2010 PLP 293 (CLD)

MIAN SAQIB NISAR, J.

The noted suit was instituted on 10-2-2004 and came up for hearing before this Court for the first time on 13-2-2004, when it was noticed (by the Court) that it is bad for the mis-joinder of the parties, therefore, learned counsel of the plaintiff was directed to assist the Court in the terms "whether decree in suit for damages can be passed against the defendants in the facts and circumstances narrated in the plaint." On 19-2-2004, learned counsel for the plaintiff conceded that defendants Nos.8 and 9 (as originally arrayed) are neither necessary nor proper party and stated that their names be deleted from the array of the defendants, which request was allowed and the amended plaint was directed to be filed. On 5-3-2004, the plaintiffs counsel was confronted with the question about the jurisdiction of the Court to entertain the suit under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001(hereinafter be referred Ordinance, 2001), on account of the averments made in the plaint, wherein it is stated that the plaintiff intends to enforce his right on the basis of the letter of credit (L/C) established by the Hong Kong and Shanghai Banking Corporation Ltd., defendant No.1 in his favour, which was confirmed, by the Bank's Branch at Karachi and further advice for the confirmation of the L/C was made by the Allied Bank of Pakistan Ltd, Sahiwal, defendant No.6; it was argued that the matter falls within the definitions of the "financial institution" and the "customer" as defined in the Ordinance, 2001 and in view of the law laid down in the case reported as Qatar Airways PLC v. ANZ Grindlays Bank 2000 CLC 1455, the matter comes within the parameters of the Ordinance, 2001; still not being satisfied about the jurisdiction of this Court under the special law to entertain the present suit, therefore, instead of issuing a formal notice under section 9 of the Ordinance, 2001 to the defendants, a pre-admission notice was sent to them, which was described in the order "shall be deemed to be the notice at the limine stage" thus the defendants were accordingly required to appear and assist the Court on the noted question.

2. Learned counsel for the plaintiff has argued that whenever a suit. is filed, which is structured .by the plaintiff (of the case) to be the one under the provisions of section 9 of the Ordinance, 2001, it is as a matter of course and the duty of the Court to issue a notice to the defendant of the case, because section 9(5) ibid is a mandatory provision, as the expression "shall have" appears therein regarding the issuance of notice and the service of the defendant as per the process/procedure prescribed in the subsection and it is only upon filing of the application for leave to appear and defend by the defendant in terms of section 10 of the Ordinance, 2001, that the Banking Court subject to section 11 shall be empowered to grant leave, if upon consideration of the contents of the plaint, the application for leave to defend and the reply thereto, the Court is of the view that the substantial questions of law or facts have arisen in the matter in respect of which evidence needs to be recorded; the Banking Court except through the above procedure has no power to examine the plaint prior to the issuance of the notice under section 9 of the Ordinance, 2001, while exercising its special jurisdiction under the special law and is bound as mentioned earlier to issue the notice under section (9) of the Ordinance, 2001, where a suit has been structured and captioned under the Ordinance; the Court cannot examine the plaint or any other documents prior to the consideration of the question of leave and granting thereof, at the preliminary stage, the Court cannot examine the plaint, statement of accounts, documents attached thereto to ascertain, if the case falls within the Special Law and its jurisdiction. It is only if a PLA has been filed by the defendant at the leave consideration stage, all the legal and factual pleas raised by the defendant can be considered and the decision can be rendered, if the leave should be granted or otherwise by following the rules laid down in section 10 of the Ordinance, 2001; in any case, the banking Court is not empowered at all to call the defendant at pre-admission or limine stage, enabling him to raise legal and factual defence, which so if permitted would defeat the provision of section 10 of the Ordinance, 2001 and this is against the letter and spirit of the law; there is no scope at all for pre-admission notice calling the defendant in the banking cases the order, if passed by the Court in the nature of a pre-admission notice, has no legal value and sanctity in the light thereof and the Court even is not empowered to recall the said order, therefore, pre-admission notice for all intents and purposes shall be deemed to be a notice under the provisions of section 9 of the Ordinance, 2001 and when such notice has been received by the defendant, the defendant is obliged to file the leave application within 30 days in accordance with the provisions of section 10 of the Ordinance, 2001, and failing to do so the consequences shall follow; the Court cannot recall the order of pre-admission and thereafter issue fresh notice in terms of section 9 of the Ordinance as there is no such provision in the special law. Reference in this behalf is placed on Messrs Shah Jewana Textile Mills Ltd. Lahore through representative v. United Bank Ltd. through Attorney PLD 2000 Lah. 162; the Banking Court is creature of the special law, in which the special procedure has been provided, which must be followed in the letter and spirit, reference is made to the cases reported Ahmad Murad Malik v. Presiding Officer, Banking Court 2002 CLD 577 at page 580, Sheikh Nazir Ahmad v. House Building Finance Corporation through General Manager 2002 CLD 1634, Habib Bank Limited v. Messrs The English Engineering Company and 2 others 2005 CLD 292, Manzoor Ahmad and another v. Agricultural Development Bank of Pakistan through Manager Nankana Sahib Branch and 3 others 2005 CLD 653 and Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager 2003 CLD

