Habib Bank Limited Versus Judge Banking Court Lahore

HABIB BANK LTD. through Regional Manager Auto Recovery--Petitioner

versus

LEARNED JUDGE BANKING COURT-IV, LAHORE and another--Respondents

W.P. No. 3592 of 2010, decided on 29.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Repossession of vehicle--Auto lease finance facility was obtained--Defaulted in payment of monthly installment--Suit for rendition of accounts was filed before Banking Court--Possession of the vehicle was handed over to respondent--Challenge to--Whereby bank had declined to waive of early settlement charges on auto finance account against full and final settlement after obtaining approval of banks competent authority and proceeded to deduct monthly installments upto from respondents account--No mention of amount paid or amount outstanding against him--Bank was withholding vehicle against a small amount which was outstanding which ultimately persuaded Banking Court while passing the order was not borne out from record of file nor the plea was taken by respondent in suit for rendition of accounts filed before Banking judge--Bank rightly repossessed the vehicle and action had illegally been set at naught by Banking Court--Petition was allowed.         [P. 264] A & B

Mr. Bilal Kashmiri, Advocate for Petitioner.

Mr. Shahid Ikraam Siddiqui, Advocate for Respondent No. 2.

Date of hearing: 7.9.2010.

Order

Petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 prays as under:

"that this petition may kindly be accepted and impugned order dated 18.02.2010 may kindly be set aside and Respondent No. 1 may kindly be directed to proceed with the matter expeditiously without unnecessary loss of time and time may be fixed for its earlier disposal in the interest of justice."

Any other appropriate relief that this honourable Court may deem proper may also be granted in the interest of justice."

2.  Briefly the facts of the case are that the Respondent No. 2 obtained auto lease finance facility of one Honda City EXIS amounting to Rs.8,30,500/- against securities. The respondent defaulted in payment of monthly installments and pursuant to clause 12 of the lease agreement the petitioner-bank took possession of the said motor vehicle. The Respondent No. 2 filed a suit for rendition of accounts and permanent injunction against the petitioner before the learned Banking Court-IV, Lahore. During the pendency of the PLA filed by the petitioner, learned Banking Court-IV, Lahore through the impugned order dated 18.02.2010 handed over the possession of the said vehicle to the Respondent No. 2 by relying on letter dated 25.07.2008

3.  Learned counsel for the petitioner contends that both the parties are bound by the terms of the lease agreement; that the Respondent No. 2 defaulted in payment of monthly installments and pursuant to Clause 12 of the lease agreement the petitioner-bank rightly took the possession of the vehicle; that the learned Judge Banking Court has illegally relied upon letter dated 25.07.2008 and granted possession of the said vehicle to the Respondent No. 2 through the impugned order which is not sustainable under law. Further that Respondent No. 2 is a defaulter of many banks including the petitioner-bank as per report of the Consumer Protection Department of the State Bank of Pakistan; that the Respondent No. 2 has also defaulted in payment of monthly installments of another auto lease finance facility for Suzuki Baleno Car obtained from the petitioner-bank.

4.  On the other hand, learned counsel for the Respondent No. 2 contends that the Respondent No. 2 has not defaulted in payment of monthly installments; that the petitioner-bank illegally took over the possession of the vehicle from the petitioner forcibly; that the Respondent No. 2 has paid major portion of his liability and only small amount is outstanding against him; that the learned Banking Court has rightly directed the petitioner bank to hand over the possession of the vehicle to the Respondent No. 2 through the impugned order.

5.  Arguments heard. Record perused. The learned Judge Banking Court through the impugned order dated 18.02.2010 has based his reasoning on the letter dated 27.07.2008 while directing the petitioner-bank to return the vehicle to the Respondent No. 2. Perusal of letter dated 25.07.2008 shows that the said letter is in response to the respondent's request to the petitioner-bank for waiving off the respondent's penalty for early settlement charges from the total amount of loan payable in respect of the leased vehicle.

6.  The learned Judge Banking Court while passing the impugned order has blatantly misconstrued the petitioner's reply dated 15.11.2008,  to  the  respondent's  request dated 25.07.2008, whereby the petitioner-bank had only declined to waive of early settlement charges on auto finance account against full and final settlement, after obtaining approval of the petitioner-bank's competent, authority, and proceeded to deduct the monthly installments upto the month of November 2008 from the respondent's Account No. 1019-05173869-03. There was no mention of the amount paid by the respondent or the amount outstanding against him in the said letter.

7.  So far as the respondent's contention before the learned Judge Banking Court that he had deposited an amount of Rs.4,57,311/- in lieu of the finance facility and the petitioner bank is withholding the vehicle against a small amount of Rs.23,670/82 which is outstanding against the respondent which ultimately persuaded the learned Judge Banking Court while passing the impugned order dated 18.02.2010 is not borne out from the record of the file nor the said plea was taken by the respondent in his suit for rendition of accounts filed before the learned Banking Judge, therefore, the petitioner-bank pursuant to clause 12 of the lease agreement rightly repossessed the vehicle and the petitioner's action has illegally been set at naught by the learned Judge Banking Court through the impugned order. This being so, this constitutional petition is allowed and the impugned order of the learned Judge Banking Court dated 18.02.2010 is set-aside. Moreover, the learned Judge Banking Court-IV, Lahore is directed to conclude the proceedings-expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order.

(R.A.)  Petition allowed