2010 PLP 152 (GBLR)

MUHAMMAD NAWAZ ABBASI, C.J.

This petition has been directed against the order dated 30-9-2008 passed by the Chief Court, by virtue of which the writ petition filed by the petitioners questioning the jurisdiction of Banking Court to adjudicate the matter and passed the order challenged therein was dismissed. The learned counsel for the petitioners has submitted that a Banking Judge is appointed by the Federal Government with consultation of the Chief Justice of the High Court under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, whereas the presiding officer of Banking Court at Gilgit has not been appointed by the Federal Government and further he being and Additional District Judge is not qualified to be appointed as Banking Judge who must be either a District Judge or a retired Judge of High Court. The learned counsel for the respondent has conceded that appointment of Additional District Judge as Banking Judge, under Financial Institutions (Recovery of Finances) Ordinance, 2001 is not legal. Section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides as under:- Establishment of Banking Court.

(1) The Federal Government may, by notification in the official Gazette, establish as many Banking Court as it considers necessary to exercise jurisdiction under this Ordinance and appoint a Judge for each of such Courts and where it establishes more Banking Courts than one, it shall specify in the notification the territorial limits within which each of the Banking Courts shall exercise its jurisdiction. (2) Where more Banking Courts than one have been established to exercise jurisdiction in the same territorial limits, the Federal Government shall define the territorial limits of each such Court. (3) Where more Banking Courts than one have been established in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Banking Court to another. (4) A Judge of a Banking Court shall be appointed by the Federal Government after consultation with Chief Justice of the High Court of the Province in which the Banking Court is established and no person shall be appointed a Judge of a Banking Court unless he has been a Judge of a High Court or is or has been a District Judge. (5) A Banking Court shall hold its sitting at such places within its territorial jurisdiction as may be determined by the Federal Government. (6) A Judge of Banking Court, not being a District Judge, shall be appointed for terms of three years from the date on which he enters upon his office. (7) [The salary, allowances and other terms and conditions of service, of a person, appointed as a Judge of Banking Court shall be such as the Federal Government may determine.] (8) The Banking Court may, if it so requires, be assisted in technical aspects of Banking transactions involved in any case by an amicus curiae who has at least ten year experience of Banking at a senior management level in a financial institution of repute or the State Bank of Pakistan and has the following qualifications, namely:- (i) a degree in Commerce and Accounts or in Economics; or (ii) a degree in Business Administration, or (iii) has completed a course in banking from the Institute of Bankers Pakistan. (9) Remuneration of the amicus curiae and the party or parties by whom it will be payable, will be determined by Banking Court, keeping in view the circumstances of each case. The perusal thereof would unambiguously show that a District Judge or a person who has been a Judge of High Court can only be appointed as Banking Judge by the Federal Government in consultation with the Chief Justice of the High Court. Consequently, the objection of the learned counsel for the petitioners regarding the defect in the appointment of Banking Judge Gilgit and exercise of jurisdiction by him as such Judge is legal and in the light of law on the subject, we hold that the Additional District Judge Gilgit being not competent to discharge the function of Banking Judge will not exercise the powers as Banking Judge under Financial Institutions (Recovery of Finances) Ordinance, 2001. The Chief Judge of Chief Court, Northern Areas, in view of the importance of matter may send a reference to the Federal Government at an early date, with his recommendation for appointment of Banking Judge at Gilgit in accordance with the prevision of section 5 of the above Ordinance, so that cases pending before Banking Court at Gilgit can be decided by a competent Court in accordance with law. This petition is accordingly converted into appeal and stands disposed of in the above terms with no order as to the costs. M.H./18/Glt. Order accordingl