245. In support of his other contentions mentioned above, support is also drawn from the judgments reported as Qatar Airways PLC v. ANZ Grindlays Bank 2000 CLC 1455 and PASSCO v. Omer Bilal Traders (Pvt.) Limited 2007 CLD 492; it is also argued that the banking Court even if being presided over by a Judge of the High Court, is not the Court as contemplated by the Rules and Orders of the Lahore High Court, therefore, the said rules as contained in Chapter 1-C clause (vi) thereof, such as rejection of the plaint, about the payment of Court fee, stamp duty and the bar of the suit by law, cannot be looked into; this too is the position that the suit of the plaintiff once having been captioned to have been filed under section 9 of the Ordinance, neither the plaint at the stage before the issuance of notice and consideration of leave can be rejected in terms of order VII Rule 11, C.P.C. nor a plaint can be returned under Order VII Rule 10 C.P.C. It is also argued that the general provision of Order XXXVII, Rule 3, C.P.C. are inapplicable to the suit brought under Ordinance, 2001. Support is drawn from the judgments reported as Haji Alvi Khan Sr Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362, PASSCO v. Omer Bilal Traders (Pvt.) Limited 2007 CLD 492, Zarai Tariqiati Bank Ltd. through Branch Manager v. Hassan Aftab Fatiana 2009 CLD 36, Chaudhry Mukhtar Ahmad v. National Bank of Pakistan and others 2007 CLD 501, Messrs Platinum Insurance Company through Chief Executive v. Messrs Highways Bridge, Contractor International (Pvt.) Ltd. and another 1997 MLD 2394 and Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835.

3. Mr. Munawar-ul-Islam, learned counsel for defendants Nos. 1 to 3, states that defendants Nos. 1 to 3 are the "financial institutions" and are issuing banks of the L/C; defendant No.4 is basically the "customer" of defendants Nos. 1 to 3 within the purview, scope and parameter of Ordinance, 2001, rather the plaintiff; defendants Nos.5 to 7 are only advising banks. Plaintiff is the supplier of the goods to defendant No.4 and thus on account of the above relationship inter se them, neither the plaintiff is the "customer" nor the defendants Nos. 1 to 3 are the "financial institutions" as defined by the law; the L/C opened by defendant No.1 in favour of the plaintiff on behalf of defendant No.4 is not the "finance" as prescribed by section 2(d) of Ordinance, 2001, which he has elaborated to mean that the person in whose favour L/C has been issued is not the "customer" within the contemplation of the special law; rather a beneficiary of the L/C. Reliance in this behalf has been placed upon. Procter and Gamble Pakistan (Pvt.) Ltd. Karachi v. Bank Al-Falah Limited Karachi and 2 others 2007 CLD 1532, paragraph Nos.14 and

