P L D 2016 Lahore 168 (PLP)

ATIR MAHMOOD, J.

This appeal is directed against judgment dated 24.04.2008 passed by learned District and Sessions Judge/Consumer Court, Lahore whereby he accepted complaint petition of the respondent.

2. Brief facts leading to filing of this appeal are that the respondent-complainant filed a complaint against the appellants with the assertions that he held a Master Credit Card of appellant bank (Askari Bank) since September, 2006; that since the previous card expired, he was issued a new card on 07.09.2006; that he approached the helpline for activation of the new card when he was informed that, his old credit card had exceeded the limit and transactions of Rs.40,000/- have been made over it; that the complainant on checking found that his card had lost somewhere; that he accordingly requested the bank for blocking the old credit card; that on inquiry, the complainant came to know that his old credit card was used on the night falling between 5th and 6th of September, 2006 on outlets of Zaka Pharmacy, Mehar Gas Station, Yasir Electronic and Bata Pakistan Limited; that the complainant corresponded with the appellants but to no avail.

3. The complaint was contested by the appellants. The respondent produced the evidence which was recorded, however, no evidence was led by the appellants. Thereafter, learned consumer court heard both sides and proceeded to allow complaint in the terms that the appellant bank would not recover the disputed amount of Rs.40,000/- from the respondent rather he will pay Rs.10,000/- as costs vide order dated 24.04.2008. Hence this RFA.

4. Learned counsel for the appellants submits that the complaint was time barred; that the consumer court had no jurisdiction to deal with the matter as even if there was any grievance, this comes within the domain of banking court; that admittedly, the card has been used before report of loss of card was made; that the conduct of the complaint petitioner is not free of suspicion; that he even did not surrender the old card; that there was a contract between the parties according to which, the respondent was liable to make payment in question; that the learned consumer court had erred in law while passing the impugned order, therefore, this appeal be allowed, the impugned order be set aside and the complaint of the respondent be dismissed.

5. On the other hand, learned counsel for the respondent has vehemently opposed this petition while supporting the impugned order.

6. I have heard the arguments of learned counsel for the parties and also perused the record.

7. The impugned order was passed by learned consumer court in a complaint under Section 25 of the Punjab Consumer Protection Act, 2005 whereagainst an appeal lies as per Section 33 of the Act ibid. This appeal was to be treated by the Office of this Court as an FAO but the instant appeal is marked as RFA. I am not going to change nomenclature of the appeal at this stage as it may cause inconvenience to the parties. However, I am deciding this RFA treating it as an FAO.

8. There is no denial to the fact that the credit card was valid till expiry of September, 2006. Since the old credit card was going to expire, the respondent was issued a new card on 07.09.2006. Till then, there was no objection by the respondent as to misuse of his old card. It is version of the complainant himself given in the complaint that on the day of receipt of the new card, i.e. 07.09.2006, he approached the bank for activation of his new card and also inquired about his outstanding balance when he was informed about transactions of Rs.40,000/-. The complainant checked his old credit card and came to know that his card had lost somewhere. Thereafter, the complainant asked the helpline for blockade of his card and disputed the transactions of Rs.40,000/- stating that these were not made by him. The said lines are sufficient to reach a definite conclusion that the complaint petitioner requested the appellant bank for blockade of his card when the card had already been used for alleged unauthorized transactions. I am of the considered view that the bank could only be held responsible for stopping the unauthorized use of the card when it has been told about misplacing of the card. Since there was no intimation to the bank about loss of the card, the bank could neither stop the transactions nor be held responsible for the same. In the circumstances, one may even presume that the card was used by the complainant petitioner himself or by some other body on his behalf for the disputed transactions and then the fake report of loss of card was lodged with the bank by the respondent to avoid payment of the same.

9. There are also certain legal aspects of the case which have been ignored by learned consumer court. Admittedly, the matter was between a customer of the bank with the bank which is a financial institution. The matters pertaining to the financial institutions with their customers can only be taken up and decided by the banking court as provided under Section 7(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which reads as under: "7(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 Banking Court extends under this Ordinance including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court." Whereas the consumer court has no unfettered powers and there are certain restrictions as embedded in Section 3 of the Punjab Consumer Protection Act, 2005 which reads as under: "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.". Keeping in juxtaposition the above two provisions of different statutes, there remains no doubt that the consumer court had no jurisdiction to deal with the matter, as such, it has transgressed its powers and erred in law while assuming its jurisdiction in the matter. On this score alone, the complaint was liable to be dismissed. Needless to mention here that being a Federal Statute, Financial Institutions (Recovery of Finances) Ordinance, 2001 has precedence over the Consumer Protection Act, 2005 which is Provincial Statute as provided under Article 143 of the Constitution of Islamic Republic of Pakistan, 1973.

10. Furthermore, the cause of action according to the respondent grievance petitioner himself arose on 07.09.2006 but the complaint was filed on 14.09.2007 with delay of about one year. Under Section 28 of the Punjab Consumer Protection Act, 2005, there was only 30 days time available to the complainant to file the grievance petition but he waited for about one year on the pretext that he used to issue notices/letters to the appellants (Mark 'A' to Mark 'F'). I am of the considered opinion that/ mere issuance of subsequent notices, after specific denial by the Bank in response to the notice dated 09.09.2006 (Mark-A), did not extend the period of limitation. The legislation in its wisdom has specifically fixed the time of 30 days from date of arising of cause of action. Under the said provision of law, the consumer court may allow extension in time for filing the complaint but there is nothing on record even to suggest that any such move was made by the respondent or the period in filing the complaint was condoned by the court. In the circumstances, the complaint being barred by time should have been dismissed on this score as well.

11. For what has been discussed above, the learned consumer court has erred in law while passing the impugned order. Therefore, this appeal is allowed, the impugned order is set aside and the complaint of the respondent is dismissed. SL/A-156/L Appeal allowed.