P L D 1993 Karachi 107 (PLP)
Messrs SHAF10 HANIF (PV]r.) LTD., KARACHI‑‑Plaintiff Versus BANK OF CREDIT AND COMMERCE INTERNATIONAL
| Citation | P L D 1993 Karachi 107 (PLP) |
| Forum / Court | |
| Bench Members | Wajihuddm Ahmed, J |
| Parties | Messrs SHAF10 HANIF (PV]r.) LTD., KARACHI‑‑Plaintiff Versus BANK OF CREDIT AND COMMERCE INTERNATIONAL |
Q1: What are the key laws and sections cited in P L D 1993 Karachi 107 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1993 Karachi 107 (PLP)?
The case was heard and decided by the bench comprising: Wajihuddm Ahmed, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1993 Karachi 107 (PLP) (Messrs SHAF10 HANIF (PV]r.) LTD., KARACHI‑‑Plaintiff Versus BANK OF CREDIT AND COMMERCE INTERNATIONAL). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Headnotes / Summary
(a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑ ‑‑‑‑ S.6 ‑‑‑ Banking Tribunals Ordinance (LVIII of 1984), S.5 ‑‑‑ Civil Procedure Code (V of 1908), S.9 ‑‑‑ Jurisdiction of High Court whether taken away by or under the Banking Tribunals Ordinance, 1984 in matters relating to recovery of Bankloan ‑‑‑ If so, extent ‑‑‑ While jurisdiction of a Banking Tribunal, purports to be exclusive in matters failing within the parameters of its authority, what that jurisdiction precisely is, has not as such, been categorically spelt out‑‑ Where intendment of Legislature was clear and words spelling out ouster could readily and conveniently be found in it, same would suffice to constitute ouster ‑‑‑ Civil Courts alone would have jurisdiction, if called upon to determine as to how far the statute in question, had curtailed their jurisdiction ‑‑‑ Despite purported exclusiveness of jurisdiction conferred on the Banking Tribunals by Banking Tribunals Ordinance, 1984, ouster of Civil Courts' jurisdiction was only conditional upon the functioning of the Banking Tribunals ‑‑‑ Remedy vesting in Civil Court was, thus, not totally barred ‑‑‑ Ouster of jurisdiction of Civil Court is not to be readily inferred ‑‑‑ Where a domestic forum had exceeded its jurisdiction or that jurisdiction did not arise, at the overall jurisdiction of Civil Courts was extended thereto. Perusal of sections 5(l)(a) and 5(3), Banking Tribunals Ordinance, 1984, postulates that while the jurisdiction of a Banking Tribunal purports to be exclusive, in matters falling within the parameters of its authority what that jurisdiction precisely is has not, ‑ as such, been categorically spelled out. However, since the jurisdiction of a Civil Court may be barred either expressly or impliedly, though in either case it should ‑be clearly and manifestly barred categorisation by nomenclature of the Tribunal's jurisdiction may not have been essential for exclusion of the jurisdiction of Civil Courts (section 9, C.P.C.). Speaking broadly, if intendment of the legislation was clear and words spelling out ouster could readily and conveniently be found in it that would suffice to constitute ouster. Thus, section 5(l)(a) of the Banking Tribunals Ordinance, 1984 implicitly spells out the ambit of the jurisdiction of a Banking Tribunal namely, "a claim filed by a Banking Company against a customer in respect of, or arising out of, finance, provided by it". This, however, has been postulated not direclty but with regard to the exercise of powers of a Banking Tribunal by invoking powers similar to those of a Civil Court under the Code of Civil Procedure. Like, as regards procedure of the Tribunal, is the effect of ‑section 5(l)(d); the former provision, apparently, designed to achieve conferment of jurisdiction on a Banking Tribunal. Upon this follows section 5(3), Banking Tribunal's Ordinance, 1984 excluding the jurisdiction of all Courts "with respect to any matter to which the jurisdiction of a Banking Tribunal extends This method of conferment of jurisdiction, and exclusive at that, was not without legislative precedent. \ The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. Only the nature, implications and incidents of such businesses, distinguish these statutes and furnish the basis which determine whether one or the other may be attracted for seeking legal relief. Comparison would reveal that the common denominators in these enactments were a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in case of disputes. If it was a "loan" based on interest etc., which was sought to be recovered or questioned, the 1979 Ordinance would be attracted but if it was "finance" of a non‑interest bearing character, remedy by a banking company was to be sought under the 1984 statute, for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Loan" has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in the 1979 and 1984 statutes. in relation to a claim filed by a banking company against a "customer" in respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of section 5(l)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction was further confirmed when section 5(3) of the Banking Tribunals Ordinance, 1984 made the Tribunal also Judge of "the existence or otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking.Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic Tribunal, unless otherwise provided, could not be Judge of its own jurisdiction. Nonetheless, but conversely, it would still remain for the Civil Courts to see, if called upon to do so, as to how far the statutes had operated to curtail their jurisdiction. Banking Tribunal, relevant to the same provisions, has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be relating to "finance" provided by the banking'company to the "customer". The omission appears to be deliberate because in the same context the equivalent provision in the Banking Companies (Recovery of Loans) Ordinance namely, section 6(l)(a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a "borrower" or by a "borrower" against a banking company pertaining to a "loan" contracted within the terms of such Ordinance. Where a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance" provided to him and covered by the Ordinance, he could not file such an independent suit before a Banking Tribunal. It is now well‑settled that tribunals of exclusive jurisdiction cannot be tribunals of unlimited or infinite jurisdiction and their ambit of operation, even if exclusive, has to be specific and is to be confined strictly within the four‑corners of the legislation creating them and conferring jurisdiction in relation to them. Where a new right is created by a statute or a new duty or liability is imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement, an aggrieved party can seek only such remedy as is provided by that statute and except so far as otherwise provided in the enactment, either expressly or by necessary implication, the jurisdiction to adjudicate upon the right or to enforce the remedy is exclusive in the machinery set up by the statute. Ouster of jurisdiction of Civil Courts in such cases is implicit and no express terms need be explored. At the same time, where a right or duty has existed before the statute h* come to occupy the field, the ouster, even when explicit, was conditional and dependent upon the functioning of the forum introduced by the statute. As to the present legislation, however, neither the term "customer" nor the notion of "finance" nor participation between a banking company and its customer are by any means new. Relevant to banking companies and their customers, the Banking Tribunals Ordinance, 1984 merely codifies the law and regulates the procedure for enforcement and that also to the limited extent of remedies provided to banking companies against customers and not vice versa. In spite of purported exclusiveness of jurisdiction conferred on the Banking Tribunals by the Ordinance the ouster of Civil Courts' jurisdiction is, therefore, only conditional upon the functioning of the Tribunal. The remedy vesting in Civil Courts is thus not totally barred. In matters, covered by the exclusive jurisdiction of a Banking Tribunal, entertained in a Civil Court for want of availability of the statutory machinery, the jurisdiction of the Civil Court is only of a stop‑gap character and should cease when the requisite forum becomes available for providing redress, all antecedent orders and proceedings in the Civil Court remaining valid and binding: The principle seems to be that when a suit was cognizable partly in a special statutory jurisdiction and partly in a Civil Court or where a suit wias based on a cause of action with respect to which relief could be granted by a Civil Court only and merely a connected relief was available in a special jurisdiction, it is the Civil Court alone where the lis lies: It is also a fundamental principle that ouster of jurisdiction of Civil Courts was not readily inferred and in matters where a domestic forum had exceeded its jurisdiction or that jurisdiction did not arise at all, the overall jurisdiction of Civil Courts would extend. The two legislations Banking Companies (Recovery of Loans) Ordinance, 1979 and Banking Tribunals Ordinance, 1984 being in pari materia and touching similar subject‑matters can be looked at in juxta‑position as an extrinsic interpretative aid. A provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. It was merely qualitative. in nature and no more. As to the effect of the two provisos in the equivalent sections of these statutes viz. section 6(4), Banking Companies (Recovery of Loans) Ordinance, 1984 and section 5(3), Banking Tribunals Ordinance, 1984 it is this: Such provisos merely exhibit a slight variation of language without conveying any different meanings. Thus, while the proviso to section 6(4) of the 1979 Ordinance saves the right of a banking company to seek any remedy before any Court that may be available to it under he law by which the banking company may have been established or under that I as amended from time to time, the proviso to section 5(3) of the 1984 Ordinance saves the right of a banking company to seek any remedy before any Court or otherwise that may be available under the I by which the banking company may have been established or under that la as amended from time to time. The expression .or otherwise" in the 1984 statute is thus new. Disjunctive "or" can often be used as a conjunctive just as the conjunctive "and" may be used as a disjunctive. It is in context that each word has to be interpreted. Section 6(4) of the 1979 Ordinance and . section 5(3) of the 1984 Ordinance in relation to the provisos in either of them virtually have the same impact. In the context of the 1979 statute the legislature, it would seem, wanted to save the jurisdiction of a Court and of the banking company itself conferred by the law which created any such company. While the position of such Court was clearly stated, the Banking Companies Ordinance of 079 attempted to create that effect in respect of the banking company itself by using the words "or under that law, as amended from time to time". However, an impression was generated that the quoted words only saved the powers of a Court under a law which created a company as also under the same law, as amended from time to time and that erroneous outcome was fortified when the intendment was not clarified in the clause (h) of such proviso where the jurisdiction of the company under its parent statute was not saved in so many words. This apparent lacuna/want of precision which the proviso to section 5(3) of the Banking Tribunals Ordinance seeks to fill or achieve by, in the first place, inserting the words "or otherwise" in clause (a) of the proviso to section 5(3) and follows up in part (b) thereof by clarifying and protecting the jurisdiction, apart from that of the Court covered by clause (a) of the proviso, also that of the banking company with reference to the law under which the company may have come to be established. Section 6(l)(a) in the Banking Companies (Recovery of Loans Ordinance, 1979 also provided the ingredient of jurisdiction as being "a claim riled by a banking company against a borrower or by a borrower against a banking company". Each of these sections operates to exclude the jurisdiction of every other 'Court by enacting that no such Court "shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction" of a Special Court or a Banking Tribunal, as the case may be, "extends". Manifestly no Court is either to have or to exercise any such jurisdiction, two obviously distinct situations and for that purpose it was not necessary under these provisions that the jurisdiction of a Special Court or a Banking Tribunal may have actually come to be invoked, but it would suffice merely if that jurisdiction, in a particular matter, merely "extends". Questioning the purported ouster, reference is then made to section 3 in the 1984 Ordinance, exactly the same provision occurring in the similar section of the 1979 legislation, enacting that the provisions of the Ordinance were in addition to and not in derogation of other laws; but that is subject to the rider "save as otherwise provided" in each Ordinance. The implications are obvious: other laws would remain unaffected only if nothing to the contrary is envisioned in the Ordinance. Industrial Development Bank of Pakistan v. Allied Bank PLD 1986 SC 74; United Bank Limited v. Akbar Agencies Limited PLD 1987 Kar. 81; Habib Bank Ltd. v. Cougdthene Chemical Industries PLD 1987 Lah. 567; Mindai v. Sajid Ali AIR 1930 Oudh 69; Sukhdev v. Basdev AIR 1935 All. 594; Province of East Bengal v. Dewan A. Alim (1957) 9 DLR 26; Chalna Fibre Co. v. Abdul Jabbar PLD 1968 SC 381; National and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106; United Bank Ltd. v. Abdul Rashid 1987 CLC 331; United Bank Ltd. v. Rehana Ra7a PLD, 1983 Kar. 467; Yasmin Nighat v. National Bank of Pakistan PLD 1988 SC 391 and H.T.M. Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 ref. (b) Interpretation of statutes‑‑ ‑‑‑‑ Ouster of jurisdiction ‑‑‑ Where intendment of the legislation was clear and words spelling out ouster could readily and conveniently be found in it, same would suffice to constitute ouster. (c) Interpretation of statutes‑‑ ‑‑‑‑ Where a new right was created by a statute or a new duty or liability was imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement, an aggrieved party could only seek such remedy as was provided by that statute and except so far as otherwise provided in the enactment, either expressly or by necessary implication, jurisdiction to adjudicate upon the right or to enforce the remedy was exclusive in the machinery set up by the statute. (d) Interpretation of statutes‑‑ ‑‑‑‑ Provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. (e) Jurisdiction‑‑‑ ‑‑‑‑ Tribunals of exclusive jurisdiction cannot be Tribunals of unlimited or infinite jurisdiction and their ambit of operation has to be specific and has to be confined strictly within the four corners of legislation creating them. (f) Banking Tribunals Ordinance (LVIII of 1984)‑ ‑‑‑‑ Preamble ‑‑‑ Constitution of Pakistan (1973), Arts. 212 & 212‑B ‑‑‑ Vires of the Banking Tribunals Ordinance, 1984, on the touchstone of Arts.212 & 212‑B of the Constitution ‑‑‑ Banking Tribunals could not be constituted through a law framed under Arts. 212 & 212‑B of the' Constitution ‑‑‑ Tribunals having Constitutional mandate have peculiarities of their own and no one could claim that status for Banking Tribunals‑‑‑Tribunals could, however, be constituted through routine legislation and that was the source of the Banking Tribunals Ordinance, 1984. (g) Civil Procedure Cod, IV of 1908) S. 9 ‑‑‑ Constitution of Pakistan (1973), Arts.175(2), 192(2)(3) & 199‑‑ Original civil jurisdiction of High Court does not arise directly from the Constitution, but same was conferred by law and could be curtailed and taken away by law. (h) Banking Tribunals Ordinance (LVIII of 1984)‑ ‑‑‑‑ Preamble, S.5‑Objcct, scope and import of the Ordinance ‑‑‑ Banking Tribunals Ordinance,, 1984, has provided part of the enforcing machinery itself, for the rest, recourse becomes available to Civil Courts. Habibullah v. Habib Bank Ltd. PLD 1990 Pesh. 17 rel. (i) Civil Procedure Code (V of 1908) ‑‑‑‑
0. VIII, R.6 ‑‑‑ Banking Tribunals Ordinance (LVITI of 1984), Ss.3 & 5‑‑ Jurisdiction to entertain set‑off by Banking Tribunal ‑‑‑ Essentials ‑‑‑ 4urisdiction to entertain a set‑off would arise from the jurisdiction to maintain the main suit ‑‑‑ Where such suit‑ lies, set‑off would fall in line ‑‑‑ Such rule would be applicable in the general jurisdiction of Civil Courts as also in the special jurisdiction under Banking Tribunals Ordinance, 1984, because of'Ss.3 & 5 of the Ordinance ‑‑‑ As ' to ~ counter‑claims or cross‑suits, same would be maintainable only if an independent suit in a particular jurisdiction was competent ‑‑‑ Pendency of earlier suit, even ‑if arising from some transaction would be irrelevant. j) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑ S. 10 ‑‑‑ Stay of suit ‑‑‑ Later suit raising the same or similar issues between the same parties or those claiming under them, irrespective of the Court (in Pakistan) where it was instituted, could be, stayed to await the result of the earlier pcnding suit. Jannana 'De Malucho Tex1fle Mill Ltd. v. Wiqar Ahmed PLD 1972 SC .34; Arifa Begum v. Khu lque Muhammad Naqvi PLD 1909 Kar. 193; Pakistan v. Agro Marketing Corporation 1981 CLC 443; S.M. Akil Fikree V. Muhammad Qamaruzzaman PLD 1982 Kar. 745; Habib Bank Ltd. v. Ali Molitaram Naqvi PLD 1987 Kar. 102 and Muhammad Arif v. Abdul Oayyum 1991 CLC 442 ref. (k) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑ ‑‑‑‑ S.6 ‑‑‑ Banking Tribunals Ordinance (LVIII of 1984), S.5 ‑‑‑ Transfer of suit to proper jurisdiction ‑‑‑ When suits for recovery of Bank loan were instituted in the High Court in the absence of Banking Tribunals becoming functional, jurisdiction to entertain then being available, plaint could not be returned to p1laintiff and only a transfer could be made or suit could be Tcmitted to proper jurisdiction ‑‑‑ Specified suits pending in High ourt were transferred to Banking Tribunal. Harnam Das v. Salamat Rai AIR 1952 Pepsu 105; National Bank of Pakistan v. Humayoun Sultan Mufti 1984 CLC 1401; United Bank Ltd. V. Akbar Agencies Ltd. PLD 1987 Kar. 81; National and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106 and United Bank Ltd. v. Abdul Rashid 1987 CLC 331 ref. Muhammad Sharif, Syed lqbal Ahmad, B.M. Bangash, A.I. Chundrigar, Niaz Ahmad Khan, Mansoorul Arfin, Iqbal Kazi~ Muhammad Ah Sayeed, Anwar Man%oor, Mustafa Lakhani, Mchmood Iqbal, Fazle Ghani Khan, Abdul Rauf, Habibur Rehman, Muhammad Saleem, A.R. Akhtar for the Parties.
Judgment & Decree
In these suits more or less similar questions of law and fact arise, at least at this stage of the proceedings. Such have a nexus with the jurisdiction of the Banking Tribunals under the Banking Tribunals Ordinance, LVIII of 1984. A common plea is that the relevant suit at the time it was instituted in this Court could either not be Filed before the Banking Tribunal under the said Ordinance, the tribunal not being functional till 1-8-1991, when the present incumbent, Mr. Justice (Retd.) K.A. Ghani, was appointed or the jurisdiction of such tribunal, according to other contentions raised, in the applicable suits, was ab inilio not attracted at- all. Before dilating upon such questions of jurisdiction and ancillary matters it will be appropriate to briefly detail the facts of each case, as such facts figure on the record:-- (i) Suit No.672/1990. Shafiq Hanif(Pvt0 Limited v. The B.C.C,I. is a suit for recovery of' Rs.1,393,802 and injunction. This suit proceeds on the ground that the plaintiff, which is an exporter shipped certain goods to Hong Kong and handed over the shipping documents to the defendant-Bank for collection of payment under an arrangement with reference to the Expom Re-finance Scheme whereupon a maximum of 6% was chargeable but the bank, transgressing, has raised claim at 16% per annum. It is further urged that the bank could not despatch the shipping documents before crediting due "finance". In the written statement submitted by the defendant-Bank the suit is claimed to be non-maintainabic for want of jurisdiction and absence of cause of action. As regards providing re-finance before despatch of the shipping documents it is said that such was in the discretion of the bank. It is claimed that the plaintiff owes a sum of Rs.5.489 mil1ion to the defendant with mark-up thereon. (ii) Suit No. Nil of PNI B.C.C.I. v. Shafiq Hanif ( .) Ltd. is the Bank's counter-suit for recovery and was filed in this Court on 10-6-1991 because then the Banking Tribunal was non-functional. Mr. Muhammad Sharif appear~ for Mis. Shafiq Hanif (Pvt.) Ltd. and Mr. Syed Iqhal Ahmed represents the B.C.C.I. though in the bank's suit M/s. Mansoor Ahmed Khan & Co. act for Shafiq Hanif (Pvt.) Ltd. and others. iii) Suit No.736 of 1990. B.-C.C.I. v. Fine Food Industries (Pvt.) Limited and other : Instituted on 30-6-1990, this is a suit for recovery of Rs.29,541.572 under the Banking Tribunals Ordinance, 198A. In the written statement filed by the defendants Nos.1 to 3 the claim on merits is denied, as allegedly incorrect and improper debit entries are made and credits arc not dulv reflected. The plaintiff is represented by M/s. Liaquat Merchant & Co., the defendants Nos.1 to 3 appear through Mr. B.M. Bangash, Mr. A.I. Chundrigar is for defendant No.7 (IDBP) and Mr. Niaz Ahmad Khan has filed power for the defendants Nos.4 to 6 and 8, the defendant No.8 being the Agricultural Development Bank of Pakistan, a prior mortgagee. iv) Suit No.203 gL12L)1_,U.B.L, v. Entre2rises VI and another. This suit for recovery in the sum of Rs.21.350,10) was instituted on 1.3-10-1990 and the claim is based on non-interest demand finance in circumstances that the defendant No.2 allegedly informed the plaintiff bank that he wanted to purchase from the defendant No.1 truck chassis/vehicles of the total value of Rs.20 million and that on approval of finance the plaintiffs, do pay such amount to the defendant No.l. The two defendants arc said to have assured the Bank that the defendant No.1, as seller, shall hand over all papers pertaining to the chassis/vchicles to the bank, which papers would be in the joint names of the plaintiff-Bank and the defendant No.2. Pay orders were, accordingly, issued and the defendant No.1 encashed the same. The documents pertaining to the sale of the chassis/vehicles were, however, not- forwarded to the plaintiffs. Later the defendant No-I completely denied factum and even knowledge of the transaction. The defendants arc, therefore, claimed to have colluded in causing loss to the plaintiff, giving rise to the claim in suit. No written statement seems to have been filed. The plaintiff-Bank is represented by M/s. Mansoorul Arfin and Habibullah Samo while Mr. S. Iqbal Ahmed appears for the defendant No.1 and Mr. IqbaI Kazi for the defendant No.2. Suit No.432 Of 199I,_V_..B-L, v. MZs. Alintco (Pvt.) Ltd. and others.- L This suit, brought on 12-3-1991, for recovery of Rs.3,70,40.466 under sections 6 and 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979 has only a remote nexus with a cash credit finance limit because. in November, 1987 the defendants fully adjusted the cash credit but continued to enjoy F.T.R. (Finance Trust Receipts) facility. A fresh "finance" agreement-was concluded on .30-6-1989. In the period' following the defendants made only nominal payments giving rise to the claim in suit. No written statement has been filed by the defendants. M/s. Mansoor Ahmed Khan & Co. are for the plaintiff whereas Mr. Mustufa Lakhani represents the defendants Nos.1 to 4. (vi) Suit No.4-33 of 1991, N.D.F.C. v. M/s, Paksaco Limited and other The suit, instituted on 1-4-1.991, is for recovery of Rs-23,782.'Xg under the Banking Tribunals Ordinance. 1984. Tiie plaintiff, which is a banking company, included in the schedule to the Banking Tribunals Ordinance, 1994. is stated to have granted to the defendant No.1 working capital finance to the tune of Rs.20.000,000 on 9-6-19% against the securities detailed in para.6 of the plaint and the personal guarantees dated 14-6-19% of the defendants Nos.2 to
8. The finance disbursed to the defendant No.1 is claimed to have matured on October 16, 1990 but the defendants failed to liquidate their liability. In defence, the claim is repudiated more or less on technical grounds. Mr. M. lqbal and Mr. Fazle Ghani Khan are for the plaintiff and defendants. (vii) Suit No.155 of 1992, Muhammad Bashir v. The Bank of Oman Limited, was instituted on 23-2-1992. in this suit what is questioned is the purported grant of finance by the defendant-Bank to the plaintiff which, apparently, is the subject-matter of Suit No.923 of 1991, currently pending before the Banking Tribunal. It is, inter alia, urged that th~ defendant-Bank has manoeuvred to bring the subject-matter of the dispute within the purview of the concept of "Finance", so as to invoke the jurisdiction of the Banking Tribunal under the 1984 Ordinance. It is urged that at the time of the relevant transactions there were no goods to be sold or purchased and, therefore, there was no contract of sale so as to give rise to the pristine concept of "finance". Declaration is sought that the relevant documents detailed in the plaint are void and cancellation thereof is claimed. No written statement seems to have been filed in the suit. Mr. A. Rauf is for the plaintiff and Mr, Habibur Rehman represents the defendanf-Bank. (viii) Suit No.167 of 1992, Abdul Aziz Nawab Khan & Co. v. The Habib Bank Limited.--This suit, instituted on 2-3-1992, is for rendition of accounts and delivery of goods, the plaintiff being an importer of Iron and Steel Scrap, from time to time and on account, clearing the finance due and correspondingly lifting the imported goods from the godowns of the defendant-Bank, where such were lying pledged. The defendant, allegedly, failed on occasions to issue necessary delivery orders and the plaintiff resultantly suffered. Decree is sought essentially for rendition of accounts. Written statement has been riled by the defendant-Bank in which. principally, it is urged that the suit is barred under the Banking Companies (Recovery of Loans) Ordinance. Mr. Muhammad Salim acts for the plaintiff while Mr. A.R. Akhtar appears for the defendant-Bank." Having dilated upon the salient factual features in these cases, the various questions of law may now be specifically set out: (i) To what extent, if at all, the jurisdiction of this Court has been taken away by or under the Banking Tribunals Ordinance? (ii) Where in a suit falling within the jurisdiction of this Court or within that of the Banking Tribunal a set-off is claimed or a counter-claim is lodged when an independent suit incorporating such set-off or counter-claim may not have been cntcrtainable whether such set-off or counter-claimean be entertained? (iii) In cases where successive/counter-suits are Filed before this Court and the Banking Tribunal or vice versa and each is competently filed covering the same or similar subject-matter between the same or similar parties, how, if at all, conflicting decisions may be avoided? (iv) In what manner is a suit to he dealt with which at the time when it was instituted was properly instilued in this Court but subsequently, factua impediments giving jurisdiction to this.Court having been removed such suit becomes triable exclusively before the Banking Tribunal? (i) TO WHAT EXTENT, IF AT ALL, THE JURISDICTION . As to the ambit of jurisdiction of Banking Tribunals the applicable provisions are these: THE BANKING TRIBUNALS OR DIN.ANCE 1984 (2) Definitions.
