2003 PLP 67 (CLD)

Through this petition, transfer of the suit titled "Agriculture Development Banking of Pakistan v. Messrs Sialkot Dairies Ltd. and others" pending before the learned Banking Court, Gujranwala, is sought to be transferred to this Court under section 5(3) pf Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 24 of C.P.C. The suit sought to be transferred for trial to this Court was filed by A.D.B.P. for recovery of Rs.58,60,003 against Messrs Sialkot Dairies Ltd. and others i.e. the petitioners. Another suit i.e. C.O.S. No‑5 of 1995 titled "A.D.B.P. v. Sialkot Dairies Ltd. and others" for recovery of Rs.12,80,45,876 was also filed by Agriculture Development Bank of Pakistan against the same defendants (except two other defendants) in this Court under Banking jurisdiction and the same is presently pending.

2. The main ground raised in the transfer application and urged at the bar by the learned counsel for the petitioners is that both the suits are mainly between the same parties seeking enforcement of the same securities and oral as well as documentary evidence in both the suits shall be the same. And that interest of justice, convenience of parties and witnesses justify transfer of this suit from Banking Court, Gujranwala to this Court and the trial of both the suits together in the High Court acting as a Banking Court. It is further contended that effect of section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 7 thereof is that section 24 of the Civil Procedure Code will also become applicable to cross the bar of pecuniary jurisdiction to withdraw the case from the Banking Court, Gujranwala to this Court. Contrarily, learned counsel for the respondent‑Bank contended that section 2(b) of the Ordinance of 2001 defines Banking Court with reference to pecuniary limit of 50 million rupees and above and that in respect of a case in which claim does not exceed 50 million rupees, only Courts established under section 5 ibid by the Federal Government enjoy the jurisdiction and in respect of other cases (exceeding Rs.50 million), High Court has been given the jurisdiction as Banking Court and the jurisdiction bar cannot be waived.

3. I have considered the arguments of the learned Counsel for the parties and have also .examined the plaints in two cases. Civil suit titled "A.D.B.P. v. Sialkot Dairies etc." for recovery of Rs.58,60,003 relates to mark‑up based financial facility and was initially filed before the Banking Tribunal at Lahore under the Banking Tribunals Ordinance, 1984. Upon promulgation of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the suit must have been transferred to the relevant Banking Court which is now trying under the provisions of Financial Institutions (Recovery, of Finances) Ordinance, 2001. Suit bearing C.O.S. No.5 of 1995 titled "A.D.B.P. v. Sialkot Dairies etc." for recovery of Rs.12,80,45,876 was filed to recover interest based loan alongwith interest etc. This suit was initially filed before this Court under the Act of 1997 and is now being dealt with under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. Gujranwala's suit involves recovery of mark‑up based finance while the suit pending in this Court involves interest based loan. The subject‑matter of both the suits is thus obviously different and distinct.

4. The law applicable to both the suits now of course is Financial Institutions (Recovery of Finances) Ordinance, 2001, which in its section 2(b) defines the Banking Court, as under:‑ "Banking Court" means‑‑‑ "(i) in respect of a case in which the claim does not exceed fifty million rupees or for the trial of offences under this Ordinance, the Court established under section 5, and (ii) in respect of any other case, the High Court."

5. Under the above reproduced section, Banking Court has been defined and categorized with reference to its pecuniary limit. For suits involving recovery up to an amount of Rs.50 million, the Court of competent jurisdiction is the Banking Court established under section 5 of the said Ordinance of 2001 while in respect of any other case, High Court has been designated as a Banking Court to enjoy jurisdiction in suits for recovery of amounts exceeding 50 million rupees. The purpose of defining jurisdiction of the respective Banking Court with reference to pecuniary limit is 'obvious. High Court as "except Banking Court cannot deal with "any other cases those in which claim exceeds 50 million rupees while for claims not exceeding 50 million rupees, jurisdiction has only been confined to the Banking Court established under section 5 thereof. Pre‑condition for transfer of a case from one Court to the other is that the transferee Court should also be competent and possessed with jurisdiction to try such a case. Even section 24 of the Civil Procedure Code embodies the same principle. Since under section 2(b)(ii) of the special statute i.e. Ordinance of 2001, High Court as Banking Court is not vested with jurisdiction to try a suit below the monetary slab of fifty million rupees, a suit for recovery of amount less than 50 million rupees, cannot be transferred to it. However, with reference to section 24, C.P.C., it can be argued that bar of competence/jurisdiction prescribed in subsections 1(a) and 1(b) (ii) and of section 24, C.P.C. applies only to intra subordinate Court transfers and not to the High Court which upon withdrawing a case from a subordinate Court can try it itself by assumption of such jurisdiction on transfer. To my mind, this principle by analogy cannot be employed to civil suits initiated and tried under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. If High Court under section 24 of the Civil Procedure Code transfers a Banking suit pending in a Banking Court, to itself for trial, such suit, upon transfer may presumably become triable by the High Court. Such suit cannot, upon transfer, become triable by the High Court as Banking Court under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 because of the clear jurisdictional bar placed on High Court as Banking Court under the above reproduced section 2(b) (ibid). The object and prayer of the petitioners shall thus obviously be defeated because they are seeking trial of both the suits together under the Banking jurisdiction of the High Court.

6. The law is fairly settled that while acting under the Banking jurisdiction, this Court acts as the Banking Court and not as the High Court. Wherefore, section 24 of the Civil Procedure Code cannot be said to apply to a Banking Court as constituted in the High Court, section 24, C.P.C. applies and confers powers of transfer on the High Court or the District Court only.

