2011 PLP 262 (CLD)

MUHAMMAD TASNIM, J.

This contempt application shall be heard and decided along with main suit.

2. With the assistance of learned counsel for the parties, following issues are framed:-- (1) Whether the suit is maintainable in its present form? (2) Whether the defendants charged the mark-up as offered by them? (3) Whether the defendants behaved responsibly as per the good banking practices as enumerated in various regulations issued by State Bank of Pakistan from time to time? (4) Whether the defendants are justified in encashment of the plaintiffs valuable securities for the meagre disputed amount? (5) Whether loss occurred to the plaintiff due to early and abrupt encashment of securities? (6) Whether the cause of action against other defendants in the same as against the defendant No.1 hence this honourable Court has jurisdiction to try any party concerned with the same cause of action? (7) Whether the defendants Nos.2 and 3 are necessary parties to properly adjudicate the matter i.e. to establish the bad and unethical banking practice committed by the defendants? (8) Whether the defendants are liable to pay damages caused to the plaintiff? (9) What should the decree be? List of witnesses within seven days. At the request of learned counsel for the parties Mr. Abbad-ul-Hussnain, Advocate, Office No.301, Light House. Centre M.A. Jinnah Road, Karachi is appointed Commissioner to record evidence of the parties. Fee of Learned Commissioner shall be Rs.10,000 per witness, which shall be borne by respective parties for their respective witnesses. Parties are free to lead their evidence by filing affidavit-in-evidence along with original documents, on which they intend to rely. Learned Commissioner shall not grant adjournment to any party more than once and all subsequent adjournments shall be subject to payment of cost of Rs.10,000, 50% of such cost shall be retained by learned Commissioner and other 50% shall be deposited in the account of High Court Employees' Benevolent Fund. Commission shall be returned within six months from the date of order of this Court. Learned counsel for defendants submit that respondents Nos.2 and 3 have been added unnecessarily in this proceedings as they cannot be joined as defendants in Banking Suit. My attention has been invited to provisions of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter called "Ordinance 2001"), which provides procedure of Banking Courts, subsection (1) whereof is quoted hereunder:

"(1) Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise." The perusal of -above quoted provision would indicate that where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint. Subsection (1) of section 9 of the Ordinance, 2001 provides that either the customer or Financial Institution may bring the suit before the Banking Court. In view of the matter, learned counsel for defendants say that defendants Nos.2 and 3 be, deleted from the array of defendants and matter may be proceeded against defendant No.1 only, who is Banking Company/ Financial Institution. On the other hand learned counsel for plaintiff has submitted that there is no bar of joinder of other parties apart from the Financial Institution and the Customer. He in support of his contention has invited my attention to the provision of Order I, Rule 10, C.P.C., as also Order II, Rule 6, C.P.C. The reference to the provisions of Civil Procedure Code, in the circumstances, is misplaced as the present suit has been filed under the Banking jurisdiction under Ordinance, 2001, which provides a procedure under section 9 of the Ordinance 2001. Provisions of Civil Procedure Code are applicable in the Banking Suit, where such enactment is silent. Reference can be made to subsection (2) to section 7 of Ordinance, 2001. Since section 9 of the Ordinance provides procedure and joinder of defendants Nos.2 and 3 is in violation of provisions of subsection (1) of the section 9 of the Ordinance, their presence in the present proceedings is unnecessary. Accordingly office is directed to delete the names of defendants Nos.2 and 3 from the array of defendants with Red Ink. H.B.T./M- 191/K Order accordingly.