2013 PLP 2102 (CLD)

A suit instituted by the respondent-Bank against the present appellants before the learned Judge Banking Court, Lahore for the recovery of an amount of Rs. 5,28,252 was dismissed for non-prosecution on 11-11-2005.

2. An application under Order IX, Rule 9 read with section 151, C.P.C. for restoration of the said suit was moved by the respondent-Bank on 12-11-2005. It is important to note here that an application for grant of leave to defend the suit was moved by the present appellants on 14-10-2005 which was pending. Said application was fixed for hearing on 11-11-2005 but nobody appeared on behalf of the respondent-Bank whereas the learned counsel for the defendants was present. The learned Judge Banking Court, Lahore, vide order dated 11-11-2005 dismissed the suit for non-prosecution.

3. On 12-11-2005 an application was moved by the respondents for restoration of the said suit. This application was contested by the present appellants and the application was accepted by the learned Judge Banking Court, Lahore vide order dated 9-9-2006.

4. Instant FAO has been directed against the order dated 9-9-2006.

5. It is contended by the learned counsel for the appellants that the learned Judge Banking Court does not have jurisdiction to pass order for restoration of the suit which has been dismissed for non-prosecution. Learned counsel in this behalf relies on section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001, wherein the orders passed by the Judge Banking Court have been declared to be final subject to provision of section

22. Learned counsel argues that only remedy available to the respondent-Bank in case of dismissal for non-prosecution of the suit was to prefer an appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001. Learned counsel relies on 2006 CLD 52, 2006 CLD 163, and 2002 CLD 341, in support of his contentions.

6. Learned counsel for the appellants has been put a question as to whether the learned Judge Banking Court has any power under Financial Institutions (Recovery of Finances) Ordinance, 2001 to dismiss the suit in default. Learned counsel candidly admitted that there is no such provision in Financial Institutions (Recovery of Finances) Ordinance, 2001 empowering the learned Judge Banking Court to dismiss the suit for non-prosecution instituted by the bank for the recovery of an amount before the Banking Court.

7. We have perused the provisions of section 7 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which read as under:--

7. Powers of Banking Courts.

(1) Subject to the provisions of this Ordinance, a Banking Court shall,-- (a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (b) in the exercise of its criminal jurisdiction, try offences punishable under this Ordinance and shall, for this purpose have the same powers as are vested in a Court of Sessions under the Code of Criminal Procedure, 1898 (Act V of 1898): Provided that a Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorized in this behalf by the financial institution in respect of which the offence was committed. (2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898). (3) All proceedings before a Banking Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and a Banking Court shall be deemed to be a Court for purpose of the Code of Criminal Procedure, 1898 (Act V of 1898). (4) Subject to subsection (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the exercise or otherwise of a finance and the execution of a decree passed by a Banking Court. (5) Nothing in subsection (4) shall be deemed to affect,-- (a) the right of a financial institution to seek any remedy before any Court or otherwise that may be available to it under the law by which the financial institution may have been established; or (b) the powers of the financial institution, or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before the coming into force of this Ordinance. (6) All proceedings pending in any Banking Court constituted under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997), including suits for recovery of "loans" as defined under that Act shall stand transferred to, or be deemed to be transferred to, an heard and disposed of by, the Banking Court having jurisdiction under this Ordinance. On transfer of proceedings under this subsection, the parties shall appear before the Banking Court concerned on the date previously fixed. (7) In respect of proceedings transferred to a Banking Court under subsection (6), the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court from which the proceedings were transferred."

8. The provisions of section 7(a) of the above-said Ordinance clearly envisage that all the powers of Civil Court have been conferred upon the Judge Banking Court to be exercised which are available under the Code of Civil Procedure, 1908 (Act V of 1908). Similarly, subsection (2) of section 7 of the above-said Ordinance provides that Banking Court in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908).

9. It is only under the provisions of Civil Procedure Code that the Banking Court can dismiss the suit for non-prosecution; if the Banking Court can exercise the powers to dismiss the suit for non-prosecution under the provisions of C.P.C. then powers for restoration as envisaged by the provisions of C.P.C. are inherently available to the Banking Court. This aspect of the matter has not been discussed in the judgments relied upon by the learned counsel for the appellants, which case-law therefore is distinguishable on these facts. The appellants have also not been granted leave to defend the suit by the learned Judge Banking Court, therefore, locus-standi to contest the application for restoration and also to file an appeal against acceptance of the same through the impugned order is also seriously doubtful.

10. In view of the above, we are of the considered opinion that the Banking Court could lawfully restore the suit dismissed in default, therefore, no illegality is found in the impugned order dated 9-9-2006 and the instant FAO is dismissed with no order as to costs.

11. The record of the trial Court be sent immediately to the learned Judge Banking Court for disposal in accordance with law. AG/M-168/L Appeal dismissed.