In this Ordinance, unless there is anything repugnant in the subject or context,-- (a) banking company' means- (b) 'Banking Tribunal' mean, tribunal established under section 4;' (c ) 'customer' means a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier; (d) 'commencing day' means.. (c) '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 any copy-right,". bills of exchanges, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode anther 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, and I (f) rules' mean. 3) Ordinance not to derogate frQm_gther laws.--The provisions of this Ordinance shall he in addition to and, save as otherwise provided in t , his Ordinance, not in derogation of, any other law for the time being in force. (4) (5) Power i of Banking Tribunals.--(I) A Banking Tribunal shall-- (a) in the exercise of its civil jurisdiction have or exercise a claim filed by a banking company against a custom in respect of, or arisinig out of finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of I(M); (b). in the exercise of its Criminal Jurisdiction. (c ) exercise and perform such other powers. (d) A banking tribunal shall, in all matters with respect to which 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); 2) 3) No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the Jurisdiction Banking-Tribunal extends under this Ordinance, including a decision as to the -existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal: Provided that nothing in this subsection shall be deemed to affect. a) the right of a banking company to seek any remedy before any Court or otherwise that may be available under the law by which the banking company may have been established or under that law as amended from time to time ; or (b) the power or jurisdiction of the banking company or any Court such as is referred to in clause (a); or to require the transfer to a Banking Tribunal of any proceedings pending before the banking company or any such Court immediately before the commencing day." (Underlinings added) It will. he seen, upon a perusal of sections 5(1)(a) and 5(3) abovc-quoted, that while the jurisdiction of a Banking Tribunal purports to be exclusive in matters falling within the parameters of its authority what that jurisdiction precisely is has not, as such, been categorically spelled out. However, since the jurisdiction of a Civil Court may be barred either expressly or impliedly, though in either case it should be clearly and manifestly barred, categorisation by nomenclature of the tribunal's jurisdiction may not have been essential for exclusion of the jurisdiction of Civil Courts (section 9, C.P.C.). Objections in this behalf, which are being overruled, would come up for discussion below. For the present, speaking broadly, if intcndment of the legislation is clear and words spelling out ouster can readily and conveniently be found in it such would.suffice to constitute ouster. Thus, section 5(l)(a) of the Ordinance, reproduced above implicitly spells out the ambit of the jurisdiction of a Banking Tribunal namely: .,a claim riled by a Banking Company against -a customer in respect of, or arising out of, finance, provided by it". This, however, has been postulated not directly but with regard to the exercise of powers of a Banking Tribunal by invoking powers similar to those of a Civil Court under the Code of Civil Procedure. Like, as regards procedure of the Tribunal, is the effect of section 5(l)(d); the former provision, apparently, designed to achieve conferment of jurisdiction on a Banking Tribunal. Upon this follows section 5(3) excluding the jurisdiction of all Courts "with respect to any matter to which the jurisdiction of a Banking Tribunal extends ... ..... This method of conferment of jurisdiction, and exclusive at that, is not without legislative precedent. An identical legislative- device was used in the Banking Companies (Recovery Loans) Ordinance, 1979. Relevant postulates of such Ordinance, being useful even otherwise, as an interpretative, aid, may here be reproduced: THE BANKING COMPANIES (RECOVERY OF LOANS) ORDINANCE, 1979 1 (2) Definitions.
In this Ordinance, unless there is anything repugnant in the subject or context,-- (a) banking company' means. (b) 'borrower' means a person who has obtained a loan from a banking company and includes a surety or an indemnifier; I (c) commencing day means. (d) "loan" means. (i). an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking coml2nay to a borrower; (ii.) a guarantee, indemnity, letter of credit ... ... ... ... ... ... ... ... ... ... .... (iii) a benami loan, that is, a loan. ,(iv) any amount due from any borrower. (v) any loan due from any borrower. (e) 'rules' means .. ... ... ... ... ... ... ... (f,) 'Special Court' means ... ... ... ... ... ... ; Ordinance not to deroizate from other laws.
The provisions of this' Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.
4. Securing and repayment of loan ...
5. Omitted.
(l) A Special Court shall- (a) in the exercise of its civil jurisdiction have in respect of a claim filed a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of a loan, all the powers a. vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (b) in the exercise of its Criminal Jurisdiction; and (c) exercise and perform such other powers ... ... .. (2) (3) (4) No Court other than a Special Court shall have or exercise any jurisdiction with resMct to any matter to which the ourisdiction of a Special Court extends under this Ordinance. including a decision as t the cxistence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the riling of an arbitration award and proceedings 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: Provided that nothing in this subsection shall be deemed to affect
(a) the right of a banking 6ml2any to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or' (b) the jurisdiction of any Court such as is referred to in clause (a), or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day." (Under linings added) The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. It is only the nature, implications and incidents of such businesses, which distinguish these statutes and furnish the basis which determines whether one or the other may be attracted for seeking leg al relief. Comparison would reveal that the common denominators in these enactments are a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in case of disputes. If it is a "loan" based on interest etc., which is sought to be recovered or' questioned the 1979 Ordinance would be attracted but if it is "finance" of a non-interest bearing character remedy by a banking company is to be sought under the 1984 statute for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Law has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in the 1979 and 1984 statutes. An examination of the quoted provisions makes it obvious that in relation to a claim filed by a banking company against a "customer' in 'respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of 'sections 5(l)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction is further confirmed when section 5(3) of the 1984 Legislation makes the tribunal also Judge of "the existence or, otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic tribunal, unless otherwise provided, cannot be Judge of its own jurisdiction. Nonetheless, but conversely, it will still remain for the Civil Courts to see, if called upon to do so, as to how, far the statutes have operated to curtail their jurisdiction. Here, we at Once find that a Banking Tribunal, relevant to the same provisions, as referred has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be related to "finance" (as defined-) Provided by the banking company to the Customer". The omission appears to be deliberate because in the same Context the equivalent Provision in the Banking Companies (Recovery of Loans) Ordinance namely section 6(l)(a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a borrower" or by a 'borrower" against a banking company pertaining to a "loan contracted within the terms of such Ordinance. It follows that if a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance provided to him and covered by the Ordinance, he cannot file such an independent suit before a Banking Tribunal. It is now well-settled that tribunals of exclusive jurisdiction cannot be tribunals of unlimited or infinite jurisdiction and their ambit of Operation, even if exclusive, has to be specific and is to be Confined strictly within the. four corners of the legislation creating them and conferring jurisdiction in relation to them. May be taken up now the various objections the learned counsel have raised to urge that the ouster of jurisdiction of Civil Courts is not complete upon the terms of the Ordinance in question- it is a well-recognised principle that where a new right is created by a statute or a new duty or liability is imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement an aggrieved party can seek only such remedy as is provided by that statute and except so far as otherwise provided in the, enactment, either expressly or by necessary implication, the jurisdiction to adjudicate upon the right Or to enforce the remedy is exclusive in the machinery set up by the statute. Ouster of jurisdiction of Civil Courts in such cases is implicit and no express terms need be explored. At the same time, where a right or duty has existed before the statute has come k" Occupy the field, the ouster, even -hen explicit is conditional and dependent upon the functioning of the forum, introduced by the statute -Sultan Ali v Noor Hussain PLD 1949 Lahore 301 .Industrial Development Bank of Pakistan v- Allied Bank. PLD 1986 SC
74. As to the instant legislation, however, neither the term Customer" nor the notion of "finance" nor participation between a banking company and its customer are by any means new. Relevant to banking companies and their customers, as defined, the. Ordinance of 1984 merely codifies the law and regulates the procedure for enforcement and that also to the limited extent of remedies provided to banking companies against customers and not vice versa. In spite of purported exclusiveness of jurisdiction conferred on the banking Tribunals by the Ordinance the ouster of Civil court Jurisdiction is. therefore, only conditional upon the functioning of the tribunal. The remedy vesting in Civil Conrts is thus not totally barred. To this extent I agree with the contentions of Mr. Fazle Ghani Khan,' Mr. Mansoorul Arfin and Mr. Muhammad Sharif. However, learned counsel also maintain that once a lis, exclusively within the jurisdiction of such a tribunal, is entertained in a Civil Court while the tribunal is non-functional, it should be taken to its logical conclusion. The Civil Court, it is urged, is not a mere caretaker. I think to uphold this would involve unsettling the settled rules of construction is to me that in matters, covered by the exclusive jurisdiction of a Banking Tribunal, entertained in a Civil Court for want of availability of the statutory machinery, the jurisdiction of the Civil Court is only of a stopgap character and should cease when the requisite forum becomes available for providing redress, all antecedent orders and proceedings in the Civil Court remaining valid and binding: United Bank Limited v. Akbar Agencies Limited PLD 1987 Kar. 81, Habib Bank Ltd. v. Cougdthene Chemical Industries PLD 1987 Lahore 567, Another argument of the same and other learned counsel is that where in an action attracting the jurisdiction of a Banking Tribunal non cognizable matters happen also to come up for adjudication it is only in the Civil Courts that the remedy may be pursued. The principle seems to be that when a suit is cognizable partly in a special statutory jurisdiction and partly in a Civil Court or where a suit is based on a cause of action with respect to which relief can be granted by a Civil Court only and merely a connected relief is available in a special jurisdiction it is the Civil Court alone where the lis lies: Mindai v. Sajid Ali AIR 1930 Oudh 69, Sukhdcv v. Basdev AIR 1935 Allahabad
594. It is also a fundamental principle that ouster of jurisdiction of Civil Courts is not readily inferred and in matters where a domestic forum exceeds its jurisdiction or that jurisdiction does not arise at all the overall jurisdiction of Civil Courts extends: Province of East Bengal v. Dcwan A. Alim (1957) 9 DLR 26; Chaina Fibre Co. v. Abdul Jabbar PLD 1908 SC 381; National. and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106; United Bank Ltd. v. Abdul Rashid 1987 CLC