15. It is also argued that expression "finance" has been defined in subsection 2(d) of Ordinance 2001 and the transaction on the basis of which the present' suit has been instituted by the plaintiff does not fall within that term. Section 9 of the Ordinance, 2001 on account of the above definition read with section 7(4) and section 3 are interlinked provisions and no suit can, be instituted without establishing and satisfying first, the condition that the subject-matter of the suit falling within the purview of the "finance". Reliance in this behalf has been placed on Abdul Rehman Allana v. Citibank 2003 CLD 1843 and PICIC v. Frontier Cermics Ltd. and others 2000 CLC 287; it is also submitted that the question of its jurisdiction is the paramount consideration/duty of the Court and this obligation should be performed at the very inception, rather leaving it for a latter stage, and on account of the notice issued under section 9 a harm, hurt and loss would have been caused to the defendant, by the time, the Court comes to the conclusion that it does not have the jurisdiction; he has also relied upon the doctrine of the jurisdictional fact and has referred the judgment reported as Akhtar Ali Parvez v. Altafur Rehman PLD 1963 (W.P.) Lahore 390 at pages 402 and 403 and Muhammad Ismail v. Israr Ahmad PLD 1961 (W.P.) Lahore 601 at page 604; it is also stated that the Court has the general duty to examine the plaint as per law enunciated in the judgment reported as Col. Javed Iqbal Lodhi v. Lt. Col. Nadeem Ahmar and another 2007 CLC 831 at page

840. Reference has also been made on the High Court Rules and Order Chapter 1-C clause (vi) and Article 175 of the Constitution of Islamic Republic of Pakistan to argue that it is only those Courts, which have been created by the law, shall have the jurisdiction in the matter precisely as per the letter and spirit of the law; the High Court Rules and Orders have been framed under Article 202 of the Constitution of Islamic Republic of Pakistan and a plaint can be returned if not instituted before the proper forum as per judgment reported as Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 at pages 522 and 523; that the plaint can be returned even before issuance of the notice under section 9 of the Ordinance, 2001, support is drawn from the judgment reported as Ali Muhammad and 6 others v. Secretary, Board of Revenue, Sindh, Hyderabad and 9 others PLD 1997 Kar. 747; that the parameters of section 9 of the Ordinance ibid should be considered in the light of the judgment reported as Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; The word "shall" appearing in section 9 is a interchangeable term- with the expression "may" and thus it is not mandatory to issue notice under section 9(5) in all the cases, which are captioned to be filed under section

9. Reliance is placed on Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others PLD 1972 SC

326. Lastly, it is argued that the rules of reading down should be applied to the matter and it should be read into the statute that the Court has ample powers to examine the plaint for determining the cause of action and about the jurisdiction, etc; he has drawn support from the cases reported as Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582.

4. Heard. Under the provisions of section 9 of the C.P.C., the Civil Courts are the Courts of inherent and plenary jurisdiction vested with the power to decide the dispute inter se the parties of the civil nature, except those suits of which its cognizance is either expressly or impliedly barred. Before the enforcement of the Banking Companies (Recovery of Loans) Ordinance, 1979 (the Ordinance 1979), the dispute between the Bank and its client of whatever nature, was the subject of such Court's jurisdiction; however, for the purposes of determination and adjudication of certain cases between the banks and its client, a special law in the nature of the said Ordinance was enforced, which expressly barred the jurisdiction of the civil Court regarding the cases falling within the parameters of this special law; the "Banking Company" was defined in section 2(a) to mean "a bank as defined in the Banks (Nationalization) Act, 1974 (XIX of 1974) and includes, a banking company incorporated outside Pakistan and transacting banking business in Pakistan and a financial institution which the Federal Government may, by Notification in the official Gazette declare to be a banking company for the purposes of the Ordinance, but does not include the State Bank of Pakistan", the "borrower" was defined in section 2(b) as "a person who has obtained a loan from a banking Company and includes a surety or an indemnifier", in section 2(d), "loan" was translated to mean "includes (i) an advance, cash credit, overdraft, packing credit, a bill of discounted and purchased or any other financial accommodation provided by a banking company to a borrower (ii) a guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower; (iii) a Benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name 'the loan is advanced or granted; (iv) any amount due from any borrower to a banking company under a decree passed by a civil Court or an, award given by an arbitrator; and (v) any loan due from any borrower to a banking company which is the subject-matter of any pending suit, appeal or revision before any Court. For the purpose of the above law, the Special Court constituted thereunder was conferred with the power (a) in .the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower by a borrower against a banking companies in respect of, or arising out of, a loan all the powers vested in the civil Court under the Code of Civil Procedure 1980 (Act V of 1908)". It may be categorically held that on the enforcement of this law, the disputes between the banking company or the borrower relating to the loan were taken away from the ordinary/plenary jurisdiction of the Civil Courts, which were earlier available to such Courts and was exclusively conferred upon the Special Court constituted under the Ordinance, 1979.

