The Banking Companies (Recovery of Loans) Ordinance, 1979 (Repealed)

Ordinance XIX of 1979

 

An Ordinance to repeat and with certain modifications, re‑Enact the Banking Companies (Recovery of Loans) Ordinance, 1978

[Gazette of Pakistan, Extraordinary, Part I, 27th March 1979]

No. F.17 (1)/79‑Pub.‑The following Ordinance made by the President is hereby published for general information:‑

Whereas it is expedient to repeal and, with certain modifications, re‑enact the Banking Companies (Recovery of Loans) Ordinance, 1978 (XXIII of 1978);

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in pursuance of the Proclamation of the fifth day of July 1977, read with the Laws (Conti, nuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance;

1. Short title, extent, application and commencement.‑(1) This Ordinance may be called the Banking Companies (Recovery of Loans) Ordinance, 1979.

(2) It extends to the whole of Pakistan.

(3) It applies to all Banking Companies except the Agricultural Develop­ment Bank of Pakistan to which only such of the provisions of this Ordinance shall apply, and from such date, as the Federal Government may, by notification in the official Gazette, specify.

(4) It shall come into force on such date, not being earlier than the first day of April 1979, as the Federal Government may, by notification in the official Gazette, appoint in this behalf.

2. Definitions.‑In this Ordinance, unless there is anything repugnant in the subject or context,‑–

(a) “banking company” means a bank as defined in the Banks (Nationali­sation) Act, 1974 (XIX of 1974), and includes, a banking company incorpo­rated outside Pakistan and transacting banking business in Pakistan and a financial institution which the Federal Government may, by notification in the official Gazette declare to be a banking company for the purposes of this Ordinance, but does not include the State Bank of Pakistan;

 

(b) “borrower” means a person who has obtained a loan from a bank­ing company and includes a surety or an indemnifier;

(c) “commencing day” means the day on which this Ordinance comes into force;

 

(d) “loan” includes,—

 

(i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking company to a borrower;

 

(ii) a guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower;

 

(iii) a benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted;

 

(iv) any amount due from any borrower to a banking company under a decree passed by a civil Court or an award given by an arbitrator; and

 

(v) any loan due from any borrower to a banking company which is the subject‑matter of any pending suit, appeal or revision before any Court;

 

(e) “rule” means rule made under this Ordinance; and

 

(f) “Special Court” means a Special Court established under

 

3. Ordinance not to derogate from other laws.‑The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.

4. Securing and repayment of loan due on the commencing day.‑(1) This section applies only to loans outstanding on the commencing day.

 

(2) A loan or part thereof outstanding on the commencing day shall, unless secured or repaid earlier, be secured and repaid as provided in this section notwithstanding the fact that the period of limitation within which a suit for the recovery of the loan or part thereof could have been or may be filed expired’ or expires on or after the first day of January 1974.

 

(3) Where, in the opinion of a banking company, a loan was, or has become or is discovered to be, unsecured or insufficiently secured, the borrower shall provide sufficient security therefor within one hundred and eighty days from the date of the notice served by the banking company on the borrower in any of the under‑mentioned modes; namely, by being,—

 

(a) given or tendered to him, or

 

(b) sent by registered post to his last known address on the record of the banking company, or

 

(c) affixed on a conspicuous part of his last address known to the bank­ing company, or

 

(d) published in a newspaper.

 

(4) Where a loan is not, or has not become, sufficiently secured under subsection (3), the banking company may apply, to the Special Court for attachment of so much of the property of the borrower as is equal in value, with reasonable margin, according to banking practice to the outstanding amount of the loan.

 

(5) Where the loan is, or has become, sufficiently secured under sub‑section (3), the outstanding amount shall, unless a different schedule of repayment is drawn by the bank, be repaid in accordance with the schedule of repayment agreed to at the time of sanction of the loan.

 

(6) The decision of the bank in fixing the schedule of repayment under subsection (5) shall not be questioned in any Court.

 

5. Establishment of Special Courts.‑(1) The Federal Government may by notification in the official Gazette, establish as many Special Courts as it considers necessary, and where it establishes more than one Special Court, shall specify in the notification the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance.

 

(2) A Special Court shall consist of a person who is a District Judge.

 

6. Powers of Special Court.‑(I) A Special Court shall,‑–

 

(a) in the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower or by a borrower. against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);

 

(b) in the exercise of .its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for that purpose, have the same powers as are vested in the Court of an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (Act V of 1898) Provided that, for the purpose of a ,trial before a Special Court, the provisions of Chapter XVIII of the said Code shall not apply Provided further that a Special Court shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorised in this behalf by the banking company in respect of which the offence was committed; and

 

(c) exercise and perform such other powers and functions as are; or may be, conferred upon, or assigned to it by or under this Ordinance.

