2008 PLP 759 (CLC)

SYED ASGHAR HAIDER, J.

The respondents Nos.1 and 2 filed a suit for specific performance and perpetual injunction against the petitioner. The petitioner filed an application under Order VII, rule 11, C.P.C. praying for rejection of the plaint, pleading that the trial Court has no jurisdiction to adjudicate and try the present suit, in view of the enactment of Financial Institutions (Recovery of Finances) Ordinance, 2001, as jurisdiction in this respect is bestowed exclusively upon the Banking Courts, the jurisdiction of Civil Courts is barred. The respondents contested the application. The trial Court after hearing the parties dismissed the application. Hence the present petition.

2. The learned counsel for the petitioner contended that the subject matter of the dispute viz. Property No.126/1, situated at Kot Lakhpat, Industrial Scheme Lahore is a mortgaged property with the NDFC (now vesting in the National Bank of Pakistan). The learned counsel in this context referred to a letter issued by the National Bank of Pakistan dated 29-4-2004 affirming this position and also to clause (h) of the compromise entered inter se the plaintiff and NDFC (it has been placed on record). To augment her arguments she referred to section 7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 whereby a complete embargo has been imposed on all courts, except the Banking Courts to adjudicate on disputes touching jurisdiction bestowed upon the Banking Courts. The provision has further been clarified with incorporation of section 15(11) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and extended to mortgaged properties with the banks. The learned counsel thus argued that the impugned order is illegal and contrary to the provisions of the said enactment.

3. Despite service and appearance by Mr. Muhammad Farooq Mirza, Advocate on 8-10-2007 and 2-11-2007 none has turned up today on behalf of contesting respondents Nos.1 and 2, therefore, they are proceeded against ex parte.

4. I have heard the learned counsel for the petitioner and perused the impugned order.

5. The precise objection raised by the petitioner in the proceedings before the trial Court was, whether it had jurisdiction to adjudicate or try the present suit or was its jurisdiction specifically barred under section 7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001. The language couched in this section clearly ousts the jurisdiction of the ordinary courts. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law, and it is a settled proposition of law, that whenever a special law is enacted, it takes precedence over general law. In the present matter a specific objection was raised that the subject matter of the suit is a property mortgaged with the National Bank of Pakistan (NDFC). The learned counsel for the petitioner adverted to a letter issued by the National Bank of Pakistan dated 29-4-2004 which indicated that plot No.126/1 situated at Kot Lakhpat Industrial Scheme Lahore, owned by Lahore Beverages Company (Pvt.) Ltd is mortgaged with National Bank of Pakistan. Reference was also made to an execution of a decree in this context, (Execution Application No.728 of 2002) filed by the National Bank of Pakistan (former NDFC) it also reflects that the respondent Lahore Beverage Company (Pvt.) Ltd is arrayed as judgment-debtor. Clause (h) of this petition reads: "(h) That all the security documents would remain intact and waiver/write-off involved in this settlement package if any will be considered by the bank only after the receipt of full and final payment of settlement amount as per the above terms and conditions." Section 15(11) of Financial Institutions (Recovery of Finances) Ordinance, 2001 reads: "(11) All disputes relating to the sale of mortgaged property under this section including disputes amongst mortgagees in respect of distribution of the sale proceeds shall be decided by the Banking Court." Therefore, it is absolutely clear and unambiguous that all disputes relating to a mortgaged property even inter se mortgagees, in respect of distribution of sale proceeds are to be tried by the Banking Court.

6. The trial Court itself adverted to the litigation inter se the National Bank of Pakistan and respondents Nos.1 and 2 and the property which is subject matter of the dispute, observing it stood excluded from the list of the mortgaged properties. How and upon what basis the learned trial Court so concluded is not decipherable from the record. Exh.C.1 referred to in the impugned order, does not so reflect, in fact it states that security documents would remain intact and waiver/write off involved in the settlement package will be considered by the Bank only after full and final settlement of the amount as per terms incorporated, but there is nothing on record to suggest that liability was extinguished and documents released. Therefore the reasoning adopted by the trial Court is incorrect and fallacious.

7. The jurisdiction in mortgage matters is exclusive to the Banking Court and the jurisdiction of the Civil Courts is barred in this context. 'Therefore, the impugned order is without jurisdiction and hence illegal.

8. Resultantly this petition is allowed, the impugned order is set aside and the plaint filed by respondents Nos.1 and 2 rejected as prayed for. S.A.K./L-1/L Plaint rejected.