| Citation(s) |
|---|
| 2018 SLG 270 2018 SLD 270 2018 PLD 77 |
Civil Appeal No. 1447 of 2016 Crl. Original Petition No. 220 of 2016 in Civil Appeal No. 1447 of 2016. Hearing Date : 2-1-2018. (Against the order Dated 16-2-2016 of the High Court of Sindh at Karachi passed in Spl. H.C.A. No. 2 of 2016).
Salman Aslam Butt, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A.No.1447 of 2016). Ms. Sofia Saeed, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants (in Cr.O.P. No.220 of 2016). Ms. Sofia Saeed, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for
Respondents (in C.A No.1447 of 2016). Salman Aslam Butt, Senior Advocate Supreme Court and Syed Rifaaat Hussain Shah, Advocate-on-Record for
Respondents (in Cr.O.P. No.220 of 2016).
Law:
Section:
(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) --- ----Ss. 7(1)(a), 7(2), 16(1) & 19(3)---Civil Procedure Code (V of 1908), S.151 & O. XXXIX, R. 6---Power of Banking Court to order interim sale---Scope---Goods pledged with the Bank, sale of---Question as to whether Banking Court had the power to direct interim sale of goods under the provisions of S. 16 of the Financial Institutions (Recovery of Finances) Ordinance; held, that in terms of S. 16(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the Banking Court did not have any power to sell goods which were pledged, hypothecated etc. prior to passing of the in a suit for recovery through sale filed by the financial institution---Qualified powers given to the Banking Court in such respect had been specifically mentioned in subsections (a) to (d) of S. 16(1) of the Ordinance which were essentially orders of restraint, attachment, transfer of possession and appointment of Receiver(s)---Legislature had permitted a financial institution to sell goods only after it had attained a decree in its favour, for total or partial satisfaction thereof section 19(3) of the Ordinance---Absence of the words sale or sell (or any variant thereof) in S.16(1) of the Ordinance coupled with the specificity of the types of orders that a Banking Court could pass under S. 16, spoke of the legislative intent; that sale shall not be permitted during the pendency of a suit for recovery by sale before the Banking Court---Furthermore when S.16 of the Ordinance had provided a comprehensive list of the specific types of orders (which did not include sale of property) that a Banking Court was empowered to pass with respect to property that was pledged, hypothecated etc. prior to the final of a suit for recovery by sale, there was no doubt that such provision was intended to be all-inclusive, leaving no room to read in the power to sell by means of applying the general provisions of the Civil Procedure Code, 1908 i.e. O. XXXIX R. 6 or the inherent powers under S. 151. (b) Interpretation of statutes--- ----Special law and general law---Principle of harmonious interpretation provided that…
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