7. The argument of the learned counsel for the petitioners is that this Court can exercise powers of transfer both under section 24 of the Civil Procedure Code s well as under section 5(3) of the Ordinance of 2001. There is no doubt that section 24 of C.P.C. confers powers of transfer on the High Court and so does 5(3) of 2001 Ordinance. There is, however, an obvious distinction and independence of two statutory powers. Section 24 of C.P.C. gives powers to the High Court to transfer any suit etc. to any Court subordinate to it or withdraw any suit etc. pending in any Court subordinate to it for trial or disposal of the same itself or by any other Court, so upon transfer, it is the High Court that may try the same itself. However, under section 5(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, High Court has been empowered to transfer "any case from one Banking Court to another". Such power of transfer is thus exercisable under the special Statute only to transfer a Banking case from one Banking Court to another Banking Court, only if, as per the opening words of subsection (3) of section 5 ibid, "where more Banking Courts than one have been established in the same or different territorial limits". As such, High Court under its general power of transfer under section 24 of the Civil Procedure Code cannot transfer a Banking case from a Banking Court to itself as High Court for trial. High Court will have no jurisdiction in view of exclusivity of jurisdiction of Banking Courts established under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. In my opinion, therefore, section 24 of C.P.C. does not apply and is not available to the High Court for exercising powers of transfer qua suits filed under the Ordinance of 2001. The only p6wer that can be exercised is the one, granted to the High Court is subsection (3) of section 5 of the Ordinance of 2001.

8. The question arising for determination is whether exercising power under subsection (3) of section 5 ibid, can the High Court withdraw/lift/transfer a suit involving claim less than 50 million rupees to its Banking Court for trial from a Banking Court of competent jurisdiction. It requires re‑reference to above reproduced definition of the Banking Court as given in section 2(b) of the Ordinance of 2001. Under clause (i) of section 2(b) (ibid) in respect of a case in which claim does not exceed 50 million rupees, the Banking Court having jurisdiction shall be the Court established under section 5 of the Ordinance of 2001, which is reproduced as under:‑‑‑ "Establishment of Banking Court.‑‑‑(1) The Federal Government may, by notification in the official Gazette, establish as many.. Banking Courts as it considers necessary to exercise jurisdiction under this Ordinance and appoint a Judge for each of such Courts and where it establishes more Banking Courts than one, it shall specify in the notification the territorial limits within which each of the Banking Courts shall exercise its jurisdiction. (2) Where more Banking Courts than one have been established to exercise jurisdiction in the same territorial‑limits, the Federal Government shall define the territorial‑limits of each such Court. (3) Where more Banking Courts than one have been established ‑ in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Banking Court to another. (4) ............................................ (5) ............................................ (6) ............................................ (7) ............................................ (8) ............................................ (9) ..........................................." (Underlining for emphasis is mine).

9. The bare reading of above reproduced section 5 reveals that Federal Government, in exercise of powers under this section, establishes Banking Courts and appoints Judges for such Banking Courts and specifies their respective territorial‑limits through relevant notification. Where Federal Government establishes "more Banking Courts than one", it defines their territorial‑limits and if "more Banking Courts than one have been established to exercise jurisdiction in the same territorial- limits" the Federal Government defines the territorial- limits of each such Court. Banking Court so established by Federal Government exercises powers under section 2(b)(i) ibid over suits not exceeding Rs.50 million. High Court which tries "all other cases" as Banking Court does not fall within this category of the Banking Courts because High Court is not established under section 5 of the Ordinance of 2001. To say the least, High Court has been set up and established under Article 175 of Chapter‑I, Part VII of the Constitution of Islamic Republic of Pakistan, 1973. Constitution of High Court and appointment of High Court Judges and establishment of its Benches is regulated by Articles 192 to 198 of Chapter III of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, above-said Article 175 provides that "there shall be a Supreme Court of Pakistan, High Court for each Province and such other Courts as may be established by law". The Constitution of Islamic Republic of Pakistan thus visualizes establishment of "High Court for each Province". As such, there cannot be more than one High Court for each Province. It goes without saying that each High Court established in the Province may, under Article 198, ibid have its Benches and circuit Courts, while the Lahore High Court under Article 198(3) "shall have a Bench each at Bahawalpur, Multan and Rawalpindi".

10. Provisions of above reproduced subsection (3) of section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, if read in above given perspective, makes the position of law rather clear. This subsection relates to High Court's power to transfer any case from one Banking Court to another "where more Banking Courts than one have been established in the same or different territorial limits". High Court's power to transfer only comes into play "where more.3anking Courts than one have been established". Such Courts are obviously established by the Federal Government under subsection (1) of section 5 (ibid). Each of the subsections while referring to plurality of Banking Courts use identical words, i.e. "where more Banking Courts than one have been established". The obvious conclusion, therefore, is that under abovesaid subsection (3) of section 5 (ibid), High Court's power of transfer is confined to exercising the same for transfer of cases from one Banking Court to the other as established under subsection (1) of section 5 and defined in clause (i) of subsection (2)(b) of the Ordinance. Such power cannot, therefore, be enlarged to include transfer of a case from such Banking Court to the High Court acting as Banking Court as defined in clause (ii) of subsection (2)(b) of the Ordinance of 2001. The power of transfer as provided to the High Court in subsection (3) of section 5 ibid is not available and cannot be exercised to transfer of a case to the High Court in its Banking jurisdiction. This petition is, therefore, dismissed with no order as to costs. Q.M.H./M.A.K./S‑439/L Petition dismissed.