2014 PLP 1636 (CLD)

M. SOHAIL IQBAL BHATTI, J.

Through this appeal the appellant has challenged the order dated 29-1-2010 passed by the learned Judge Banking Court No.II, Gujranwala, Camp at Sialkot, whereby the suit filed by the appellant/plaintiff was disposed of with an observation that the appellant/plaintiff may approach the proper forum if so advised.

2. Brief facts giving rise to the filing of the instant appeal are that the appellant/plaintiff filed a suit for declaration with a consequential relief against the respondents/ defendants. It was averred in the plaint that the appellant being a benami owner purchased one Deposit Growth Certificate amounting to Rs.10,000 on 28-12-1983 in the name of Mst. Nazir Begum and two Deposit Growth Certificates of Rs.5,000 each purchased on 28-12-1983 and 19-1-1984 in the name of one Sheikh Mohammad Amin Thapur. Thus, a decree was sought to be passed in favour of the appellant against the respondents to the effect that the appellant is the actual owner and holder of the above mentioned Deposit Growth Certificates. It was further prayed that the appellant may be declared to be entitled to receive the entire amount along with the mark up/interest and a decree for mandatory injunction was also sought directing the respondents to make payment in respect of the above mentioned three certificates along with the interest/mark up for the last twenty years till the date of encashment.

3. In response to the summons issued by the learned Judge Banking Court, Gujranwala-II, Camp at Sialkot, the respondent/defendant Bank filed an application for leave to defend the suit raising different preliminary objections. It was submitted by the respondent/defendant Bank that the appellant does not fall within the definition of a customer as given in section 2(c) of the Financial Institutions (Recovery Finances) Ordinance, 2001 and, therefore, the suit was not maintainable under section 9 of the Financial Institutions (Recovery Finances) Ordinance, 2001. The learned Judge Banking Court through the impugned order dated 29-1-2010 dismissed the application for leave to defend the suit moved by the respondents being filed after stipulated period; and disposed of the suit upon the statement made by the respondent Bank Manager that the certificates are in the name of Mst. Nazir Begum and Sheikh Muhammad Amin Thapur with the observations that the appellant should either obtain a succession certificate in respect of Deposit Growth Certificates from the Court of competent jurisdiction or he may seek a decree for declaration on the ground that the appellant is a benami owner of the disputed certificates. Hence, this appeal.

4. The learned counsel for the appellant argued that the learned Judge Banking Court No.II, Gujranwala, Camp at Sialkot, while passing the impugned order erred in law; the case of the appellant was within jurisdiction of Banking Court in terms of section 7 of the Financial Institutions (Recovery Finances) Ordinance, 2001. It was further argued that initially the appellant filed a suit for declaration with consequential relief before the Civil Court but the plaint was returned and upon the return of the plaint the suit was filed before the Judge Banking Court No.II, Gujranwala, Camp at Sialkot. The learned counsel has further relied on Haji Muhammad Nawaz Khokhar v. United Bank Ltd., through President and 3 others (2012 CLD 1709), Brig. (Retd.) Hamid-ud-Din v. Askari Leasing Limited and others (2005 CLD 898) and Abdul Majeed and others v. Amir Mohammad and others (2005 SCMR 577).

5. On the other hand, learned counsel for the respondent Bank has vehemently supported the order passed by the learned Judge Banking Court No.II, Gujranwala, Camp at Sialkot. It has been argued that aggrieved by the order of the Civil Court the appellant had filed an appeal which was withdrawn by the appellant on 23-9-2005 and no such fact has been mentioned in the plaint filed before the Banking Court but in paragraph 6 of the present appeal the factum of filing of appeal and its withdrawal has been mentioned. The learned counsel has further drawn our attention towards different provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to argue that the suit filed by the appellant was not maintainable before the Banking Court and the impugned order has been rightly passed.

6. We have heard the arguments advanced by learned counsel for the parties.

7. It would be appropriate to refer different provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to resolve the dispute involved in this appeal.