5. In the area of special subject about the banking disputes, the Ordinance, 1979 was followed by the Banking Tribunals Ordinance, 1984 (Ord. No. LVIII of 1984); the definition of "Banking Company" almost remained unchanged but borrower's definition of the earlier law was substituted by the "customer" (section 2(c) to mean "a person who has obtained finance from the banking companies or is the real beneficiary of such finance, and include surety and "an indemnifier". A very exhaustive definition of the term "finance" was provided by section (e) ibid, which reads as follows:-- "Finance" includes an accommodation or facility under a system which is not based on interest but provided, on the basis of participation in profit and loss, mark-up or mark-down in price hire-purchase, lease, rent-sharing, licensing, charge or fee of any kind, purchase and sale of any property, including commodities, patents, designs, trade marks and copy rights, bills of exchange, promissory notes or other instruments with or without bay-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided." Section 5 contemplates the "Power of Banking Tribunals" constituted under this Ordinance and it was ordained that (1) A Banking Tribunal shall:-- (a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a Banking Company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested, in a Civil Court under the Code of Civil Procured 1908 (Act V of 1908)." These two special laws had their own independent and parallel applications depending upon the nature of the case, but with the conscious feature that to the extent of the cases, falling within their empowerment, the jurisdiction of the civil Court was excluded. These two statutes were repealed and replaced by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) (hereinafter referred Act XV of 1997); the "Banking Company" was given the following extensive meaning as per Section 2(a):-- (i) any company whether incorporated within or beyond Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan and includes a government savings bank; (ii) a Modaraba or Modaraba Management Company, leasing Company, investment bank, financing company, unit trust or mutual fund of any kind and credit or investment institution, corporation or company, whether industrial, agricultural or development; and (iii) any company authorized by law to carry on any similar business specified in the Schedule to this Act"; the terms "borrower" and "customer" were given the same meaning as under:-- "borrower" means a person who has obtained a loan under a system based on interest from a banking company and includes a surety or an indemnifier; "customer" means a person who has obtained finance under a system based on interest from a banking company or is the real beneficiary of such finance, and includes a surety or an indemnifier; While the definition of the "finance" has been further enlarged to include quite a lot of transactions, which otherwise may not have been a part of the term in its ordinary parlance and generic sense. It may not be out of place to mention that the Act XV of 1997 was enforced with an object of consolidating the earlier two special laws and to bring into its folds all the pending litigations between the banks, financial institutions and customer/borrower in the two respective jurisdictions and also to cater for the future litigation, which may arise after the laws repealed in the given area. Be that as it may, it seems that according to section 9 of the noted Act, the jurisdiction of the Banking Court was widened as it enunciates "Where a borrower or a customer of a Banking Company commits a default in fulfilling any obligation with regard to any loan or finance the banking company or, as case may be, the borrower or customer, may institute a suit in the Banking Court." Anyhow, this law has been repealed and replaced by the Financial Institutions (Recovery of Finances) Ordinance, 2001 in which under section 2(a), the financial institution has been defined and includes:-- (i) any company whether incorporated within or outside Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan through its branches within or outside Pakistan and includes a government savings bank, but excludes the State Bank of Pakistan." (ii) a Modaraba or Modaraba Management Company, Leasing Company, Investment Bank, Venture Capital Company, Financing Company, unit trust or mutual fund of any kind and Credit or Investment Institution, Corporation or company; and (iii) any company authorized by law to carry on any similar business as the Federal Government may by notification in the official Gazette, specify; Under subsection (d) to section 2, the term "finance" has been defined to include:- (i) "an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, Musharika, Morabaha, Musawama, Istisnah or Modaraba certificate, term finance certificate. (ii) Facility of credit or change cards; (iii) Facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution; (iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer; (v) a Benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted; (vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court, any other facility availed by a customer from a financial institution. Section 9 of this law is analogous to the provisions of section 9 of Act XV of 1997.

