2008 PLP 856 (CLD)

MUSHIR ALAM, J.

Plaintiffs have filed instant suit impugning the action of defendant No.1. All the plaintiffs essentially claimed the reliefs against the bankers. The plaintiffs have impugned the action of selling the property of the plaintiffs in exercise of powers under section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and all incidental and consequential reliefs thereto including damages. Office has raised objection that the relationship between the plaintiffs and defendants Nos. 1 to 3 and 5 is as customer and borrower, therefore, the suit is barred under the Ordinance, 2001. Mr. Sami Ahsan, learned counsel for the plaintiffs contends that it is not the suit within the contemplation of Ordinance, 2001 and it is not all the suit between the borrowers and customers that falls within the jurisdiction of the Banking Court. In support of his contention, he has relied upon the case law reported as Siddique Woollen Mills and others v. Allied Bank of Pakistan 2003 SCMR 1156 = 2003 CLD 1033, wherein it appears that the suit filed by the banking company was decreed and affirmed the first appeal. The matter went upto the apex Court. The suit was resisted and a plea was raised that goods of the petitioners are retained by the Bank unauthorisedly. The apex Court ruled that the plea raised does not constitute valid defence and damages could be agitated in appropriate proceedings. Such observations do not imply that suit of nature as in instant case could be filed in Civil Original Jurisdiction. Section 7(a) of the Ordinance, 2001 gives ample power to the Banking Court and the Court possess all the jurisdiction as is vested in civil Court under the Civil Procedure Code and in terms of subsection (4) of section 7 of the Ordinance, 2001, no Court other than the Banking Court has jurisdiction in respect of the matter covered under the Ordinance. In terms of section 9 ibid, it is provided that where a customer or financial institution commits a default in fulfilling of any of its obligations with regard to the finance, the financial institution or the customer, as the case may be, institute a suit in the Banking Court. Examining the grievance of the plaintiffs in the instant suit, the plaintiff has in fact alleged, failure on the part of the Bank to perform the obligation in terms of the agreement between the parties, inasmuch as, breach and violation of the Banking Ordinance, more particularly section 15(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 that led to filing of the instant suit for the relief of damages and injunctive relief. In my humble opinion, the relief sought and the claim contained in the suit emanates out of the relationship between the borrower and customers and clearly falls within the jurisdiction, of Banking Court. Under the circumstances, I would sustain the office objection. Since law favours adjudication on merits rather than striking the parties on technicalities, I would order that the suit to be transferred to the banking jurisdiction. Mr. Sultan A. Allana, learned counsel for the Bank may file leave to defendant application once notices in terms of the Banking Ordinance, 2001 are issued. Mr. Sami Ahsan, learned counsel for the plaintiffs points out that the ad interim orders are operating in the matter. Under the circumstances, ad interim orders shall remain to continue for two weeks. In case, the plaintiffs fail to seek any relief from the Banking Court under the law as stated above, it shall stand vacated. H.B.T./A-62/K Order accordingly.