331. It will, however, remain to be seen whether within the somewhat enlarged compass of the legislation covering all suits by a banking company 'in respect of or arising out of finance' any of the suits in hand do not fall. On the question of ouster, it has next been contended that whereas the Banking Companies (Recovery of Loans) Ordinance, 1979, provided for transfer of cases falling within the jurisdiction of the Special Court from the Civil Courts to that Court there is no corresponding provision in the Banking Tribunals Ordinance, 1984. It has also been contended that section 5(3) and in particular the proviso thereof is a departure from what was contemplated in the corresponding provision of section 6(4) of the Banking Companies Ordinance. The two legislations being in pari materia and touching similar subject-matters can be looked at in juxtaposition as an extrinsic interpretative aid. Even so, the result is not the same as it is argued to be. A provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. It is merely qualitative in nature and no more. Nothing, therefore, turns on this distinction. As to what is the effect of the -two provisos in the equivalent sections of these statutes it is this: Such provisos merely exhibit a slight variation of language without conveying any different meanings. Thus, while the proviso to section 6(4) of the 1979 Ordinance saves the right of a banking company to seek any remedy before any Court that may be available to it under the Law by which the banking company may have been established or under that law as amended from time to time, the proviso to section 5(3) of the 1984 Ordinance saves the right of a banking company to seek any remedy before any Court or otherwise that may be available under that law by which the banking company may have been established or under that law as amended from time to time. The expression "or otherwise" in the 1984 statute- is thus new. On the language, Mr. Anwar Mansoor maintains that in virtue of the proviso to section 5(3) nothing in that subsection shall be deemed to affect 'the right of a banking company to seek any remedy before any Court ... .... and there one of the contingencies stops the disjunctive 'or' contemplating thereafter another independent postulate. In other words, according to him if a banking company, in its discretion, chooses to approach any Civil Court in preference to a Banking Tribunal it can do so under the 1984 Ordinance though that cannot be done if the matter was covered by the Ordinance, 1979. The argument is untenable. Disjunctive "or" can often be used as a conjunctive just as the conjunctive "and" may be used as a disjunctive: It is in context that each word has to be interpreted. It appears to me that, in effect, section 6(4) of the 1979 Ordinance and section 5(3) of the 1984 Ordinance in relation to the provisos in either of them virtually have the same impact. In the context of the 1979 statute the legislature, it would seem, wanted to save the jurisdiction of a Court and of the banking company itself conferred by the law which created any such company. While the position of such Court was clearly stated, the Banking Companies Ordinance of 1979 attempted to create that effect in respect of the banking company itself by using the words "or under that law, as amended from time to time". However, an impression was generated that the quoted words only saved the powers of a Court under a law which created a company as also under the same law, as amended from time to time and that erroneous outcome was fortified when the intendment was not clarified in the clause (b) of such proviso where the jurisdiction of the company under its parent statute was not saved in so many words. It is, to my mind, this apparent lacuna/want of precision which the proviso to section 5(3) of the Banking Tribunals Ordinance seeks to fill or achieve by, in the first place, inserting the words "or otherwise" in clause (a) of the proviso to section 5(3) and follows up in part (b) thereof by clarifying and protecting the jurisdiction, apart from that of the Court covered by clause (a) of the proviso, also that of the banking company with reference, to the law under which the company may have come to be established. Another argument, and this by Mr. B.M. Bangash, advanced in support of the continuation of the jurisdiction of this Court is that section 5(l)(a) of the Banking Tribunals Ordinance envisages jurisdiction of the tribunal only 'in respect of a. claim filed by a banking company against a customer'. It is said that such jurisdiction would arise. only if and when a banking company, in its discretion and choice, files such a claim before the Banking Tribunal and not otherwise. The argument is again fallacious. In the first place, similar provision in section 6(l)(a) in the Banking Companies Ordinance also provided the ingredient of jurisdiction as being "a claim riled by a banking company against a borrower or by a borrower against a banking company" and the interpretation which is now made does not seem to have prevailed in any judicial forum construing that provision to date, United Bank Ltd. v. Rehana Raza PLD 1983 Karachi 467, Yasmin Nighat v. Nati6nal Bank of Pakistan PLD 1988 SC
391. Even otherwise, it would appear that if such an interpretation was to prevail under either of these Ordinances, section 6(4) of the 1.979 Ordinance and section 5(3) of the 1984 Ordinance would become redundant. Each of these sections operates to exclude the jurisdiction of every other Court by enacting that no such Court "shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction" of a Special Court or a Banking Tribunal, as the case may be, "extends". Manifestly no Court is either to have or to exercise any such jurisdiction, two obviously distinct situations and for that purpose it is not necessary under these provisions that the jurisdiction of a Special Court or a Banking Tribunal may have actually come to be invoked, but it would suffice merely if . that jurisdiction, in a particular matter, merely "extends". Questioning the purported ouster, reference is then made to section 3 in the 1984 Ordinance, exactly the same provision occurring in the similar section of the 1979 legislation, enacting that the provisions of the Ordinance are in addition to and not in derogation of other laws; but that is subject the rider "save as otherwise provided". in each Ordinance. The implications are obvious: other laws would remain unaffected only if nothing to the contrary is envisioned in the Ordinance. United Bank Ltd. v. Rehana Raza P LD 1983 Kar. 467; H.T.M. Ltd. v. Allied Bank of Pakistan 6d. PLD 1987 SC 512, Bank C&C Inter v. Banking Tribunal 1990 MLD
309. Mr. B.M.Bangash also attacked the vires of the 1984 promulgation urging that the President, exercising the powers of Parliament, could not legislate on the subject. The learned counsel, referring to Article 142 of the 1973 Const ' itution, the Federal and Concurrent Legislative Lists and particularly entries 28 and 55 of the former list maintained that the matter not being covered there by legislation in the nature of the 1984 Ordinance could be enacted only by the provincial legislature. By way of legislative history Mr. B.M. Bangash, also attempted to draw support from similar provisions in the Government of India Act, 1935 (as adapted) and the 1956, 1962 and 1972 Constitutions of Pakistan. Now entry 28 in Part I of the Federal Legislative List, inter alia, covers conduct of 'banking business by corporations' and entry in the same List and Part covers 'jurisdiction' of Courts. Both these subjects pursuant to Article 142 of the Constitution are within the Federal legislative competence and the Banking Tribunals Ordinance, 1984, should fall within these subjects. The argument, therefore, fails. Mr. Niaz Ahmad Khan has attacked the vires of the Ordinance with reference to Articles 212 and 212-B (transitory) of the Constitution, He argued it a Banking Tribunal could not be constituted through a law framed under y of these Articles. That is true. But tribunals having Constitutional mandate have peculiarities of their own and no one claims that, status for Banking tribunals. Besides, tribunals. can be constituted also through routine legislations and that is the source of the 1984 enactment. Another objection of the same learned counsel is that the original civil jurisdiction of this Court is governed by the Constitution and cannot be taken away through a sub-Constitutional device. A great deal of case-law as to the jurisdiction of the Court is available but none claims it to be derived, directly, m the Constitution. Having examined the Constitution and particularly articles 175(2), 192(2)(3) and 199 thereof I am unable to persuade myself to agree with the contention that the original civil jurisdiction of this Court arises directly from the Constitution. It is a jurisdiction conferred by law and can be curtailed and taken away by law. Another contention but of a different character, this time by Mr. A.R. Akhtar, is that, at any event, the jurisdiction of a Civil Court is not attracted in h matters at all because it is the jurisdiction of a Special Court, functioning under the Banking Companies Ordinance of 1979 alone which has now come vest in the Banking Tribunals, created under the Banking Tribunals Ordinance, 1984. That may be correct. But Mr. A.R. Akhtar says more. He urges that everything falling within the purview of the 1984 statute -and not falling within Banking Tribunals' jurisdiction would remain available for a special Court to Adjudicate. If what is contended is correct, then in the event 1984 Ordinance had emerged on the scene, but without an enforcing machinery of its own, a controversy under that Ordinance would remain covered by the Banking Companies Ordinance. However, it will have to be a whether that would actually be so. Already reproduced hereinabove are respective definitions of the words "loan" and "finance", the first of which is subject-matter of the 1979 statute, the second being likewise the pivot around which the machinery under the 1984 enactment operates. Per definition of word "loan" (section 2(d)) in the concept of a "loan" are also included an advance" or "any other financial accommodation provided by a banking company to a borrower". These are broad, enough terms. However, the Banking Tribunals Ordinance has created a separate category of "customer" likewise has introduced an independent subject of accommodation namely, finance (section 2(c) and (e)). The matters falling in these clauses are not altogether new and may have been covered but for the definitions of "customer" and "finance" within the terms "borrower" and "loan", as contemplated by the Banking Companies Ordinance, 1979 yet, after the promulgation of the Banking Tribunals Ordinance, 1984, such have been accorded the alleviated status of distinct and independent concepts, defined by statute and can no longer be covered by anything meant by a "borrower" and "loan" ibid. In other words, even if "borrower" and "loan" were the genus .customer" an ' d "finance", upon being segregated therefrom, retain no nexus with the same. As said before, a tribunal of exclusive jurisdiction cannot be one, at the same time, of unlimited jurisdiction. It follows that if a special statute has created distinct categories, some facets thereof attracting the jurisdiction established by it, the residue, if any, would not, without an express intention, fall to the lot of another special dispensation. Thus, as observed above, if a "customer" cannot rile a suit before a Banking Tribunal he win not regain his pre - 1984 character of a "borrower" so as to file a suit before a Special Court under the 1979 dispensation. It transpires that the 1984 statute has affected a complete severance in this behalf from the past. It has provided part of the enforcing machinery itself. For the rest, recourse becomes available to Civil Courts. Jurisdiction of the Special Court is thus in no case attracted. While saying so I am not unaware of the Peshawar High Court judgment in Habibullah v. Habib Bank Ltd. PLD 1990 Pesh. 17, but with that 1, respectfully, do not agree. (ii) WHERE INT A SUIT FALLING WITHIN JURISDICTION ...... As regards set-off it is Order 8, Rule 6, C.P.C. which governs the situation. Even though a written statement, incorporating a set-off is to have effect as a plaint in a cross-suit a set-off remains, if satisfying the requirements, a part of the same suit. Falling short. of requirements, a cross-suit, which would be an independent action can, instead, be preferred. It would, therefore, follow that the jurisdiction to entertain a set-off arises from the jurisdiction to maintain the main suit. If such suit lies a set-off can fall in fine. The rule would be applicable in this jurisdiction as well as in the special jurisdiction under the 1984 Ordinance, because of sections 3 and 5(l)(d) in that Ordinance. As to counter-claims or cross-suits The rule appears to be different. Such are maintainable only if an independent suit in a particular jurisdiction is competent. Pendency of an earlier suit even if arising from the same transaction is irrelevant in such matters. (iii) IN CASES WHERE SUCCESSIVE/COUNTER-SUITS ARE This question arises where, due to absence of jurisdiction in a single forum cross-suits or counter-claims are preferred in different jurisdictions e.g. in a Civil Court or before a Banking Tribunal or vice versa. In these situations, the normal principle, as enshrined in section 10, C.P.C. is that the later suit, raising the same or similar issues between the- same parties or those claiming under them, irrespective of the Court (in Pakistan) where it is instituted, can be stayed to await the result of the earlier pending suit. However, whether the matter in issue, directly and substantially, in the previously instituted suit is the same as in the subsequent suit, is always a moot question. A common place occurrence can be a suit for recovery by a Banking Company and a cross-suit for accounts etc. by a customer in a different jurisdiction in circumstances already dilated upon. The Supreme Court of Pakistan in Jannana De Malucho Textile Mill Ltd. v. Wiqar Ahmed PLD 1972 SC 34, lays down that each such suit can proceed to trial without being amenable to a stay, the ingredients of section 10, C.P.C., not being attracted. Even so, though the matter remains discretionary, where similarity of issues is involved not only the liter suit but even the earlier one can be stayed, as was observed by A.S. Farooqi, J. in Arifa Begum v. Khulque Muhammad Naqvi PLD 1969 Karachi
193. Section 10, C.P.C. only codifies the principle of res sub judice. The object of the rule is to avoid conflicting findings and to ensuYe complete justice to the parties. If necessary and found in the interest of justice, one or the other successive suits can be stayed or can be amalgamated or even refused to be stayed as equities may require: Pakistan v. Agro Marketing Corporation 1981 CLC 443 S.M. Akil Fikree v. Muhammad Qamaruzzaman, PLD 1982 Karachi 745; Habib Bank Ltd. v. Ali Molitaram Naqvi, PLD 1987 Karachi 102 and Muhammad Arif v. Abdul Qayyum 1991 CLC
442. In successive suits, therefore, before a Civil Court and a Banking Tribunal, each of the forums can invoke section 10, C.P.C. or failing that section 151, C.P.C. in (oder to meet the exigencies of a particular situation and to ensure justice and fair play to all. (iv) IN WHAT MANNER IS A SUIT TO BE DEALT WITH ... ... ... ... Under this heading, it is clear that when the suits for recovery were instituted in this Court each, in the absence of a Banking Tribunal becoming functional, jurisdiction to entertain then available, the plaint cannot be returned and only a transfer can be made or the suit can be remitted to the proper jurisdiction: Harnam Das v. Salamat Rai, -AIR 1952 Pepsu 105: National Bank of Pakistan v. Humayoun Sultan Mufti, 1984 CLC 1401 and United Bank Ltd. v. Akbar Agencies Ltd. PLD 1987 Karachi