6. On account of the above narrated legislative history on the subject under consideration, it is clear that since 1979, the legislature feeling the acute need of speedy disposal of the matters, through a specific procedure and by a special forum has slashed and expressly barred the jurisdiction of the Courts of plenary jurisdiction and conferred special jurisdiction upon the Special Court with regard to the dispute between the banking company/financial institutions and the borrower/ customer. However for the exercise of such jurisdiction, it is fundamental, imperative, essential and sine qua non that two conditions must be met, co-exist and fulfilled, firstly, the special Court should have jurisdiction over the subject-matter, which means that the cause of action propounded in the plaint must be for redressal of the grievance qua the enforcement of the right or the complaint about the breach of obligation on part of the defendant but relatable to the "finance", this can be termed to the subject-matter jurisdiction. If the dispute inter se the "financial institution" and the "customer" or vice versa is not based upon "finance" and/or failure of an obligation in relation thereto, the special Court shall have no jurisdiction in the matter. The second facet of the jurisdiction is over the parties to the lis, which may be termed as jurisdiction over the parties, and connotes that the banking Court shall only have the jurisdiction in the cases, where the relationship of the 'financial institution" and that of the "customer" exists between the parties; considering both these aspects of jurisdiction, the broad question of jurisdiction shall be that the dispute should be between the "customer" and the "financial institution" as defined in law, in respect of the failure of the defendant to fulfil its/his obligations in relation to the "finance", which is so specifically, lucidly and clearly mentioned in section 9 of the Ordinance, 2001, which is the key provision of the special law and can be termed " as the jurisdictional clause of the enactment; if the relationship between the parties to the suit is not that of the "customer" and the "financial institution" and not is about the "finance", the special Court shall have no jurisdiction. To illustrate the above, it may be mentioned that if the "financial institution" has rented out its property to a person, who commits a default in the payment of the rent, the institution cannot sue such person in the special Court for the recovery of its outstanding dues or for the vacation of the property as the required relationship inter se the parties is lacking; besides the dispute shall not be based upon the "finance", likewise, this shall be also true for the employee of the "financial institution" whose services have been illegally terminated and/or he has propounded his claim under the special law against the institution on that account.

7. Though the banking Court has been created under the special law, but it is not devoid of inherent character and status of a Court, rather for all intents and purposes it shall be a Court created and exercising its powers in terms of Article 175(1)(2) of the Islamic Republic of Pakistan, 1973. It cannot be held to be and/or equated to a fora of administrative nature or a domestic Tribunal. And therefore, whenever a cause is propounded before it, the banking Court clothed with the noted characteristics should exercise all its powers, which the Court should in its plenary civil jurisdiction is empowered at the very inspection of the lis when it comes before it, before proceeding further in the matter. Obviously, at that stage, the duty of the Court as is required from the Court of general civil jurisdiction is to look into the contents of plaint and to evaluate therefrom, deeming those to be correct, if it does disclose a cause of action or otherwise; does the Court has the jurisdiction over the subject-matter of the suit, and the jurisdiction over the parties; whether the plaint has been signed, verified and duly instituted (by an authorized person); whether the proper Court-fee has been paid thereupon; whether it is barred under any law or not; the plaint is supported by the requisite statement of accounts and other relevant documents to prima facie establish the liability under the special law, and about the special relationship of the parties envisages by the law (2001 Ordinance). This all should be done at the limine stage, because issuance of the notice under section 9 to the defendant of a case may it be the "financial institution" or the "customer", which has to be published in two daily newspapers and such publications have some serious irreversible effects and the consequences; mere publications thereof may impair, hurt and damage the credibility, reputation,, status of the defendant within the business community he deals, other financial institutions, he has relations, the employer he work for, his prestige and dignity may be lowered in the eyes of his friends and delicate and fastidious relations; there can be many other complications and consequences on this account, which cannot be fully comprehended and yet the suit may fail some time latter for any one of the reasons mentioned above, particularly on the point of jurisdiction or on the basis of some other legal account highlighted above; this may also be. true in a suit brought against the bank, because in one of such cases, where the plaintiff ultimately did not qualify the test of being a "customer", I have experienced that in a matter of damages (against a financial institution) of billions of rupees, the issuance of notice resulted into sharp decline of its shares value and the stock market as a whole. In the given scenario, it enjoins the duty upon the Court, a very sacred one, to take care of the above factors at the very institution of the suit.

