2002 PLP 577 (CLD)

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 141‑‑‑Provisions of C.P.C. could, be made applicable in case, where special law did not provide the remedy. Dr. Hameed Ahmad Ayyaz for Petitioner. Mian Asmat Ullah for Respondent No‑

2. Through the institution of this Constitutional petition, the petitioner/plaintiff has called in question the procedure adopted by the learned Banking Court in deciding a suit, filed by the petitioner against respondent No.2, with the prayer that the entire proceedings undertaken by the learned Banking Court may be declared as violative of the mandatory provisions of law with a further prayer that respondent No.1 may be directed to act in accordance with the provisions of Act XV of 1997.

2. Facts, giving rise to the filing of the present Constitutional petition, are that on account of certain acts and omissions, allegedly, committed by respondent No.2, the petitioner filed a suit for declaration with permanent injunction and recovery of Rs.50,00,000 as damages/ compensation against respondent No.2. It has been stated that when the plaint was presented, the learned Banking Court instead of following the procedure as laid down in section 9 of the Act XV of 1997, issued a notice to respondent No.2 and upon its service, directed the said respondent to file the statement of accounts, which was filed on 28‑6‑2001, and thereafter the learned Banking Court heard the arguments of the parties and set down the case for passing an appropriate order: Apprehending the passing of an adverse order, the petitioner filed an application under section 9(3) of Act XV of 1997 before the learned Banking Court seeking issuance of summons to respondent No.2, but the said application was not adhered to by the learned Banking Court and according to the contents of the writ petition, the same is still pending undecided. Pursuant to the above facts, the present Constitutional petition has been filed.

3. Learned counsel for the petitioner has contended that on the presentation of plaint, the procedure adopted by the learned Banking Court to adjudicate the suit is unprecedent and violative of section 9(3) of Act XV of 1997. He further submits that the learned Banking Court, on the filing of the suit, is bound to follow the procedure as prescribed under the aforenoted provisions of law and to decide the suit under the provisions of Act XV of 1997 and any deviation made therefrom will render the proceedings as coram non judice. Conversely, the learned counsel for respondent No.2 submits that the learned Banking Court, while deciding the suit can follow any procedure inasmuch as the learned Banking Court can reject the plaint in exercise of its jurisdiction under Order VII, rule 11, C.P.C.

4. Upon the examination of the order‑sheet, it appears that on 20‑6‑2001, a fresh suit was filed, whereupon the learned Banking Court in his own wisdom summoned respondent No.2 for the pre‑admission hearing of the suit and adjourned the case to 23‑6‑2001, on which date the learned counsel for respondent No.2 entered appearance and the case was set down for 28‑6‑2001 for hearing of the suit. On this date, the learned Banking Court after receiving the statement of accounts and hearing the preliminary arguments of the parties proceeded to fix the case for 3‑7‑2001 for passing an appropriate order.

5. Section 9(3) of Act XV of 1997 provides that when a plaint is presented to the Banking Court, then it will issue summons in Form No.4 in Appendix `B' to the Code of Civil Procedure (Act V of 1908) which shall be served upon the defendant through the bailiff/process‑server of the Banking Court by registered post acknowledgement due, by Courier and by publication in one English language and one in Urdu language daily newspaper and service duly effected in any of the aforesaid modes shall be taken to be valid service for the purposes of this Act. Section 9(4) aforementioned Act provides that the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court to defend the suit, and in default of his doing so, the allegations of fact in the plait shall be deemed to be admitted. Section 10 provides that the Banking Court, upon an application, filed by the defendant within 21 days, shall grant leave to defend the suit if a serious and bona fide dispute is raised thereby.

6. In the above perspective, when the procedure adopted by the learned Banking Court, which is established and created under section 4 of the Act XV of 1997, is placed in juxtaposition of the above narrated provisions of the same Act, the only irresistible conclusion which can be drawn therefrom, is that the procedure adopted by the learned. Banking Court was unprecedented and against the mandatory provisions of law. It is discernible from the record that the learned Banking Court, on presentation of the plaint, did not at all, advert to the adoption of the procedure as prescribed under section 9 of the said Act and, in his own Wisdom, evolved a procedure, which is of course alien to the provisions of Act XV of 1997 and even to the provisions of Code of Civil Procedure. Undoubtedly, the Banking Court is a creation of Act XV of 1997 and as such is bound by the procedure provided under the said Act.

7. The argument of the learned counsel for respondent No.2 that the learned Banking Court can reject a plaint under Order VII, rule 11, C.P.C. has no force. Needless to mention that Act XV of 1997 is a special statute, the provisions of which shall have an overriding effect upon the provisions of general Il law. The Banking Court cannot deviate from the procedure provided by Act XV of 1997 for adjudication of suit, filed before it by the customer or by a Banking Company. Undoubtedly, a Banking Court can exercise the powers vested in a Civil Court in the Code of Civil Procedure but that does not mean that the special mandatory provisions will give way to the provisions of C.P.C. It is settled law that if on any point, the special law does not provide the remedy, in that case, the provisions of Code of Civil Procedure can be made applicable. To further elaborate it may be mentioned that if there are special provisions available in a special statute is Act XV of 1997, to that extent, the provisions of C.P.C. are not attracted and if in the given 1 circumstances, the Act XV of 1997 does not provide any remedy or make any headway, in that case, the provisions of C.P.C. can be 'made applicable. I am of the view that the novel methodology adopted by the Banking Court to decide the suit involving valuable rights of the parties was neither in accordance with the provisions of Act XV of 1997 nor warranted under the provisions of Code of Civil Procedure and such course of action adopted by a Court cannot be countenanced under any stretch' of imagination. I am of the considered view that in the present case, the Banking Court was bound to adopt the procedure for the service of summons and for deciding the suit as prescribed under section 9 of the Act XV of 1997 and since the said procedure, which is mandatory in nature, was not adopted by the learned Banking Court, therefore, the entire proceedings undertaken by this Court was not in accordance with law and, I thus, cannot be maintained.

8. In view of the above reasons and conclusions, the writ I petition is accepted and the entire procedure/ action undertaken by the learned Baking Court in proceeding with the suit, filed by the petitioner, against respondent No.2, are vitiated and declared to be illegal and without lawful authority. The result would be that the suit (No.263 of 2001 titled Ahmed Murad Malik v. Small Business Finance Corporation) shall now deem to be pending before the Banking Court No. V, Lahore, constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001, who shall decide the suit in accordance with the provisions of Ordinance XLVI of 2001. No order as to costs. S.K.A./A‑338/L Petition accepted.