 

(2) Notwithstanding anything contained in subsection (I), a Special Court shall have no civil jurisdiction in a case in which‑‑

 

(a) the outstanding amount of the loan does not exceed one lac rupees ;

 

(b) arbitration proceedings in ‑ respect of the loan are pending before an arbitrator; or

 

(c) the loan was sanctioned under an agreement between the banking company and the borrower which provides for a dispute between the parties being referred to arbitration.

 

(3) All proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code (Act XLV of 1860), and the Special Court shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1893).

 

(4) No Court other than a Special Court shall have or exercise .any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceedings, including proceedings following the filing of an arbitra­tion award and proceedings for the execution of a decree within the jurisdic­tion of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.

 

(5) In respect of proceedings transferred to a Special Court by virtue of subsection (4), the said Court shall not, by reason of the said transfer, be bound to recall and re‑hear any witness who has given evidence before the transfer and may act on the evidence already recorded by or produced before the Court from which the proceedings are so transferred.

 

6-A ———————–

 

7. Procedure of Special Court.‑(1) Suits before the Special Court shall come up for regular hearing as expeditiously as possible and, except in extra­ordinary circumstances and on grounds‑ to be recorded a Special Court shall not allow adjournment.

 

(2) In the exercise of its civil jurisdiction, the Special Court shall in all suits before it, including suits based on mortgages of all kinds on statement of accounts for recovery of money paid to, or to the order of, the defendant, follow the summary procedure provided for in Order XXXVII in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908).

 

8. Judgment and decree.‑(1) A Special Court shall, after the case has been heard, pronounce judgment as early as practicable, and on such judg­ment a decree shall follow forthwith.

 

(2) The decree shall provide for interest on the judgment debt from the date of decree till payment at the contracted rate or at the rate of two per cent. above the bank rate, whichever is the higher.

 

Explanation.‑In this subsection “bank rate” means the bank rate deter­mined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956).

 

(3) The Special Court shall, on the application of the decree‑holder forthwith order execution of the decree as arrears of land revenue or such other. manner as it may deem fit.

9. Provisions relating to certain offences.‑(1) Whoever dishonestly commits breach of the terms of letter of hypothecation or trust receipt or such other instrument or document executed by him whereby the possession of the property offered as security for the loan is not with the banking Company but is retained by or entrusted to him for the purpose of effecting sale and paying over the sale proceeds thereof, shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

 

(2) Whoever knowingly makes a false statement in an application for loan, or applies the amount of, the loan towards purposes other than those for which the loan is availed of by him, shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

 

(3) All offences under this Ordinance shall be bailable, non‑cognizable and compoundable.

 

(4) Where the person guilty of an offence under this Ordinance is a company or other body corporate, the Chief Executive by whatever name called, and every director, manager, secretary and other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

 

10‑ Application of fines.‑‑The Special Court imposing any fine under this Ordinance may direct that the whole, or a part thereof shall be applied in or towards,—

 

(a) payment of costs of the proceedings; and

 

(b) payment to a banking ,company of compensation for any loss caused by the offence.

 

11. Finality of orders.‑Subject to the provisions for appeal in section 12 ‘ no Court or other authority shall call or permit to be called in question any order, judgment or sentence of a Special Court or the legality or propriety of anything done or intended to be done by the Special Court under this Ordinance.

 

12. Appeals.‑(I) Any person aggrieved by any order, judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed;’

 

Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court.

 

(2) An appeal under subsection (1) shall be on any one of the following grounds, namely,—

 

(a) the decision being contrary to law or to some usage having the force of law, or

 

(b) the decision having failed to determine a material issue of law or usage having the force of law, or

 

(c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits.

 

(3) An appeal may be preferred under this section from a decision made ex parte.

 

(4) An appeal under this section shall be heard by a Bench of not less than two Judges.

 

(5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount.

 

13. Pending cases and appeals.‑Notwithstanding anything contained in section 12,‑–

 

(a) any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard, and shall be decided, by the High Court;

 

(b) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an order which disposes of the entire case shall continue to be heard, and shall be decided, by the Supreme Court or, as the case may be, the High Court;

 

(c) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an interlocutory order which does not dispose of the entire case shall stand transferred to the Special Court ; and

 

(d) any appeal on any of the grounds specified in subsection (2) of section 12 which is from an order which disposes of this entire case and which may be pending before a District Judge at the commencement of this Ordinance shall stand transferred to the High Court.

 

14. Indemnity.‑No suit, prosecution or other legal proceeding shall lie against the Federal Government or a Special Court or a banking company or any other person for anything which is in good faith done or intended to be done under this Ordinance or any rule made thereunder.

 

15. Power to make rules.‑The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

 

15-A————

 

16. Repeal.‑The Banking Companies (Recovery of Loans) Ordinance, 1978 (XXIII of 1978), is hereby repealed and shall be deemed never to have come into force.