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Constitutional Petition No. D-1108 of 1981, decided on 19th September, 1984.

---Ss.2 (d)(f), 5 & 6--Constitution of Pakistan (1973), Art. 199--Recovery of amount paid by guarantor--Special Banking Court constitution of--Objection to--Jurisdiction of Special Banking Court- Objection of petitioner in respect of constitution of Special Banking Court having been overruled and declined to be constituted in accordance with law--Such Court, held, had jurisdiction to hear and adjudicate upon suit filed by guarantor/respondent for recovery of amount paid by guarantor on behalf of petitioner through Bank guarantees to Customs Authority regarding import of goods.

Usman Ghani Rashid for petitioner.

Aziz A. Munshi, Dy. A.-G. for the State.

Akram Zubairi for Respondent No.l.

Mamnoon Hassan for Respondent No.5.

Nemo for Respondents Nos. 2, 3, 4 and 6.

Date of hearing: 19th September, 1984.

By this constitutional petition under Article 9 of the Provisional Constitution Order, 1981 read with Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner prays for a declaration that the Special Court of Banking at Karachi constituted under the Banking Companies (Recovery of Loans) Ordinance 1979 (hereinafter called the Ordinance), presided over by Mr. Ahmad All U. Qureshi, is not properly constituted and, therefore, has no jurisdiction to proceed with the hearing of Suit No. 64 of 1979, and for a further declaration that the said Court should not have taken congnizance of the dispute raised in the suit as it is not covered by the provisions of the said Ordinance.

2. We have heard Mr. Usman Ghani 'Rashid learned counsel for the petitioner.

3. Now, so far as the first prayer is concerned this court by an elaborate judgment dated 8-5-1984, delivered in Constitution Petition No. D-91 of 1983, (Tajul Hasan Jafri v. Special Judge, Special Court.) of Banking Karachi and another) to which one of us namely Mr. Justice Naimuddin was a party; has held that the appointment of Mr. Ahmad Ali U. Qureshi, was valid and the judgments and/or orders passed by him are saved by the doctrine of de facto Judge, therefore, for the same reasons as given in the said judgment, the first declaration cannot be granted.

4. Now, so far as the second declaration is concerned it may be stated that respondent No.5 had given 11 bank guarantees for a total amount of Rs. 17,15,132.46 on behalf of the petitioner to Collector of Customs respondent No.3, who had allowed importation of the goods mentioned in the Schedule annexed to the petition temporarily without payment of customs duty and taxes due on them on the express condition that the goods shall be exported within six 'months from the date of the expiry of six months.

5. Thereafter, respondent No.3 enforced payment of the amount of the guarantees which respondent No.5 paid and thereafter filed a suit for recovery of Rs. 6,00,531.83 after adjusting certain amounts against the petitioner, the Customs Authorities and the Government of Pakistan.

6. The contention of Mr. Usman Ghani Rashid is that the Court has no jurisdiction to entertain such a suit. In this regard he pointed but that in paragraph 21 of the plaint respondent 5 has pleaded that if it is found that the recovery of Its. 17,15,132.43 made by defendant No.8 (respondent No. 3 to this petition) was illegal then defendants Nos. 2 to 4 (respondents 1 to 3 to this petition) are liable to refund the same. Mr. Rashid submits that this dispute is beyond the jurisdiction of respondent No.6. However, it is stated at the Bar by Mr. Mamnoon Hasan that the names of respondents Nos. 2 to 5 were struck out subsequently by the Special Court. This statement is not controverted by Mr. Usman Ghani Rashid and, therefore, .now it cannot be said that the Court has no jurisdiction to entertain such a suit. It is also stated at the Bar by Mr. Mamnoon that the suit has already been decreed against the petitioner by respondent No.6 as this Court did not grant injunction against the Special Court from proceeding with suit. This statement is also not controverted by Mr. Rashid. We enquired from him whether his client has filed any appeal against the same. In reply he stated that there is still time for filing appeal from the decree of the Special Court.

7. As regards the claim against .the petitioner in the suit filed by respondent No.5, it is not disputed that the guarantee given by respondent No.5 on behalf of the petitioner is covered by the term 'loan' as defined in section 2 (d) of the Ordinance. Therefore, so far as the claim in the suit against the petitioner is concerned, it cannot be said that the same was not within the cognizance of the Special Court. Accordingly, this is not a case where respondent No.6 proceeded with the suit without jurisdiction.

8. In any case, objection to jurisdiction of respondent No.6 could be taken by respondents Nos. 1 to 4 and not by the petitioner and the said respondents could not raise the objection after their names were struck out from the plaint.

9. As regards the merits of the claim in the suit if the petitioner is aggrieved by the judgment and decree of the Special Court he has remedy available to him by way of appeal under section 12 of axe Ordinance and he may avail of the same within the time allowed by the law.

10. We, therefore, find no substance in the contention of Mr. Usman Ghani Rashid and dismiss this petition, but in the circumstances of the case, we leave the parties to bear their own cost.

H . B . T .

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