81. For this reason Suits Nos. Nil of 1991 (S.No.TI), 736 of 1990; 203 of 1991, 432 of 1991 and Suit No.433 of 1991 were ordered to be transferred to the Banking Tribunal through a short order passed on 29th October, 1992. However, in Suit No.203 of 1991 (S. No.IV), it was strenuously argued that the bank had, advisedly, instituted such suit in this jurisdiction because the defendants were liable for fraud which they perpetrated on the plaintiff-Bank. Reliance was placed on National and Grindlays Bank Ltd. v. N.P. Miranda, 1984 CLC 2100 and United Bank Ltd. v. Abdul Rashid, 1987 CLC
331. Those cases are distinguishable because fraud there was practised by non borrowers/non-beneficiaries. In this case because fraud is alleged against a customer and a beneficiary the jurisdiction is essentially that of the Banking Tribunal. Hence the above order. In the result the office shall act on the short order passed in these suits on the above-referred date, at the same time ensuring that a duplicate record is constituted for consignment in this Court. AA./S-961/K Order accordingly'. P L D 1993 Karachi 107 Before Wajihuddm Ahmed, J Messrs SHAF10 HANIF (PV]r.) LTD., KARACHI--Plaintiff versus BANK OF CREDIT AND COMMERCE INTERNATIONAL, i . .410 ~OVERSEAS) LIMITED, KARACHI--Defendant Suits Nos.672, 736 of 1990, Nil, 203, 432, 433, 155 of 1991 and 167 of 1992, decided on 23rd December, 1992. (a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)
S.6
Banking Tribunals Ordinance (LVIII of 1984), S.5
Civil Procedure Code (V of 1908), S.9
Jurisdiction of High Court whether taken away by or under the Banking Tribunals Ordinance, 1984 in matters relating to recovery of Bankloan
If so, extent
While jurisdiction of a Banking Tribunal, purports to be exclusive in matters failing within the parameters of its authority, what that jurisdiction precisely is, has not as such, been categorically spelt out-- Where intendment of Legislature was clear and words spelling out ouster could readily and conveniently be found in it, same would suffice to constitute ouster
Civil Courts alone would have jurisdiction, if called upon to determine as to how far the statute in question, had curtailed their jurisdiction
Despite purported exclusiveness of jurisdiction conferred on the Banking Tribunals by Banking Tribunals Ordinance, 1984, ouster of Civil Courts' jurisdiction was only conditional upon the functioning of the Banking Tribunals
Remedy vesting in Civil Court was, thus, not totally barred
Ouster of jurisdiction of Civil Court is not to be readily inferred
Where a domestic forum had exceeded its jurisdiction or that jurisdiction did not arise, at the overall jurisdiction of Civil Courts was extended thereto. Perusal of sections 5(l)(a) and 5(3), Banking Tribunals Ordinance, 1984, postulates that while the jurisdiction of a Banking Tribunal purports to be exclusive, in matters falling within the parameters of its authority what that jurisdiction precisely is has not, - as such, been categorically spelled out. However, since the jurisdiction of a Civil Court may be barred either expressly or impliedly, though in either case it should -be clearly and manifestly barred categorisation by nomenclature of the Tribunal's jurisdiction may not have been essential for exclusion of the jurisdiction of Civil Courts (section 9, C.P.C.). Speaking broadly, if intendment of the legislation was clear and words spelling out ouster could readily and conveniently be found in it that would suffice to constitute ouster. Thus, section 5(l)(a) of the Banking Tribunals Ordinance, 1984 implicitly spells out the ambit of the jurisdiction of a Banking Tribunal namely, "a claim filed by a Banking Company against a customer in respect of, or arising out of, finance, provided by it". This, however, has been postulated not direclty but with regard to the exercise of powers of a Banking Tribunal by invoking powers similar to those of a Civil Court under the Code of Civil Procedure. Like, as regards procedure of the Tribunal, is the effect of -section 5(l)(d); the former provision, apparently, designed to achieve conferment of jurisdiction on a Banking Tribunal. Upon this follows section 5(3), Banking Tribunal's Ordinance, 1984 excluding the jurisdiction of all Courts "with respect to any matter to which the jurisdiction of a Banking Tribunal extends This method of conferment of jurisdiction, and exclusive at that, was not without legislative precedent. [p. 1191 A The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. Only the nature, implications and incidents of such businesses, distinguish these statutes and furnish the basis which determine whether one or the other may be attracted for seeking legal relief. Comparison would reveal that the common denominators in these enactments were a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in case of disputes. If it was a "loan" based on interest etc., which was sought to be recovered or questioned, the 1979 Ordinance would be attracted but if it was "finance" of a non-interest bearing character, remedy by a banking company was to be sought under the 1984 statute, for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Loan" has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in the 1979 and 1984 statutes. in relation to a claim filed by a banking company against a "customer" in respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of section 5(l)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction was further confirmed when section 5(3) of the Banking Tribunals Ordinance, 1984 made the Tribunal also Judge of "the existence or otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking.Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic Tribunal, unless otherwise provided, could not be Judge of its own jurisdiction. Nonetheless, but conversely, it would still remain for the Civil Courts to see, if called upon to do so, as to how far the statutes had operated to curtail their jurisdiction. Banking Tribunal, relevant to the same provisions, has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be relating to "finance" provided by the banking'company to the "customer". The omission appears to be deliberate because in the same context the equivalent provision in the Banking Companies (Recovery of Loans) Ordinance namely, section 6(l)(a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a "borrower" or by a "borrower" against a banking company pertaining to a "loan" contracted within the terms of such Ordinance. Where a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance" provided to him and covered by the Ordinance, he could not file such an independent suit before a Banking Tribunal. It is now well-settled that tribunals of exclusive jurisdiction cannot be tribunals of unlimited or infinite jurisdiction and their ambit of operation, even if exclusive, has to be specific and is to be confined strictly within the four-corners of the legislation creating them and conferring jurisdiction in relation to them. Where a new right is created by a statute or a new duty or liability is imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement, an aggrieved party can seek only such remedy as is provided by that statute and except so far as otherwise provided in the enactment, either expressly or by necessary implication, the jurisdiction to adjudicate upon the right or to enforce the remedy is exclusive in the machinery set up by the statute. Ouster of jurisdiction of Civil Courts in such cases is implicit and no express terms need be explored. At the same time, where a right or duty has existed before the statute h* come to occupy the field, the ouster, even when explicit, was conditional and dependent upon the functioning of the forum introduced by the statute. As to the present legislation, however, neither the term "customer" nor the notion of "finance" nor participation between a banking company and its customer are by any means new. Relevant to banking companies and their customers, the Banking Tribunals Ordinance, 1984 merely codifies the law and regulates the procedure for enforcement and that also to the limited extent of remedies provided to banking companies against customers and not vice versa. In spite of purported exclusiveness of jurisdiction conferred on the Banking Tribunals by the Ordinance the ouster of Civil Courts' jurisdiction is, therefore, only conditional upon the functioning of the Tribunal. The remedy vesting in Civil Courts is thus not totally barred. In matters, covered by the exclusive jurisdiction of a Banking Tribunal, entertained in a Civil Court for want of availability of the statutory machinery, the jurisdiction of the Civil Court is only of a stop-gap character and should cease when the requisite forum becomes available for providing redress, all antecedent orders and proceedings in the Civil Court remaining valid and binding: The principle seems to be that when a suit was cognizable partly in a special statutory jurisdiction and partly in a Civil Court or where a suit wias based on a cause of action with respect to which relief could be granted by a Civil Court only and merely a connected relief was available in a special jurisdiction, it is the Civil Court alone where the lis lies: It is also a fundamental principle that ouster of jurisdiction of Civil Courts was not readily inferred and in matters where a domestic forum had exceeded its jurisdiction or that jurisdiction did not arise at all, the overall jurisdiction of Civil Courts would extend. [p. 1211 B The two legislations Banking Companies (Recovery of Loans) Ordinance, 1979 and Banking Tribunals Ordinance, 1984 being in pari materia and touching similar subject-matters can be looked at in juxta-position as an extrinsic interpretative aid. A provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. It was merely qualitative. in nature and no more. As to the effect of the two provisos in the equivalent sections of these statutes viz. section 6(4), Banking Companies (Recovery of Loans) Ordinance, 1984 and section 5(3), Banking Tribunals Ordinance, 1984 it is this: Such provisos merely exhibit a slight variation of language without conveying any different meanings. Thus, while the proviso to section 6(4) of the 1979 Ordinance saves the right of a banking company to seek any remedy before any Court that may be available to it under he law by which the banking company may have been established or under that I as amended from time to time, the proviso to section 5(3) of the 1984 Ordinance saves the right of a banking company to seek any remedy before any Court or otherwise that may be available under the I by which the banking company may have been established or under that la as amended from time to time. The expression .or otherwise" in the 1984 statute is thus new. Disjunctive "or" can often be used as a conjunctive just as the conjunctive "and" may be used as a disjunctive. It is in context that each word has to be interpreted. Section 6(4) of the 1979 Ordinance and . section 5(3) of the 1984 Ordinance in relation to the provisos in either of them virtually have the same impact. In the context of the 1979 statute the legislature, it would seem, wanted to save the jurisdiction of a Court and of the banking company itself conferred by the law which created any such company. While the position of such Court was clearly stated, the Banking Companies Ordinance of 079 attempted to create that effect in respect of the banking company itself by using the words "or under that law, as amended from time to time". However, an impression was generated that the quoted words only saved the powers of a Court under a law which created a company as also under the same law, as amended from time to time and that erroneous outcome was fortified when the intendment was not clarified in the clause (h) of such proviso where the jurisdiction of the company under its parent statute was not saved in so many words. This apparent lacuna/want of precision which the proviso to section 5(3) of the Banking Tribunals Ordinance seeks to fill or achieve by, in the first place, inserting the words "or otherwise" in clause (a) of the proviso to section 5(3) and follows up in part (b) thereof by clarifying and protecting the jurisdiction, apart from that of the Court covered by clause (a) of the proviso, also that of the banking company with reference to the law under which the company may have come to be established. Section 6(l)(a) in the Banking Companies (Recovery of Loans Ordinance, 1979 also provided the ingredient of jurisdiction as being "a claim riled by a banking company against a borrower or by a borrower against a banking company". Each of these sections operates to exclude the jurisdiction of every other 'Court by enacting that no such Court "shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction" of a Special Court or a Banking Tribunal, as the case may be, "extends". Manifestly no Court is either to have or to exercise any such jurisdiction, two obviously distinct situations and for that purpose it was not necessary under these provisions that the jurisdiction of a Special Court or a Banking Tribunal may have actually come to be invoked, but it would suffice merely if that jurisdiction, in a particular matter, merely "extends". Questioning the purported ouster, reference is then made to section 3 in the 1984 Ordinance, exactly the same provision occurring in the similar section of the 1979 legislation, enacting that the provisions of the Ordinance were in addition to and not in derogation of other laws; but that is subject to the rider "save as otherwise provided" in each Ordinance. The implications are obvious: other laws would remain unaffected only if nothing to the contrary is envisioned in the Ordinance. [p. 1231 C Industrial Development Bank of Pakistan v. Allied Bank PLD 1986 SC 74; United Bank Limited v. Akbar Agencies Limited PLD 1987 Kar. 81; Habib Bank Ltd. v. Cougdthene Chemical Industries PLD 1987 Lah. 567; Mindai v. Sajid Ali AIR 1930 Oudh 69; Sukhdev v. Basdev AIR 1935 All. 594; Province of East Bengal v. Dewan A. Alim (1957) 9 DLR 26; Chalna Fibre Co. v. Abdul Jabbar PLD 1968 SC 381; National and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106; United Bank Ltd. v. Abdul Rashid 1987 CLC 331; United Bank Ltd. v. Rehana Ra7a PLD, 1983 Kar. 467; Yasmin Nighat v. National Bank of Pakistan PLD 1988 SC 391 and H.T.M. Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 ref. (b) Interpretation of statutes
