2008 PLP 1129 (CLC)

NADEEM AZHAR SIDDIQI, J.

The office has raised the following objection with regard to the maintainability of suit:-- (I) It appears that the defendants Nos.1 and 4 and the plaintiffs are customers and joint mortgagors/owners of the suit property and the defendant No.2/Bank and thereafter the plaintiffs and defendants Nos.1 and 4 and one Sarwar Khan had availed the financial facility from the defendant No.2/Bank and the defendant No.2/Bank had filed Banking Suit bearing Suit No.735 of 1994 under the Banking law against the plaintiffs and defendants Nos.1 and 4 and one Sarwar Khan for recovery of Rs.69,78,234.16 on 11-4-1994 before the learned Banking Tribunal for Sindh at Karachi vide copy of the plaint as Annexure "P.3"at pages 37 to 63 and copy of the mortgage deed as Annexure "P.4" at pages 65 to 77, and the above noted suit was decreed by judgment dated 21-6-1999, and decree, dated 1-9-1999 as per copies of the judgment and decree as Annexure "P.10" and "P.11" at pages 91 to 119 and thereafter the plaintiffs had filed an application under section 12(2), C.P.C. in the execution proceedings being Exh. No.15 of 2000 in Suit No.735 of 1994, before the learned Banking Court as Annexure "P.13" at pages 127 to 137 and the instant application under section 12(2), C.P.C. filed by the plaintiffs is still pending before the learned Banking Court at Karachi and the suit in respect of prayer clauses (a) and (b), is hit under section 12(2), C.P.C. read with section 11 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The main prayer of the plaintiffs is for declaration to the effect that mortgage deed executed by defendant No.1 in favour of defendant No.2 on the basis of unregistered power of attorney is illegal and void. The plaintiffs claim that the power of attorney executed in favour of defendant No.1 was cancelled and the mortgage deed was executed after cancellation of the power of attorney. The plaintiffs have also filed an application under section 12(2), C.P.C. before the Banking Court in Exh.No.15 of 2000 for setting aside the judgment in Suit No.735 of 1994 on the plea that the property was mortgaged in collusion with the staff of bank. The plaintiffs by this suit have indirectly challenged the mortgage deed as well as the judgment passed by Banking Court. The learned counsel for the plaintiff submits that the plaintiffs have claimed cancellation of power of attorney and the relief of cancellation cannot be granted by the Banking Court. The effect of cancellation of power of attorney will directly affect the mortgage deed as well as the judgment of the Banking Court. The plaintiffs in this suit cannot challenge the mortgage deed as well as the decree of Banking Court. Subsection (4) of section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides that subject to subsection (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court. A prayer, which cannot be granted directly, can also not be granted indirectly. The jurisdiction of Banking Court is attracted where a customer or a bank commits default in fulfilling of obligation with regard to any loan or finance. The loan was obtained in the name of the plaintiffs by using the power of attorney executed by the plaintiffs. The plaintiffs have not disputed the execution of power of attorney. The plaintiffs are the borrowers and have a dispute with regard to finance facility availed from a bank. The plaintiffs have already filed application under section 12(2), C.P.C. which is pending before the Banking Court and in that proceedings the question whether the power of attorney was cancelled and thereafter loan was obtained can be thrashed out and that the Banking Court can effectively grant relief to the plaintiffs subject to proof. The proceedings under section 12(2), C.P.C. is in the nature of suit and after amendment in C.P.C., the judgment and decree cannot be challenged by way of separate suit and can only be challenged by filing an application under section 12(2), C.P.C. In view of the above the plaint may be returned to the plaintiffs after retaining a copy on record. It is, however, observed that in case the Banking Court held that the said Court has no jurisdiction to entertain application under section 12(2), C.P.C. the plaintiffs may present/file the suit in this Court. H.B.T./I-37/K Order accordingly.