. Soneri Bank
PLD 2012 S.C. 268
S. 19(2)—Civil Procedure Code, (V of 1908), O.XXI, R.85—Execution decree-Modes of—Scope of—Question of—Whether provision of Order XXI, Rule 85, CPC apply to Banking Court in execution proceedings—Determination of—Three modes authorizing the Banking Court to execute its decree—First mode empowered a Banking Court to execute a decree by applying the provisions of CPC—Banking Court could execute a decree in manner provided under any other law for time being in force and third mode provides that at request of decree holder, Banking Court might adopt any procedure for execution of decree which it deems appropriate—In instant case, executing Court had adopted procedure for executing decree as provided under CPC, which fact was manifested from proclamation issued, at times by it—In clause 2 of proclamations that highest bidder would deposit 25% of auction money on conclusion of auction—Remaining 75% of auction money would be deposited in Court within 15 days from date of auction failing which executing Court could forfeit the amount of auction money deposited—Such conditions were borrowed from provisions of Order XXI, Rules 84, 85 and 86, CPC—Executing Court had chosen to adopt the procedure provided under CPC for executing the decree--Decree holder had ever approached the Banking Court to execute decree in manner other than one provided under CPC—Court in its discretion could extend time to appellant for depositing of balance amount of 75% of sale price after lapse of 15 days by virtue of S. 19(2) of Ordinance did not appeal to reason—Executing Court could adopt any procedure for executing decree under banking law but such power of the count had a rider that it would be subject to written request of decree-holder which request had never been made in the case in hand.
Mst. Nadia Malik Versus M/S Makki Chemical Industries Pvt. Ltd. Through Chief Executive and others.
PLJ 2012 SC 158
O.XXI, R.90
- Executing decree--Non-deposit of amount--Filing of objections to sale--Auction purchaser must reflect transparency--Objections raised by private respondents were not only based on quantum of reserved price but were based on issues which showed that sale/auction proceedings were being conducted in manner to extend favour of appellant--All provisions of law including provisions of Rule 90, CPC are to be read with exception--Any law without exception is a bad law--Object of deposit of 20% of amount by a person objecting to sale under Rule 90 of Order XXI, CPC is meant to ensure that objections were made by bona fide person and rule is not misused to frustrate the sale however, it could not be applied to advantage of appellant to have premium over his default.
Mst. Nadia Malik Versus M/S Makki Chemical Industries Pvt. Ltd. Through Chief Executive and others.
PLJ 2012 SC 158
INTEREST= O-37 R-2 & 3 CPC; SECT.7(2) ORD.BANK 1979
- Act 2-A Constitution no bar on recovery of
interest.
- Act 2-A; 268(6), 203-G, 227(2) cannot be invoked by courts to make existing law as Islamic.
PLD 1989 Kar. 371
- Act 2-A; 268(6), 203-G, 227(2) cannot be invoked by courts to make existing law as Islamic.
PLD 1989 Kar. 371
- Recovery of interest not prohibited.
1994 SCMR 2287
1994 SCMR 2287
- Interest could be granted inspite of
provisions of Art. 2-A of Constitution – provisions of Ord. (XIX of 1979)
protected by Art. 270-A of constitution and interest though unIslamic could be
granted.
1992 CLC 1906 (DB)
PLD 1987 Kar. 296 (FB)
PLD 1987 Kar. 612
PLD 1992 FSC 1
1988 MLD 1058
1992 CLC 1906 (DB)
PLD 1987 Kar. 296 (FB)
PLD 1987 Kar. 612
PLD 1992 FSC 1
1988 MLD 1058
SECTION 9(1) BANKIGN TRIBUNAL ORD.84;
ART.203 F CONSTITUTION
ART.203 F CONSTITUTION
- Judgment of F.S.C. appealed and operation
suspended by S.C. High Court not competent to go into question.
PLD 1994 Pesh. 233
PLD 1994 Pesh. 233
© 2012 Punjab Judicial
Academy, Government of the Punjab
No comments:
Post a Comment