02 November 2004	Tuesday	18 Ramazan 1425

KARACHI, Nov 1: A full bench of the Sindh High Court reserved order on Monday in an appeal challenging the validity of Section 9 of the Banking Tribunal Ordinance, 1984 , which requires an appellant against a recovery decree to deposit the entire decretal amount in the appellate court as a condition precedent.

The three-member bench, comprising Justices Sabihuddin Ahmed, Shabbir Ahmed and Wahid Bux Brohi, was assigned the appeal on a reference made by a division bench in view of divergent judgments rendered by superior courts.

An SHC division bench at Hyderabad declared the provision un-Islamic and unconstitutional in 1995. A Lahore High Court full bench held that the provision was a clog on the right of even of first appeal against a judicial pronouncement. It called for amendment in the law.

Appearing for the appellant, M/s R.B. Avari and Company, who had been asked by the banking tribunal to pay about Rs 8.58 million to the MCB in a recovery suit, Advocate Iqbal Kazi submitted that the provision was too harsh. It amounted to requiring a judgment-debtor to satisfy an impugned decree pending his appeal. He said the provision was violative of Articles 2-A, 4, 23,24 and 25 of the Constitution.

Appearing for the respondent bank, Advocate Rizwan Ahmed Siddiqui submitted that the high court judgments being relied upon by the appellant were either prior to the successive Supreme Court verdicts on the matter or were rendered in ignorance of the law declared by the apex court. He said the SC first upheld the constitutional validity of the provision as far back as 1996.

The court never departed from its view and in one of the subsequent rulings, it wondered why a defaulter found the mark- up and other provisions un-Islamic only at the time of repayment of a loan and not when he obtained it in full knowledge of the conditions attached.

The counsel said there was nothing un-Islamic, unconstitutional, unreasonable or harsh about the provision as an appellant was fully entitled to be repaid the decretal amount deposited by them if his appeal was allowed. The bench had issued notice to the attorney-general, who was represented by Deputy Attorney-General Nadeem Azhar.