8. Attending to the objection raised by the plaintiffs counsel that there is no concept of pre-admission notice under the special law and therefore, the order passed by this Court dated 5-3-2004 calling the defendants to appear at limine stage is improper. I have examined this aspect and find weight in his plea. The Court at the very inception without issuing a notice under section 9, should take a decision on the basis of The parameters laid down above and thus no notice should be issued, particularly in the case where the Court is of the firm view about. the lack of jurisdiction; however, if the Court is prima facie satisfied with the said conditions/parameters than obviously the required notice must go leaving the determination of the matter in the light of the defence of the defendant. There should be thus no notice issued to the defendants, either as preliminary, pre-admission or in limine, at all. However, I do not agree with the learned counsel for the plaintiff that because such notice has been given to the defendants in this case and now it cannot be recalled and therefore, it should be deemed to be a notice in terms of section 9, resultantly, the defendants having failed' to file their leave application therefore, their defence must be struck off, suffice it to say that the principle "Actus curiae neminem gravabit" an act of the Court will prejudice no one, is duly attracted to the proposition. Besides, the defendants have never been given notice requiring them to file leave to appear and defend and until they are specifically modified in terms of Form IV in Appendix B to the Code of Civil Procedure, no penal action about the alleged lapse of PLA can be taken against the defendants, therefore, to this extent, the argument has no force.

9. Now coming to the question if the present matter falls within the jurisdiction of this Court or not; it is the plaintiffs case that the plaintiff and defendant No.4 entered into a verbal agreement for the export of 920 metric ton Rice Husked Super Brown Basmati @ US$ 650 per metric ton totalling US$ 5,90,000 from Pakistan to UK, the payment of sale price was secured by an irrevocable transferable letter of credit at sight to be issued by the bank in favour of the plaintiff. On the request of the defendant No.4 i.e. Electro Centre Ltd., the defendant No.2, the "Issuing Bank" issued a letter of credit in favour of the plaintiff. The defendant No.3 vide its letter dated 6-2-2003 forwarded the said LC to the plaintiff through Bank Alflah Ltd. which was received by it on 19-2-2003, the forwarding letter to the LC inter alia provided "we advise having received the following documentary credit dated 4th February, 2003 and will be pleased to negotiate the documents drawn under the said credit" and confirmed "we advise having received the following authenticated tele-transmission (SWIFT MT 700) from HSBC Bank PLC (SWIFT ADDRESS MIDLGF 22). It is further mentioned that the letter of credit was available with/by any bank, by negotiation at sight. Last date of shipment was 27-4-2003 for transportation FOB from Pakistan port to UK port with shipped on board notation to be authenticated for and on behalf of carrier. However, the letter of credit was amended on some occasions and during all this period, the plaintiff has been making arrangements by collecting rice from the market and after due process packing thereof was carried out. The plaintiff approached the DMK Logistics (Pvt.) Ltd. and an agent of DMK Shipping Lines Ltd.UK (the carrier) and entrusted it the shipment of the goods in terms of L/C. The shipping bills dated 10-5-2003, 10-6-2003, 19-6-2003 and 30-6-2003, issued by Messrs Shoaib Enterprise and addressed to the Traffic Manager, Karachi Port Trust clearly indicates that the goods were readily available at Karachi Port for shipment on the respective dates. These documents clearly show that the plaintiff fully complied with the terms of the L/C and the goods were shipped on board on 12-7-2003. The plaintiff has fulfilled the obligations under the contract and presented the shipment documents vide his letter dated 18-7-2003 to defendant No.6 in terms of letter of credit and requested to negotiate and credit the plaintiffs account along with the commercial documents; the said defendant No.6 on 23-7-2003, received the documents with the noting "received above documents for negotiation purpose". It is mentioned in paragraph No.7 of the plaint that "unfortunately the defendants Nos.6 and 7 miserably failed to fulfil their obligations and never credited the negotiated amount of Rs.34 Millions odd to the plaintiffs account maintained with the defendant No.7."

