1999 PLP 1294 (CLC)

Vide this order I propose to dispose of the preliminary issue as regards jurisdiction which has been raised by Mr. Zubair Qureshi, learned counsel for defendant No.7. Mr. Zubair Qureshi contends that as defendant No.7 is a Bank i.e. National Bank of Pakistan and as the allegation against said defendant is that it had issued certain cheques in the plaintiffs' favour which were endorsed as good for payment but subsequently, dishonoured, therefore, the present matter should be treated as a Banking matter and accordingly placed before theHonourable Banking Judge of this Court for disposal according to law. On the other hand Mr. I.M. Vatel, learned counsel for the plaintiff has argued that this matter does not come within the mischief of the Banking Companies (Recovery of Loans, Advances, Credits and. Finances) Act, 1997 (hereinafter referred to a "Act" and hence should proceed as an ordinary suit on the original civil side of this Court under the summary chapter of the Civil Procedure Code, 1908.

2. A perusal of the plaint would show that the suit has been filed for recovery of Rs.10,86,800 against the defendants on the basis that the plaintiff had deposited in 1989 a' sum of Rs.71,500 ,with defendant No.1, through defendant No.8, who was the then Manager of defendant No.7, Bank on the expectancy of profits thercon. As security for this sum, defendant No.8 procured the issuance of six post‑dated cheques drawn on defendant No.l's account with defendant No., which were endorsed good for payment by the defendant No.7. However, subsequently the said cheques were dishonoured by defendant No.7 on their due dates and neither did defendant No.8 provide any relief in the matter, hence the suit. Although nothing had been said to the plaint regarding the capacity in which defendants Nos.2 to 6 are being sued, presumably they are the partners of defendant No. l firm. In my view, in order to bring any transaction within the purview of the Act and the Banking Court it would first have to be established that the relationship between the parties to such transaction is either that of a borrower or customer ‑(who have obtained a loan or finance from a Banking Company) which terms have been specifically defined vide sections 2(c) and 2(d) of the Act and secondly that such transaction involves the extension of a loan or finance to such borrower or customer which terms have again been specifically defined in sections 2(f) and 2(e) of the Act respectively. This conclusion appears to be imperative according to section 9(1) of the Act which lays down the procedure to be followed by Banking Courts. "

9. Procedure of Banking Courts.‑‑‑ (1) Where a borrower or a customer or a banking company commits a default in fulfilling any obligation with regard to any loan or finance the banking company or, as the case may be, the borrower or customer, may institute a suit in the Banking Court by presenting a plaint duly supported by a statement of account which shall be verified on oath in the case of banking company by the Branch Manager or such other officer as the Board of Directors of a banking company may authorize in this behalf. Copies of the plaint shall also be filed along therewith in sufficient numbers so that there is one copy for each defendant and one extra copy." . It would now remain to be seen whether the facts in issue in the instant case fulfil the requirements as spelt out above.. In my view none of the parties to the transaction in issue i.e. plaintiff or any of the defendants is either a borrower or a customer and neither have they obtained a loan or finance from a bank. According to the plaint a certain sum of money was placed with defendant No. l by the plaintiff as an investment for which defendant No.7 issued cheques drawn on defendant No. I's account which were endorsed good for payment but subsequently, dishonoured. It cannot be said in the circumstances that the plaintiff borrowed the money from defendant No.7 Bank as nothing has been A brought on the record in support of this proposition. Mere issuance of cheques drawn on an account holder's account and endorsed good for payment by the Bank would not amount to a transaction as contemplated by the Act. In this respect I have also perused the detailed order, dated April 34, 1978 in Suit No.475 of 1993 passed by my learned brother Rasheed A. Rizvi, J. who has come to the same conclusion. For the foregoing reasons I hold that this suit shall proceed as an ordinary suit before the original civil side of this Court based on the Summary Chapter of the Civil Procedure Code as negotiable instruments i.e. cheques are IA involved. H.B.T./R‑73/K Order accordingly.