Where intendment of the legislation was clear and words spelling out ouster could readily and conveniently be found in it, same would suffice to constitute ouster. [p. 1191 A (c) Interpretation of statutes
Where a new right was created by a statute or a new duty or liability was imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement, an aggrieved party could only seek such remedy as was provided by that statute and except so far as otherwise provided in the enactment, either expressly or by necessary implication, jurisdiction to adjudicate upon the right or to enforce the remedy was exclusive in the machinery set up by the statute. [p. 1211 B (d) Interpretation of statutes
Provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. [p. 1231 C (e) Jurisdiction
Tribunals of exclusive jurisdiction cannot be Tribunals of unlimited or infinite jurisdiction and their ambit of operation has to be specific and has to be confined strictly within the four corners of legislation creating them. [p. 121] B (f) Banking Tribunals Ordinance (LVIII of 1984)
Constitution of Pakistan (1973), Arts. 212 & 212-B
Vires of the Banking Tribunals Ordinance, 1984, on the touchstone of Arts.212 & 212-B of the Constitution
Banking Tribunals could not be constituted through a law framed under Arts. 212 & 212-B of the' Constitution
Tribunals having Constitutional mandate have peculiarities of their own and no one could claim that status for Banking Tribunals
Tribunals could, however, be constituted through routine legislation and that was the source of the Banking Tribunals Ordinance, 1984. [p. 1261 D (g) Civil Procedure Cod, IV of 1908) S. 9
Constitution of Pakistan (1973), Arts.175(2), 192(2)(3) & 199-- Original civil jurisdiction of High Court does not arise directly from the Constitution, but same was conferred by law and could be curtailed and taken away by law. I p. 1261 E (h) Banking Tribunals Ordinance (LVIII of 1984)
Preamble, S.5-Objcct, scope and import of the Ordinance
Banking Tribunals Ordinance,, 1984, has provided part of the enforcing machinery itself, for the rest, recourse becomes available to Civil Courts. [p. 1271 F Habibullah v. Habib Bank Ltd. PLD 1990 Pesh. 17 rel. (i) Civil Procedure Code (V of 1908)
0. VIII, R.6
Banking Tribunals Ordinance (LVITI of 1984), Ss.3 & 5-- Jurisdiction to entertain set-off by Banking Tribunal
4urisdiction to entertain a set-off would arise from the jurisdiction to maintain the main suit
Where such suit- lies, set-off would fall in line
Such rule would be applicable in the general jurisdiction of Civil Courts as also in the special jurisdiction under Banking Tribunals Ordinance, 1984, because of'Ss.3 & 5 of the Ordinance
As ' to ~ counter-claims or cross-suits, same would be maintainable only if an independent suit in a particular jurisdiction was competent
Pendency of earlier suit, even -if arising from some transaction would be irrelevant. [p. 1271 CY, j) Civil Procedure Code (V of 1908)
S. 10
Later suit raising the same or similar issues between the same parties or those claiming under them, irrespective of the Court (in Pakistan) where it was instituted, could be, stayed to await the result of the earlier pcnding suit. 1p. 1217111 , Jannana 'De Malucho Tex1fle Mill Ltd. v. Wiqar Ahmed PLD 1972 SC .34; Arifa Begum v. Khu lque Muhammad Naqvi PLD 1909 Kar. 193; Pakistan v. Agro Marketing Corporation 1981 CLC 443; S.M. Akil Fikree V. Muhammad Qamaruzzaman PLD 1982 Kar. 745; Habib Bank Ltd. v. Ali Molitaram Naqvi PLD 1987 Kar. 102 and Muhammad Arif v. Abdul Oayyum 1991 CLC 442 ref. (k) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)
S.6
Banking Tribunals Ordinance (LVIII of 1984), S.5
Transfer of suit to proper jurisdiction
When suits for recovery of Bank loan were instituted in the High Court in the absence of Banking Tribunals becoming functional, jurisdiction to entertain then being available, plaint could not be returned to p1laintiff and only a transfer could be made or suit could be Tcmitted to proper jurisdiction
Specified suits pending in High ourt were transferred to Banking Tribunal. [p. 12811 Harnam Das v. Salamat Rai AIR 1952 Pepsu 105; National Bank of Pakistan v. Humayoun Sultan Mufti 1984 CLC 1401; United Bank Ltd. V. Akbar Agencies Ltd. PLD 1987 Kar. 81; National and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106 and United Bank Ltd. v. Abdul Rashid 1987 CLC 331 ref. Muhammad Sharif, Syed lqbal Ahmad, B.M. Bangash, A.I. Chundrigar, Niaz Ahmad Khan, Mansoorul Arfin, Iqbal Kazi~ Muhammad Ah Sayeed, Anwar Man%oor, Mustafa Lakhani, Mchmood Iqbal, Fazle Ghani Khan, Abdul Rauf, Habibur Rehman, Muhammad Saleem, A.R. Akhtar for the Parties. ORDER In these suits more or less similar questions of law and fact arise, at least at this stage of the proceedings. Such have a nexus with the jurisdiction of the Banking Tribunals under the Banking Tribunals Ordinance, LVIII of 1984. A common plea is that the relevant suit at the time it was instituted in this Court could either not be Filed before the Banking Tribunal under the said Ordinance, the tribunal not being functional till 1-8-1991, when the present incumbent, Mr. Justice (Retd.) K.A. Ghani, was appointed or the jurisdiction of such tribunal, according to other contentions raised, in the applicable suits, was ab inilio not attracted at- all. Before dilating upon such questions of jurisdiction and ancillary matters it will be appropriate to briefly detail the facts of each case, as such facts figure on the record:-- (i) Suit No.672/1990. Shafiq Hanif(Pvt0 Limited v. The B.C.C,I. is a suit for recovery of' Rs.1,393,802 and injunction. This suit proceeds on the ground that the plaintiff, which is an exporter shipped certain goods to Hong Kong and handed over the shipping documents to the defendant-Bank for collection of payment under an arrangement with reference to the Expom Re-finance Scheme whereupon a maximum of 6% was chargeable but the bank, transgressing, has raised claim at 16% per annum. It is further urged that the bank could not despatch the shipping documents before crediting due "finance". In the written statement submitted by the defendant-Bank the suit is claimed to be non-maintainabic for want of jurisdiction and absence of cause of action. As regards providing re-finance before despatch of the shipping documents it is said that such was in the discretion of the bank. It is claimed that the plaintiff owes a sum of Rs.5.489 mil1ion to the defendant with mark-up thereon. (ii) Suit No. Nil of PNI B.C.C.I. v. Shafiq Hanif ( .) Ltd. is the Bank's counter-suit for recovery and was filed in this Court on 10-6-1991 because then the Banking Tribunal was non-functional. Mr. Muhammad Sharif appear~ for Mis. Shafiq Hanif (Pvt.) Ltd. and Mr. Syed Iqhal Ahmed represents the B.C.C.I. though in the bank's suit M/s. Mansoor Ahmed Khan & Co. act for Shafiq Hanif (Pvt.) Ltd. and others. iii) Suit No.736 of 1990. B.-C.C.I. v. Fine Food Industries (Pvt.) Limited and other : Instituted on 30-6-1990, this is a suit for recovery of Rs.29,541.572 under the Banking Tribunals Ordinance, 198A. In the written statement filed by the defendants Nos.1 to 3 the claim on merits is denied, as allegedly incorrect and improper debit entries are made and credits arc not dulv reflected. The plaintiff is represented by M/s. Liaquat Merchant & Co., the defendants Nos.1 to 3 appear through Mr. B.M. Bangash, Mr. A.I. Chundrigar is for defendant No.7 (IDBP) and Mr. Niaz Ahmad Khan has filed power for the defendants Nos.4 to 6 and 8, the defendant No.8 being the Agricultural Development Bank of Pakistan, a prior mortgagee. iv) Suit No.203 gL12L)1_,U.B.L, v. Entre2rises VI and another. This suit for recovery in the sum of Rs.21.350,10) was instituted on 1.3-10-1990 and the claim is based on non-interest demand finance in circumstances that the defendant No.2 allegedly informed the plaintiff bank that he wanted to purchase from the defendant No.1 truck chassis/vehicles of the total value of Rs.20 million and that on approval of finance the plaintiffs, do pay such amount to the defendant No.l. The two defendants arc said to have assured the Bank that the defendant No.1, as seller, shall hand over all papers pertaining to the chassis/vchicles to the bank, which papers would be in the joint names of the plaintiff-Bank and the defendant No.2. Pay orders were, accordingly, issued and the defendant No.1 encashed the same. The documents pertaining to the sale of the chassis/vehicles were, however, not- forwarded to the plaintiffs. Later the defendant No-I completely denied factum and even knowledge of the transaction. The defendants arc, therefore, claimed to have colluded in causing loss to the plaintiff, giving rise to the claim in suit. No written statement seems to have been filed. The plaintiff-Bank is represented by M/s. Mansoorul Arfin and Habibullah Samo while Mr. S. Iqbal Ahmed appears for the defendant No.1 and Mr. IqbaI Kazi for the defendant No.2. Suit No.432 Of 199I,_V_..B-L, v. MZs. Alintco (Pvt.) Ltd. and others.- L This suit, brought on 12-3-1991, for recovery of Rs.3,70,40.466 under sections 6 and 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979 has only a remote nexus with a cash credit finance limit because. in November, 1987 the defendants fully adjusted the cash credit but continued to enjoy F.T.R. (Finance Trust Receipts) facility. A fresh "finance" agreement-was concluded on .30-6-1989. In the period' following the defendants made only nominal payments giving rise to the claim in suit. No written statement has been filed by the defendants. M/s. Mansoor Ahmed Khan & Co. are for the plaintiff whereas Mr. Mustufa Lakhani represents the defendants Nos.1 to 4. (vi) Suit No.4-33 of 1991, N.D.F.C. v. M/s, Paksaco Limited and other The suit, instituted on 1-4-1.991, is for recovery of Rs-23,782.'Xg under the Banking Tribunals Ordinance. 1984. Tiie plaintiff, which is a banking company, included in the schedule to the Banking Tribunals Ordinance, 1994. is stated to have granted to the defendant No.1 working capital finance to the tune of Rs.20.000,000 on 9-6-19% against the securities detailed in para.6 of the plaint and the personal guarantees dated 14-6-19% of the defendants Nos.2 to
8. The finance disbursed to the defendant No.1 is claimed to have matured on October 16, 1990 but the defendants failed to liquidate their liability. In defence, the claim is repudiated more or less on technical grounds. Mr. M. lqbal and Mr. Fazle Ghani Khan are for the plaintiff and defendants. (vii) Suit No.155 of 1992, Muhammad Bashir v. The Bank of Oman Limited, was instituted on 23-2-1992. in this suit what is questioned is the purported grant of finance by the defendant-Bank to the plaintiff which, apparently, is the subject-matter of Suit No.923 of 1991, currently pending before the Banking Tribunal. It is, inter alia, urged that th~ defendant-Bank has manoeuvred to bring the subject-matter of the dispute within the purview of the concept of "Finance", so as to invoke the jurisdiction of the Banking Tribunal under the 1984 Ordinance. It is urged that at the time of the relevant transactions there were no goods to be sold or purchased and, therefore, there was no contract of sale so as to give rise to the pristine concept of "finance". Declaration is sought that the relevant documents detailed in the plaint are void and cancellation thereof is claimed. No written statement seems to have been filed in the suit. Mr. A. Rauf is for the plaintiff and Mr, Habibur Rehman represents the defendanf-Bank. (viii) Suit No.167 of 1992, Abdul Aziz Nawab Khan & Co. v. The Habib Bank Limited.--This suit, instituted on 2-3-1992, is for rendition of accounts and delivery of goods, the plaintiff being an importer of Iron and Steel Scrap, from time to time and on account, clearing the finance due and correspondingly lifting the imported goods from the godowns of the defendant-Bank, where such were lying pledged. The defendant, allegedly, failed on occasions to issue necessary delivery orders and the plaintiff resultantly suffered. Decree is sought essentially for rendition of accounts. Written statement has been riled by the defendant-Bank in which. principally, it is urged that the suit is barred under the Banking Companies (Recovery of Loans) Ordinance. Mr. Muhammad Salim acts for the plaintiff while Mr. A.R. Akhtar appears for the defendant-Bank." Having dilated upon the salient factual features in these cases, the various questions of law may now be specifically set out: (i) To what extent, if at all, the jurisdiction of this Court has been taken away by or under the Banking Tribunals Ordinance? (ii) Where in a suit falling within the jurisdiction of this Court or within that of the Banking Tribunal a set-off is claimed or a counter-claim is lodged when an independent suit incorporating such set-off or counter-claim may not have been cntcrtainable whether such set-off or counter-claimean be entertained? (iii) In cases where successive/counter-suits are Filed before this Court and the Banking Tribunal or vice versa and each is competently filed covering the same or similar subject-matter between the same or similar parties, how, if at all, conflicting decisions may be avoided? (iv) In what manner is a suit to he dealt with which at the time when it was instituted was properly instilued in this Court but subsequently, factua impediments giving jurisdiction to this.Court having been removed such suit becomes triable exclusively before the Banking Tribunal? (i) TO WHAT EXTENT, IF AT ALL, THE JURISDICTION . As to the ambit of jurisdiction of Banking Tribunals the applicable provisions are these: THE BANKING TRIBUNALS OR DIN.ANCE 1984 (2) Definitions.
