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Willful Default

 

1.               Offence of “willful default”[1] was introduced in the Financial Institutions (Recovery of Finances) Ordinance, 2001 (“FIO 2001”) by insertion of a new sub-Section (g) in Section 2 thereof pursuant to Section 2(d) of the Financial Institution (Recovery of Finances) (Amendment) Act, 2016 (“2016 Amendment”). 

 

2.               The “willful default” had been introduced to the FIO 2001 “…to facilitate recovery process of bank loans so that loan defaults and incidence of written off loans could be minimized…”[2].

 

3.               The text of Section 2(g) of the FIO 2001 is reproduced hereunder for reference:

 

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

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.

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(g)       “willful default” means

 

(i)              deliberate or intentional failure to repay any finance, loan, advance or any financial assistance received by any person from a financial institution after such payment has become due under the terms of any law or an agreement, rules or regulations issued by the State Bank of Pakistan;

 

(ii)            utilization of finance, loan, advance or financial assistance or a substantial part thereof, obtained by any person from a financial institution for a purpose other than that for which such finance, loan, advance or financial assistance had been obtained and payment in part or full not made to the financial institution; or

 

(iii)          removal, transfer, misappropriation or sale of any assets collateralized to secure a finance, loan, advance or financial assistance obtained from a financial institution without permission of such institution.”

 

4.               Whilst the arrangement between a financial institution and a borrower regarding lending/borrowing of finance is a civil matter, however, the offence of “willful default” has been made a criminal offence. This is apparent from Sections 20(6) to 20(9) of the FIO 2001, which were introduced therein through the 2016 Amendment.

 

5.               Section 2(g) of the FIO 2001 provides for “…three separate offences…”[3], which may occur and be tried simultaneously in same proceedings. Whilst the offence set out pursuant to sub-Section (g)(i) of Section 2 is subject to establishment of the borrower’s “default” vis-à-vis its repayment Obligations (as defined in Section 2(e) of the FIO 2001) towards the financial institution, the offences envisaged pursuant to sub-Sections (g)(ii) and (iii) do not demand or require any such establishment of default.

 

Section 2(g)(i)

 

6.               Section 2(g)(i) provides that an offence of “willful default” is a “deliberate or intentional failure to repay any finance…received by any person from a financial institution after such payment has become due under the terms of any law or an agreement, rules or regulations issued by the State Bank of Pakistan”. Emphasis is placed on the words “after such payment has become due”. “Due”, in this context, has been construed by the superior courts to entail “…a determination by a court of competent jurisdiction that the liability in respect of the amount claimed stands established in civil law. Any liability in criminal law must take a back seat till then”[4].

 

7.               An obvious question would arise here as to the stage at which it can be said that civil liability has been determined and any given sum of money is “due” (i.e., legally payable by the judgment debtor to the decree holder). In the context of the FIO 2001, the prevalent view of the superior courts is that “…the appellate procedure must conceivably be part of the determination of civil liability…”, which has been held to be based on two principles, these being (i) “…an appeal is a continuation of the original suit and opens up the case for rehearing on error and facts…”, and (ii) “…access to justice would mean an interwoven set of rights which includes a proper trial as well as an appellate procedure…”.

 

8.               In view of the above, before initiating criminal proceedings pursuant to Section 2 (g)(i) of the FIO 2001, it is mandatory that (i) a judgment and decree has been passed against the borrower by the Banking Court, and (ii) the borrower’s appeal pursuant to Section 22 of the FIO 2001 against the judgment and decree in question, if it has been preferred by the borrower/judgment debtor, has been decided.

 

9.               This was determined by the Honourable Lahore High Court in judgment titled “Misbah ud Din Zaigham and 3 others Versus Federal Investigation Agency and another” reported as 2021 CLD 906 (at paras 9-20). This judgment was upheld by the learned Division Bench in Intra Court Appeal No. 29984/2021 (Mrs. Shahnaz Umar etc. Versus Federal Investigation Agency etc.). The judgment passed in the foregoing appeal was challenged before the August Supreme Court and is pending.