8. Section 2(c) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 reads as under:-- (2) Definitions.-- (a) ................................. (i) ................................. (ii) ................................. (iii) ................................. (b) ................................. (i) ................................. (ii) ................................. (c) "customer" means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier; The terms "finance" and "obligation" are defined in sections 2(d) and 2(e) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which are reproduced below:-- (2) Definitions.-- (a) ................................. (i) ................................. (ii) ................................. (iii) ................................. (b) ................................. (i) ................................. (ii) ................................. (c) ................................. (d) "finance" includes-- (i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate; (ii) facility of credit or charge cards; (iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution; (iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer; (v) a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted; (vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution. (e) "obligation" includes- (i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and (ii) any and all representations, warranties and covenants made by or on behalf of the customer to a financial institution at any stage, including representations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfillment of a promise; and (iii) all duties imposed on the customer under this Ordinance; and This brings us to section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which reads as under:-- "

9. Procedure of Banking Courts.

(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."

9. The accumulative effect of sections 2(c), 2(d), 2(f) and section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 would be 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 such as the case may be customer may institute a suit in the Banking Court. In the present case if the-argument of learned counsel for the appellant is accepted that Deposit Growth Certificates fall within the definition of finance as given in section 2(d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001; it remains as an undeniable fact that Deposit Growth Certificates are in the name of Mst. Nazir Begum and Sheikh Mohammad Amin Thapur. It is an established proposition of law that a Court or Tribunal, established under a special law, is a Court of limited jurisdiction and all the jurisdictional facts must exist before invoking the jurisdiction of a special Court or a Tribunal. If any of the jurisdictional fact is missing, the assumption of jurisdiction by special Court would amount to defective or excessive exercise of jurisdiction. In the present case, the appellant has failed to establish that he is a customer as defined in section 2(c) of the Ordinance, 2001. The suit under section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is only maintainable by a customer if a financial institution commits a default in fulfilment of any obligation with regard to any finance.

10. As far the reliance of the learned counsel for the appellant upon Haji Muhammad Nawaz Khokhar v. United Bank Ltd., through President and 3 others (2012 CLD 1709) we observe that the dispute involved in the said case related to the suit for damages which the appellant had suffered on account of the conduct of the Bank. Similarly with due reference to a judgment reported in Abdul Majeed and others v. Amir Mohammad and others (2005 SCMR 577). We observe that this judgment had arisen out of civil proceedings relating to a benami transaction and the august Supreme Court of Pakistan has laid down the principles for taking into consideration while determining the question whether a transaction is a benami transaction or not.

11. Undoubtedly, the term "finance" has wide connotation which includes the bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate.

12. To attract the jurisdiction of the Banking Court under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the appellant has to establish that he is a customer but in the present case the Deposit Growth Certificates are in the name of Mst. Nazir Begum and one Sheikh Mohammad Amin Thapur and it has been rightly observed by the Banking Court that the appellant should either obtain succession certificate from the competent Court of law or he may seek a decree for declaration to the effect that the appellant is the benami owner of the said certificates from the Court of plenary jurisdiction. The appellant sought indulgence of the Banking Court to obtain a decree for declaration to the effect that the appellant be declared a benami owner of the Deposit Growth Certificates which declaration, in our opinion, cannot be given by the Banking Court established under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It is correct that section 7(1)(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides that in exercise of its civil jurisdiction the Banking Court shall have all the powers vested in a Civil Court under the Civil Procedure Code 1908 but subsection (1) also provides that subject to the provisions of this Ordinance the Banking Court shall have these powers meaning thereby at the first instance the appellant is to establish that all other jurisdictional facts exist to invoke the jurisdiction of the Banking Court, and where the Banking Court has jurisdiction to adjudicate upon the matter it shall, in that case, have all the powers vested in a Civil Court.

13. For what has been discussed above, we are not inclined to interfere with the well reasoned order passed by the learned Judge Banking Court No.II, Gujranwala, Camp at Sialkot. Resultantly, this appeal stands dismissed. MAK/A-129/L Appeal dismissed.