1982 PLP 236 (CLC)

Provided further that a Special Court shall not take cognizance, of any offence punishable under the Ordinance except upon complaint in writing made by a person authorised in this behalf by the Banking Company in respect of which the offence was committed ; and (c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance. (2) . . . (3) .. (4) No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceedings, including proceedings following the filing of an arbitration award and proceed ings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court. (5). .. Section

2. Definitions.‑In this Ordinance, unless there is anything repugnant in the subject or context,‑ (a) .. (b) "borrower" means a person who has obtained a loan from a banking Company and includes a surety as an indemnifier. (c) . (d) "loan" includes‑ (i) an advance, cash credit, overdraft, packing credit, a bill 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 gives 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; (e) .. (f)

5. The learned Single Judge has held that the plaintiff can be treated as a borrower having obtained a guarantee from the Bank and he has, therefore, treated the suit as a claim by a borrower against the Banking Company arising out of a loan i.e. the Bank guarantee. With great respect we do not agree with the interpretation placed by the learned Single Judge upon the word `borrower' and `loan' as defined in this Ordinance. Reading the definition of `borrower' we find that it is only a person who has obtained a loan from the Banking Company including a surety and an indemnifier who can be treated as borrower. Admittedly, the present appellants had not borrowed or obtained any loan from the respondent Bank nor the appellants had stood as a surety or indemnifier on behalf of any borrower from the Bank or on behalf of any person who has taken any sort of loan from the respondent‑Bank, and, therefore, we cannot understand as to how the plaintiff/appellants has been treated in the posi tion of a borrower having obtained a guarantee from the Bank. In fact the appellant was a person who had advanced money to AEMCO and it was AEMCO who had secured the Bank guarantee to the appellant, and, therefore, if anyone could be called as a borrower for the respondent‑Bank then it could be only AEMCO and the appellant. The correct position appears to be that the appellant is a creditor of AEMCO and a creditor could not be defined as a borrower in any case.

6. Looking at the definition of `Loan' and reading it in accordance with the submissions of Mr. Sadruddin Huda who has contended that the definition of loan is very wide and different from its ordinary concept, i we find that the words are "Loan includes" which mean that the ordinary definition of loan has not been changed by the Legislature but only various other items are being included in the definition of loan which are not otherwise treated as loan and the same are enumerated in sub‑clauses (i), (ii), (iii), (iv) and (v). But having all these Sub‑clauses into consideration one cannot escape from the conclusion that all the various items included in these Sub‑clauses still point to the situation where a person is in the position of having secured some credit or an accommodation or guarantee or indemnity or advance from the Bank. These clauses do not state any where that a creditor or a borrower would also be treated as a person having taking a loan from the Bank or that a person to whom the bank gives a guarantee or indemnity would also be treated as a person who has taken loan from the Bank.

7. Mr. Sadruddin Huda had particularly relied upon sub‑clause (ii) of clause (d) of section 2 where a guarantee is included in the definition of loan but we find that even this guarantee is a guarantee which a Banking Company may give, issue or undertake on behalf of a borrower and, therefore, it does amount to the position only that the guarantee which has been given on behalf of AEMCO is a loan advanced by the bank to AEMCO and not a loan or advance, advanced to the appellants.

8. In fact we find that definition of borrower is really an important definition in this regard and we have already held above that the appellant cannot be termed as a person who has obtained a loan fro the Banking Company. Looking at section 6(1) (a) we find that the Special Court has the jurisdiction in respect of a claim filed by a Banking Company against a borrower or by a borrower against a Banking Company. Since the appellant is neither borrower nor a Banking Company, therefore, a suit filed by the appellant who is in the position of a creditor against the respondent Banking Company cannot be deemed to be covered by section 6(1) (a).

9. Section 6(4) which excludes the jurisdiction of every Court in respect of matters to which the jurisdiction of Special Court extends has again to be related back to section 6(1) (a) and since section 6(1) (a) is not applicable in respect of the present claim of the appellant against the respondent Banking Company, therefore, we have come to the conclusion that the Q jurisdiction of the High Court in entertaining the suit of the appellant was not barred and we would, therefore, set aside the order of the Hon'bl Single Judge dated 14‑12‑1980 with no order as to costs, and, consequently, the suit will be proceeded with. M. Y. M. Order accordingly:'