In this Ordinance, unless there is anything repugnant in the subject or context,-- (a) banking company' means- (b) 'Banking Tribunal' mean, tribunal established under section 4;' (c ) 'customer' means a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier; (d) 'commencing day' means.. (c) '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 any copy-right,". bills of exchanges, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode anther 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, and I (f) rules' mean. 3) Ordinance not to derogate frQm_gther laws.--The provisions of this Ordinance shall he in addition to and, save as otherwise provided in t , his Ordinance, not in derogation of, any other law for the time being in force. (4) (5) Power i of Banking Tribunals.--(I) A Banking Tribunal shall-- (a) in the exercise of its civil jurisdiction have or exercise a claim filed by a banking company against a custom in respect of, or arisinig out of finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of I(M); (b). in the exercise of its Criminal Jurisdiction. (c ) exercise and perform such other powers. (d) A banking tribunal shall, in all matters with respect to which 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); 2) 3) No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the Jurisdiction Banking-Tribunal extends under this Ordinance, including a decision as to the -existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal: Provided that nothing in this subsection shall be deemed to affect. a) the right of a banking company to seek any remedy before any Court or otherwise that may be available under the law by which the banking company may have been established or under that law as amended from time to time ; or (b) the power or jurisdiction of the banking company or any Court such as is referred to in clause (a); or to require the transfer to a Banking Tribunal of any proceedings pending before the banking company or any such Court immediately before the commencing day." (Underlinings added) It will. he seen, upon a perusal of sections 5(1)(a) and 5(3) abovc-quoted, that while the jurisdiction of a Banking Tribunal purports to be exclusive in matters falling within the parameters of its authority what that jurisdiction precisely is has not, as such, been categorically spelled out. However, since the jurisdiction of a Civil Court may be barred either expressly or impliedly, though in either case it should be clearly and manifestly barred, categorisation by nomenclature of the tribunal's jurisdiction may not have been essential for exclusion of the jurisdiction of Civil Courts (section 9, C.P.C.). Objections in this behalf, which are being overruled, would come up for discussion below. For the present, speaking broadly, if intcndment of the legislation is clear and words spelling out ouster can readily and conveniently be found in it such would.suffice to constitute ouster. Thus, section 5(l)(a) of the Ordinance, reproduced above implicitly spells out the ambit of the jurisdiction of a Banking Tribunal namely: .,a claim riled by a Banking Company against -a customer in respect of, or arising out of, finance, provided by it". This, however, has been postulated not directly but with regard to the exercise of powers of a Banking Tribunal by invoking powers similar to those of a Civil Court under the Code of Civil Procedure. Like, as regards procedure of the Tribunal, is the effect of section 5(l)(d); the former provision, apparently, designed to achieve conferment of jurisdiction on a Banking Tribunal. Upon this follows section 5(3) excluding the jurisdiction of all Courts "with respect to any matter to which the jurisdiction of a Banking Tribunal extends ... ..... This method of conferment of jurisdiction, and exclusive at that, is not without legislative precedent. An identical legislative- device was used in the Banking Companies (Recovery Loans) Ordinance, 1979. Relevant postulates of such Ordinance, being useful even otherwise, as an interpretative, aid, may here be reproduced: THE BANKING COMPANIES (RECOVERY OF LOANS) ORDINANCE, 1979 1 (2) Definitions.
In this Ordinance, unless there is anything repugnant in the subject or context,-- (a) banking company' means. (b) 'borrower' means a person who has obtained a loan from a banking company and includes a surety or an indemnifier; I (c) commencing day means. (d) "loan" means. (i). an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking coml2nay to a borrower; (ii.) a guarantee, indemnity, letter of credit ... ... ... ... ... ... ... ... ... ... .... (iii) a benami loan, that is, a loan. ,(iv) any amount due from any borrower. (v) any loan due from any borrower. (e) 'rules' means .. ... ... ... ... ... ... ... (f,) 'Special Court' means ... ... ... ... ... ... ; Ordinance not to deroizate from other laws.
The provisions of this' Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.
4. Securing and repayment of loan ...
5. Omitted.
(l) A Special Court shall- (a) in the exercise of its civil jurisdiction have in respect of a claim filed a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of a loan, all the powers a. vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (b) in the exercise of its Criminal Jurisdiction; and (c) exercise and perform such other powers ... ... .. (2) (3) (4) No Court other than a Special Court shall have or exercise any jurisdiction with resMct to any matter to which the ourisdiction of a Special Court extends under this Ordinance. including a decision as t the cxistence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the riling of an arbitration award and proceedings 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: Provided that nothing in this subsection shall be deemed to affect
(a) the right of a banking 6ml2any to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or' (b) the jurisdiction of any Court such as is referred to in clause (a), or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day." (Under linings added) The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. It is only the nature, implications and incidents of such businesses, which distinguish these statutes and furnish the basis which determines whether one or the other may be attracted for seeking leg al relief. Comparison would reveal that the common denominators in these enactments are a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in case of disputes. If it is a "loan" based on interest etc., which is sought to be recovered or' questioned the 1979 Ordinance would be attracted but if it is "finance" of a non-interest bearing character remedy by a banking company is to be sought under the 1984 statute for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Law has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in the 1979 and 1984 statutes. An examination of the quoted provisions makes it obvious that in relation to a claim filed by a banking company against a "customer' in 'respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of 'sections 5(l)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction is further confirmed when section 5(3) of the 1984 Legislation makes the tribunal also Judge of "the existence or, otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic tribunal, unless otherwise provided, cannot be Judge of its own jurisdiction. Nonetheless, but conversely, it will still remain for the Civil Courts to see, if called upon to do so, as to how, far the statutes have operated to curtail their jurisdiction. Here, we at Once find that a Banking Tribunal, relevant to the same provisions, as referred has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be related to "finance" (as defined-) Provided by the banking company to the Customer". The omission appears to be deliberate because in the same Context the equivalent Provision in the Banking Companies (Recovery of Loans) Ordinance namely section 6(l)(a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a borrower" or by a 'borrower" against a banking company pertaining to a "loan contracted within the terms of such Ordinance. It follows that if a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance provided to him and covered by the Ordinance, he cannot file such an independent suit before a Banking Tribunal. It is now well-settled that tribunals of exclusive jurisdiction cannot be tribunals of unlimited or infinite jurisdiction and their ambit of Operation, even if exclusive, has to be specific and is to be Confined strictly within the. four corners of the legislation creating them and conferring jurisdiction in relation to them. May be taken up now the various objections the learned counsel have raised to urge that the ouster of jurisdiction of Civil Courts is not complete upon the terms of the Ordinance in question- it is a well-recognised principle that where a new right is created by a statute or a new duty or liability is imposed thereunder, the statute simultaneously prescribing the mode or manner of enforcement an aggrieved party can seek only such remedy as is provided by that statute and except so far as otherwise provided in the, enactment, either expressly or by necessary implication, the jurisdiction to adjudicate upon the right Or to enforce the remedy is exclusive in the machinery set up by the statute. Ouster of jurisdiction of Civil Courts in such cases is implicit and no express terms need be explored. At the same time, where a right or duty has existed before the statute has come k" Occupy the field, the ouster, even -hen explicit is conditional and dependent upon the functioning of the forum, introduced by the statute -Sultan Ali v Noor Hussain PLD 1949 Lahore 301 .Industrial Development Bank of Pakistan v- Allied Bank. PLD 1986 SC
74. As to the instant legislation, however, neither the term Customer" nor the notion of "finance" nor participation between a banking company and its customer are by any means new. Relevant to banking companies and their customers, as defined, the. Ordinance of 1984 merely codifies the law and regulates the procedure for enforcement and that also to the limited extent of remedies provided to banking companies against customers and not vice versa. In spite of purported exclusiveness of jurisdiction conferred on the banking Tribunals by the Ordinance the ouster of Civil court Jurisdiction is. therefore, only conditional upon the functioning of the tribunal. The remedy vesting in Civil Conrts is thus not totally barred. To this extent I agree with the contentions of Mr. Fazle Ghani Khan,' Mr. Mansoorul Arfin and Mr. Muhammad Sharif. However, learned counsel also maintain that once a lis, exclusively within the jurisdiction of such a tribunal, is entertained in a Civil Court while the tribunal is non-functional, it should be taken to its logical conclusion. The Civil Court, it is urged, is not a mere caretaker. I think to uphold this would involve unsettling the settled rules of construction is to me that in matters, covered by the exclusive jurisdiction of a Banking Tribunal, entertained in a Civil Court for want of availability of the statutory machinery, the jurisdiction of the Civil Court is only of a stopgap character and should cease when the requisite forum becomes available for providing redress, all antecedent orders and proceedings in the Civil Court remaining valid and binding: United Bank Limited v. Akbar Agencies Limited PLD 1987 Kar. 81, Habib Bank Ltd. v. Cougdthene Chemical Industries PLD 1987 Lahore 567, Another argument of the same and other learned counsel is that where in an action attracting the jurisdiction of a Banking Tribunal non cognizable matters happen also to come up for adjudication it is only in the Civil Courts that the remedy may be pursued. The principle seems to be that when a suit is cognizable partly in a special statutory jurisdiction and partly in a Civil Court or where a suit is based on a cause of action with respect to which relief can be granted by a Civil Court only and merely a connected relief is available in a special jurisdiction it is the Civil Court alone where the lis lies: Mindai v. Sajid Ali AIR 1930 Oudh 69, Sukhdcv v. Basdev AIR 1935 Allahabad
594. It is also a fundamental principle that ouster of jurisdiction of Civil Courts is not readily inferred and in matters where a domestic forum exceeds its jurisdiction or that jurisdiction does not arise at all the overall jurisdiction of Civil Courts extends: Province of East Bengal v. Dcwan A. Alim (1957) 9 DLR 26; Chaina Fibre Co. v. Abdul Jabbar PLD 1908 SC 381; National. and Grindlays Bank Ltd. v. N.P. Miranda 1984 CLC 2106; United Bank Ltd. v. Abdul Rashid 1987 CLC
331. It will, however, remain to be seen whether within the somewhat enlarged compass of the legislation covering all suits by a banking company 'in respect of or arising out of finance' any of the suits in hand do not fall. On the question of ouster, it has next been contended that whereas the Banking Companies (Recovery of Loans) Ordinance, 1979, provided for transfer of cases falling within the jurisdiction of the Special Court from the Civil Courts to that Court there is no corresponding provision in the Banking Tribunals Ordinance, 1984. It has also been contended that section 5(3) and in particular the proviso thereof is a departure from what was contemplated in the corresponding provision of section 6(4) of the Banking Companies Ordinance. The two legislations being in pari materia and touching similar subject-matters can be looked at in juxtaposition as an extrinsic interpretative aid. Even so, the result is not the same as it is argued to be. A provision spelling out automatic transfer to a new forum created by law only strengthens the ouster of jurisdiction, where previously subsisting. It is merely qualitative in nature and no more. Nothing, therefore, turns on this distinction. As to what is the effect of the -two provisos in the equivalent sections of these statutes it is this: Such provisos merely exhibit a slight variation of language without conveying any different meanings. Thus, while the proviso to section 6(4) of the 1979 Ordinance saves the right of a banking company to seek any remedy before any Court that may be available to it under the Law by which the banking company may have been established or under that law as amended from time to time, the proviso to section 5(3) of the 1984 Ordinance saves the right of a banking company to seek any remedy before any Court or otherwise that may be available under that law by which the banking company may have been established or under that law as amended from time to time. The expression "or otherwise" in the 1984 statute- is thus new. On the language, Mr. Anwar Mansoor maintains that in virtue of the proviso to section 5(3) nothing in that subsection shall be deemed to affect 'the right of a banking company to seek any remedy before any Court ... .... and there one of the contingencies