10. The grievance of the plaintiff in subsequent paragraph of the plaint in nutshell is, that he was entitled to the payment against LC, which was irrevocable (at sight) after the shipment of goods, but having failed to make the payment, the defendants are liable to satisfy the claim propounded in the suit. It may be pertinent to mention that in this regard the following part of paragraph 19 is quite relevant:-- "it becomes crystal clear that the defendants Nos. 1 to 3 by not honouring their commitments through issuance of irrevocable transferable L/C at sight have rendered themselves liable for the heavy losses/damages suffered by the plaintiff and are under legal obligation to compensate him. The defendant No.4 had also committed breach of contract by not receiving the goods duly shipped which actually reached at the designated UK port rather attempted by playing foul tactics to get the irrevocable transferable L/C cancelled by the defendants Nos. 1 to 3 as such in view of the fact that the goods were in fact shipped which amounted to the delivery to the defendant No.4. The defendant No.4 has rendered itself to be liable under law to make good the losses/damages suffered by the plaintiff not only for the breach of contract but also for the damages suffered by the plaintiff on account of his loss of business, expected profits and consequential special damages. The documents attached with the plaint clearly prove that the defendants Nos.5 to 7 admittedly were under obligation to credit the plaintiffs account with the negotiated amount of L/C which in fact was confirmed by the defendants Nos.5 to 7 to the defendants Nos. 1 to 3 that they had already negotiated the documents and have made the payment to the plaintiff. It is pertinent to mention that as submitted above, the defendants Nos.5 to 7 in fact received the negotiated amount of approximately Rs.34 Million from the State Bank of Pakistan which was available with the defendants Nos.5 to 7 but with mala fide could not be credited to the plaintiffs account despite his earnest requests/demands as he was in sheer need of money to make the payment of freight and to meet his current liabilities and other expenses for re-import of subject consignment from UK to Pakistan." Summary of the claim of the plaintiff is further given in para 20 thereof which relates to the cause of action and is also quite relevant, which reads as follows:-- "That the cause of action in favour of the plaintiff and against defendants firstly arose in January, 2003 when a verbal agreement was entered into between the plaintiff and the defendant No.4 for the export of goods from Pakistan to UK and secondly on 4-2-2003 when the defendant No.2 issued an irrevocable transferable L/C at sight on the instructions of defendant No.4 in favour of the plaintiff and instructed the defendant No.3, to confirm the same to the plaintiff through Bank Alflah Ltd. with the direction to present the documents before the defendant No.3 and thirdly on 12-7-2003 when the goods in terms of L/C were shipped on board and fourthly on 18-7-2003 when the original L/C with amendment along with shipping documents were presented to the defendant No.6 for negotiation and on the failure of the defendants Nos.5 to 7 on 23-7-2003 to credit the plaintiffs account with the negotiated amount of Rs.34 Million despite receiving the same from State Bank of Pakistan and fifthly on 21-7-2003 when defendants Nos.1 to 4 manoeuvred to cancel the L/C unilaterally and sixthly on 29-7-2003 when the defendants Nos. 1 to 3 failed to make the payment and illegally refused the acceptance of documents and since then has been continuously arising and continues to arise as the defendants Nos. 1 to 3, defendant No.4 and defendants Nos.5 to 7, have been in default and are still committing default in fulfilling their respective contractual financial obligations causing heavy financial losses/damages to the plaintiff." From the averments of the plaint taken in totality, it is vivid on the face of the record that the real dispute of the plaintiff is with defendant No.4; L/C has been opened in favour of the plaintiff for and on behalf of the said defendant and if he has stopped the payment on the basis of L/C, the plaintiff at the best can sue the said defendant for breach of the contract and also may recover the amount of L/C from the advising bank, etc. if liable but such opening of L/C in favour of the plaintiff would neither mean that the matter falls within the purview of the "finance" nor it give rise to the relationship between the plaintiff and the defendants as of the "customer" and the "financial institution" as defined in law; besides, the claim of the recovery of the damages as per the break up given in paragraph 20 of the plaint and description/head mentioned therein is beyond the scope of recovery from the defendant-bank's, may it be an enforceable claim simplicter against defendant No.4, thus from all angles, it is clear that the case of the plaintiff does not fall within the ambit of the subiect matter/jurisdiction and also the jurisdiction of the banking Court over the parties and therefore, the plaint is liable to be returned to the plaintiff for filing it before the Court of competent plenary jurisdiction, therefore, the plaint is accordingly returned in terms of Order VII, rule 10 C.P.C. M.H./M-849/L Plaint returned.