2006 PLP 1534 (CLD)

SYED HAMID ALI SHAH, J.

The petitioner through the instant petition has called in question the act of omission on the part of respondent No.2 by not performing his obligation in refunding the Term Deposit Receipt (TDR) for a sum of Rs.20,00,000 (Rupees Twenty Lacs only) purchased on 19-8-2003. It is contended that staff of Bank of Punjab, Chunian Branch, District Kasur remained involved in the acts of fraud, misrepresentation and embezzlement of huge amounts, including the amount of the petitioner. An F.I.R. to this effect was registered under sections 409, 463, 468, 471 and 420, P.P.C. and section 5(2) of PCA, 1947. The respondent was approached time and again for the payment of the amount, subject matter of TDR, but the efforts in this respect went futile, hence this petition.

2. Learned counsel for the petitioner has contended that since the factum of embezzlement of respondent No.2 has been proved, therefore, respondent No.1 is liable to refund the amount, which the employees of Bank in the course of their normal banking business have received.

3. Learned counsel for the respondents, on the other hand, has submitted that the matter is under probe with National Accountability Bureau; that the TDR is fake and for that reason the amount thereof has not been paid to the petitioner. While placing reliance on the cases of Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246, Mst. Kaniz Fatima through L.Rs. v. Muhammad Salim and 27 others 2001 SCMR 1493 and Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572, learned counsel submits that alternate remedy has not been availed, the writ is not maintainable. Learned counsel has submitted that the question of fact is involved in this petition and the factual controversy cannot be gone into in constitutional jurisdiction.

4. Heard the learned counsel for the parties and perused the record. The question of genuineness of the TDR is a question of fact, which cannot be ascertained unless an inquiry in this respect is conducted. The petitioner has the remedy of either filing a suit under the relevant law or a complaint before the Banking Mohtasib. Alternate remedy is available to the petitioner to approach either the Court of competent jurisdiction or Banking Mohtasib under the provisions of Part-IVA of the Banking Companies Ordinance, 1962.

5. Jurisdiction of Banking Mohtasib extends to complaint with regard to delay or fraud in relation to the payment or collection of cheque, draft and other banking instruments and transfer of funds is fraudulent and unauthorized withdrawals or debt entries in the account, under the provisions of section 82-B(5)(ii)(iii).

6. It is settled law that the constitutional jurisdiction being an extraordinary jurisdiction can be invoked only to meet extraordinary situation. Such jurisdiction is never meant to be treated as adequate or alternate remedy provided by law. In view of the availability of alternate remedy the instant petition is not competent. If any case is needed reference can be made to the case of Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276, Mahmud Khan and another v. Government of the Punjab through District Collector, Lahore 2005 YLR 1133 and Ch. Muhammad Ismail (supra).

7. In view of the availability of alternate remedy to the petitioner, I am not inclined to entertain this petition. The petition is not maintainable and is dismissed accordingly. H.B.T./M-397/L Petition dismissed.