stops the disjunctive 'or' contemplating thereafter another independent postulate. In other words, according to him if a banking company, in its discretion, chooses to approach any Civil Court in preference to a Banking Tribunal it can do so under the 1984 Ordinance though that cannot be done if the matter was covered by the Ordinance, 1979. The argument is untenable. Disjunctive "or" can often be used as a conjunctive just as the conjunctive "and" may be used as a disjunctive: It is in context that each word has to be interpreted. It appears to me that, in effect, section 6(4) of the 1979 Ordinance and section 5(3) of the 1984 Ordinance in relation to the provisos in either of them virtually have the same impact. In the context of the 1979 statute the legislature, it would seem, wanted to save the jurisdiction of a Court and of the banking company itself conferred by the law which created any such company. While the position of such Court was clearly stated, the Banking Companies Ordinance of 1979 attempted to create that effect in respect of the banking company itself by using the words "or under that law, as amended from time to time". However, an impression was generated that the quoted words only saved the powers of a Court under a law which created a company as also under the same law, as amended from time to time and that erroneous outcome was fortified when the intendment was not clarified in the clause (b) of such proviso where the jurisdiction of the company under its parent statute was not saved in so many words. It is, to my mind, this apparent lacuna/want of precision which the proviso to section 5(3) of the Banking Tribunals Ordinance seeks to fill or achieve by, in the first place, inserting the words "or otherwise" in clause (a) of the proviso to section 5(3) and follows up in part (b) thereof by clarifying and protecting the jurisdiction, apart from that of the Court covered by clause (a) of the proviso, also that of the banking company with reference, to the law under which the company may have come to be established. Another argument, and this by Mr. B.M. Bangash, advanced in support of the continuation of the jurisdiction of this Court is that section 5(l)(a) of the Banking Tribunals Ordinance envisages jurisdiction of the tribunal only 'in respect of a. claim filed by a banking company against a customer'. It is said that such jurisdiction would arise. only if and when a banking company, in its discretion and choice, files such a claim before the Banking Tribunal and not otherwise. The argument is again fallacious. In the first place, similar provision in section 6(l)(a) in the Banking Companies Ordinance also provided the ingredient of jurisdiction as being "a claim riled by a banking company against a borrower or by a borrower against a banking company" and the interpretation which is now made does not seem to have prevailed in any judicial forum construing that provision to date, United Bank Ltd. v. Rehana Raza PLD 1983 Karachi 467, Yasmin Nighat v. Nati6nal Bank of Pakistan PLD 1988 SC
391. Even otherwise, it would appear that if such an interpretation was to prevail under either of these Ordinances, section 6(4) of the 1.979 Ordinance and section 5(3) of the 1984 Ordinance would become redundant. Each of these sections operates to exclude the jurisdiction of every other Court by enacting that no such Court "shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction" of a Special Court or a Banking Tribunal, as the case may be, "extends". Manifestly no Court is either to have or to exercise any such jurisdiction, two obviously distinct situations and for that purpose it is not necessary under these provisions that the jurisdiction of a Special Court or a Banking Tribunal may have actually come to be invoked, but it would suffice merely if . that jurisdiction, in a particular matter, merely "extends". Questioning the purported ouster, reference is then made to section 3 in the 1984 Ordinance, exactly the same provision occurring in the similar section of the 1979 legislation, enacting that the provisions of the Ordinance are in addition to and not in derogation of other laws; but that is subject the rider "save as otherwise provided". in each Ordinance. The implications are obvious: other laws would remain unaffected only if nothing to the contrary is envisioned in the Ordinance. United Bank Ltd. v. Rehana Raza P LD 1983 Kar. 467; H.T.M. Ltd. v. Allied Bank of Pakistan 6d. PLD 1987 SC 512, Bank C&C Inter v. Banking Tribunal 1990 MLD
309. Mr. B.M.Bangash also attacked the vires of the 1984 promulgation urging that the President, exercising the powers of Parliament, could not legislate on the subject. The learned counsel, referring to Article 142 of the 1973 Const ' itution, the Federal and Concurrent Legislative Lists and particularly entries 28 and 55 of the former list maintained that the matter not being covered there by legislation in the nature of the 1984 Ordinance could be enacted only by the provincial legislature. By way of legislative history Mr. B.M. Bangash, also attempted to draw support from similar provisions in the Government of India Act, 1935 (as adapted) and the 1956, 1962 and 1972 Constitutions of Pakistan. Now entry 28 in Part I of the Federal Legislative List, inter alia, covers conduct of 'banking business by corporations' and entry in the same List and Part covers 'jurisdiction' of Courts. Both these subjects pursuant to Article 142 of the Constitution are within the Federal legislative competence and the Banking Tribunals Ordinance, 1984, should fall within these subjects. The argument, therefore, fails. Mr. Niaz Ahmad Khan has attacked the vires of the Ordinance with reference to Articles 212 and 212-B (transitory) of the Constitution, He argued it a Banking Tribunal could not be constituted through a law framed under y of these Articles. That is true. But tribunals having Constitutional mandate have peculiarities of their own and no one claims that, status for Banking tribunals. Besides, tribunals. can be constituted also through routine legislations and that is the source of the 1984 enactment. Another objection of the same learned counsel is that the original civil jurisdiction of this Court is governed by the Constitution and cannot be taken away through a sub-Constitutional device. A great deal of case-law as to the jurisdiction of the Court is available but none claims it to be derived, directly, m the Constitution. Having examined the Constitution and particularly articles 175(2), 192(2)(3) and 199 thereof I am unable to persuade myself to agree with the contention that the original civil jurisdiction of this Court arises directly from the Constitution. It is a jurisdiction conferred by law and can be curtailed and taken away by law. Another contention but of a different character, this time by Mr. A.R. Akhtar, is that, at any event, the jurisdiction of a Civil Court is not attracted in h matters at all because it is the jurisdiction of a Special Court, functioning under the Banking Companies Ordinance of 1979 alone which has now come vest in the Banking Tribunals, created under the Banking Tribunals Ordinance, 1984. That may be correct. But Mr. A.R. Akhtar says more. He urges that everything falling within the purview of the 1984 statute -and not falling within Banking Tribunals' jurisdiction would remain available for a special Court to Adjudicate. If what is contended is correct, then in the event 1984 Ordinance had emerged on the scene, but without an enforcing machinery of its own, a controversy under that Ordinance would remain covered by the Banking Companies Ordinance. However, it will have to be a whether that would actually be so. Already reproduced hereinabove are respective definitions of the words "loan" and "finance", the first of which is subject-matter of the 1979 statute, the second being likewise the pivot around which the machinery under the 1984 enactment operates. Per definition of word "loan" (section 2(d)) in the concept of a "loan" are also included an advance" or "any other financial accommodation provided by a banking company to a borrower". These are broad, enough terms. However, the Banking Tribunals Ordinance has created a separate category of "customer" likewise has introduced an independent subject of accommodation namely, finance (section 2(c) and (e)). The matters falling in these clauses are not altogether new and may have been covered but for the definitions of "customer" and "finance" within the terms "borrower" and "loan", as contemplated by the Banking Companies Ordinance, 1979 yet, after the promulgation of the Banking Tribunals Ordinance, 1984, such have been accorded the alleviated status of distinct and independent concepts, defined by statute and can no longer be covered by anything meant by a "borrower" and "loan" ibid. In other words, even if "borrower" and "loan" were the genus .customer" an ' d "finance", upon being segregated therefrom, retain no nexus with the same. As said before, a tribunal of exclusive jurisdiction cannot be one, at the same time, of unlimited jurisdiction. It follows that if a special statute has created distinct categories, some facets thereof attracting the jurisdiction established by it, the residue, if any, would not, without an express intention, fall to the lot of another special dispensation. Thus, as observed above, if a "customer" cannot rile a suit before a Banking Tribunal he win not regain his pre - 1984 character of a "borrower" so as to file a suit before a Special Court under the 1979 dispensation. It transpires that the 1984 statute has affected a complete severance in this behalf from the past. It has provided part of the enforcing machinery itself. For the rest, recourse becomes available to Civil Courts. Jurisdiction of the Special Court is thus in no case attracted. While saying so I am not unaware of the Peshawar High Court judgment in Habibullah v. Habib Bank Ltd. PLD 1990 Pesh. 17, but with that 1, respectfully, do not agree. (ii) WHERE INT A SUIT FALLING WITHIN JURISDICTION ...... As regards set-off it is Order 8, Rule 6, C.P.C. which governs the situation. Even though a written statement, incorporating a set-off is to have effect as a plaint in a cross-suit a set-off remains, if satisfying the requirements, a part of the same suit. Falling short. of requirements, a cross-suit, which would be an independent action can, instead, be preferred. It would, therefore, follow that the jurisdiction to entertain a set-off arises from the jurisdiction to maintain the main suit. If such suit lies a set-off can fall in fine. The rule would be applicable in this jurisdiction as well as in the special jurisdiction under the 1984 Ordinance, because of sections 3 and 5(l)(d) in that Ordinance. As to counter-claims or cross-suits The rule appears to be different. Such are maintainable only if an independent suit in a particular jurisdiction is competent. Pendency of an earlier suit even if arising from the same transaction is irrelevant in such matters. (iii) IN CASES WHERE SUCCESSIVE/COUNTER-SUITS ARE This question arises where, due to absence of jurisdiction in a single forum cross-suits or counter-claims are preferred in different jurisdictions e.g. in a Civil Court or before a Banking Tribunal or vice versa. In these situations, the normal principle, as enshrined in section 10, C.P.C. is that the later suit, raising the same or similar issues between the- same parties or those claiming under them, irrespective of the Court (in Pakistan) where it is instituted, can be stayed to await the result of the earlier pending suit. However, whether the matter in issue, directly and substantially, in the previously instituted suit is the same as in the subsequent suit, is always a moot question. A common place occurrence can be a suit for recovery by a Banking Company and a cross-suit for accounts etc. by a customer in a different jurisdiction in circumstances already dilated upon. The Supreme Court of Pakistan in Jannana De Malucho Textile Mill Ltd. v. Wiqar Ahmed PLD 1972 SC 34, lays down that each such suit can proceed to trial without being amenable to a stay, the ingredients of section 10, C.P.C., not being attracted. Even so, though the matter remains discretionary, where similarity of issues is involved not only the liter suit but even the earlier one can be stayed, as was observed by A.S. Farooqi, J. in Arifa Begum v. Khulque Muhammad Naqvi PLD 1969 Karachi
193. Section 10, C.P.C. only codifies the principle of res sub judice. The object of the rule is to avoid conflicting findings and to ensuYe complete justice to the parties. If necessary and found in the interest of justice, one or the other successive suits can be stayed or can be amalgamated or even refused to be stayed as equities may require: Pakistan v. Agro Marketing Corporation 1981 CLC 443 S.M. Akil Fikree v. Muhammad Qamaruzzaman, PLD 1982 Karachi 745; Habib Bank Ltd. v. Ali Molitaram Naqvi, PLD 1987 Karachi 102 and Muhammad Arif v. Abdul Qayyum 1991 CLC
442. In successive suits, therefore, before a Civil Court and a Banking Tribunal, each of the forums can invoke section 10, C.P.C. or failing that section 151, C.P.C. in (oder to meet the exigencies of a particular situation and to ensure justice and fair play to all. (iv) IN WHAT MANNER IS A SUIT TO BE DEALT WITH ... ... ... ... Under this heading, it is clear that when the suits for recovery were instituted in this Court each, in the absence of a Banking Tribunal becoming functional, jurisdiction to entertain then available, the plaint cannot be returned and only a transfer can be made or the suit can be remitted to the proper jurisdiction: Harnam Das v. Salamat Rai, -AIR 1952 Pepsu 105: National Bank of Pakistan v. Humayoun Sultan Mufti, 1984 CLC 1401 and United Bank Ltd. v. Akbar Agencies Ltd. PLD 1987 Karachi
81. For this reason Suits Nos. Nil of 1991 (S.No.TI), 736 of 1990; 203 of 1991, 432 of 1991 and Suit No.433 of 1991 were ordered to be transferred to the Banking Tribunal through a short order passed on 29th October, 1992. However, in Suit No.203 of 1991 (S. No.IV), it was strenuously argued that the bank had, advisedly, instituted such suit in this jurisdiction because the defendants were liable for fraud which they perpetrated on the plaintiff-Bank. Reliance was placed on National and Grindlays Bank Ltd. v. N.P. Miranda, 1984 CLC 2100 and United Bank Ltd. v. Abdul Rashid, 1987 CLC
331. Those cases are distinguishable because fraud there was practised by non borrowers/non-beneficiaries. In this case because fraud is alleged against a customer and a beneficiary the jurisdiction is essentially that of the Banking Tribunal. Hence the above order. In the result the office shall act on the short order passed in these suits on the above-referred date, at the same time ensuring that a duplicate record is constituted for consignment in this Court. AA./S-961/K Order accordingly'.