 

Sections 2(g)(ii) and (iii)

 

10.            The two offences of “willful default” envisaged under Section 2(g)(ii) and (iii) “…are not dependent on the determination of the civil liability and can be investigated in terms of section 20(7) by the nominated agency…”.[5]  In other words, if a customer (i) utilizes the finance facility for a purpose other than for which such finance/loan was obtained (for e.g., working capital finance has been used for import or to pay-off a debt, etc.), or (ii) removes, transfers, misappropriates collateralized assets (i.e., pledged stock, hypothecated machinery or mortgaged property), the concerned financial institution may initiate criminal proceedings against such customer (including the company and its directors/shareholders) irrespective of whether or not (i) such customer has defaulted in repayment of its financial obligations (i.e., finance facility/loan), or (ii) even if such customer has defaulted, there is a recovery suit pending.  

 

11.            Along with the introduction of the offence of “willful default” in the Ordinance, certain new provisions were inserted which provided for the method of investigation into the offence of willful default. These provisions are Sections 20 (6) to (9) of the FIO 2001 and Rule 5 of the Financial Institutions (Recovery of Finances) Rules, 2018. 

 

12.            Section 20(6) provides that the Banking Court shall try the offence of “willful default”.

 

13.            Section 20(7) read with Rule 5 of the Financial Institutions (Recovery of Finances) Rules, 2018 (“2018 Rules”) provide that Federal Investigation Agency shall investigate the offence of “willful default”. Through Notification SRO 81(KE)/2018, the Federal Government has nominated “…Federal Investigation Agency (FIA) as investigating agency for wilful default in terms of Section 20(7)…”.  

 

Reading Section 20(7) and the foregoing notification with Section 20(6) gives out that FIA will investigate the offence of willful default upon a complaint filed by the concerned financial institution. After investigating, the FIA will submit its report (Section 173 of Code of Criminal Procedure, 1898 challan) with the Banking Court, who will then try the said offence.

 

14.            Sections 20(8) and (9) provide that the offence of “willful default” shall be non-bailable and provides for punishment of up to 7 years and/or with fine not exceeding the amount of default.

 

15.            Landmark judgments in respect of “willful default” are listed hereunder:

 

a)               2017 SCMR 1218 (Syed Mushahid Shah and others Versus Federal Investigation Agency and others).

 

b)              2019 CLD 375 (Full Bench) (Mian Ayaz Anwar and others Versus State Bank of Pakistan and others).

 

c)               2021 CLD 906 (Misbah ud Din Zaigham and 3 others Versus Federal Investigation Agency and others). This judgment has been upheld by the learned Division Bench in ICA No. 29984/2021. This is pending before the Honourable Supreme Court.  

 

16.            Upshot of the above discussion is provided hereunder:

 

a)               Offence of willful default under Section 2(g)(i) of the FIO 2001 (i.e., deliberately not repaying the debt) cannot be invoked by the financial institution against the customer until after the customer has exhausted his right of appeal provided under Section 22 of the FIO 2001, and subject to a condition that the appeal is dismissed.

 

b)              Offences of willful default under Section 2(g)(ii) of the FIO 2001 (i.e., utilizing of loan for a purpose other than for which the same was sanctioned), and 2(g)(iii) of the FIO 2001 (i.e., misappropriation/alienation of pledged/hypothecated/mortgaged property) can be invoked by the financial institution against the customer irrespective of whether or not the customer has defaulted in repaying the finance facility or pendency of any recovery suit.

 

c)               FIA is the agency that has been nominated by the Federal Government to investigate the offence of willful default, and Banking Court has been nominated to be the trial court in respect of willful default offences.  

 

[1] The offence of “willful default” envisaged by Section 5(r) of the National Accountability Ordinance, 1999 may, to a certain extent, be seen as similar to the “willful default” envisaged by Section 2(g)(i) of the FIO 2001.

[2] Statement of objects and reasons of the 2016 Amendment Bill, para 3.

[3]  2019 CLD 375, para 14.

[4] 2021 CLD 906, para 8.

[5] 2019 CLD 375, para 17

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