2005 PLP 898 (CLD)

4. The word 'customer' has been defined in clause (c) of section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It reads as under:‑‑ "(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." It means that a person:‑‑‑ (a) to whom finance has been extended by a financial institution, (b) on whose behalf a guarantee or letter of credit has been issued by a financial institution, and (c) a surety or an indemnifier is included in the term of 'customer'. The appellant is neither the person to whom finance has been extended by the defendants nor he is a surety or an indemnifier. No guarantee or letter of credit has been issued by the respondents on behalf of the appellant in their general import. The word 'finance' has been defined in clause (d) of section 2 of the mentioned Ordinance of 2001, and it is as under:‑‑ "(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 copyright, bills of exchange, promissory notes or other instruments with or without buy‑back arrangement by a seller, participation tern certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate; (ii)

(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)

(v)

(vi)

The certificates issued to the appellant/plaintiff in themselves were promissory notes/or instruments/participation term certificates on one side, and on the other, were financial engagements with the defendants for which the defendants had undertaken on behalf of the 'customer' to indemnify him, and, therefore, the appellant was covered by the definition of 'customer' to that extent. The defendants had issued the certificates of investment to the appellant in the above mentioned three appeals and had undertaken to indemnify him or any one else on his, behalf on the basis of the said certificates.

5. A Court of law has to assume jurisdiction regarding a cause when its territorial/ financial jurisdiction is clearly mentioned in a law and in such circumstances, no other Court or any other forum has the jurisdiction to deal with such a cause. It is, however, the basic duty of a Court of law to do justice to the parties in the light of the circumstances of a case. A party may acquiesce to the jurisdiction of a Court for certain matter which has been brought to that Court by the opposite party, although the Court may not accept its jurisdiction for that matter. But when the jurisdiction of the Courts/forums is not clear, in the circumstances of a case, and one Court/forum has refused to assume jurisdiction and has declared that any other Court/forum has the jurisdiction for such matter, the latter Court/forum may seriously consider the question of jurisdiction at the very start of the proceedings and may decide the question of its jurisdiction in clear terms, without leaving the parties to a dispute in darkness for later stages of the Court/forum without any objection to it. It becomes the duty of such Court/forum to do justice to the parties and to right a wrong on the basis of the merits of a case, as the Courts are established for doing the justice and undoing the wrong.

6. In the circumstances of the present case, the learned Judge Banking Court‑II, Peshawar has erred in the application of the relevant law to the case of the appellant. The certificates issued were financial engagements of the appellant with the defendants, his amount was utilized by them and the defendants had undertaken to either pay the amount with profit or to indemnify the appellant to the extent of his rights on the basis of mentioned certificates. The learned Judge Banking Court‑II, Peshawar had, therefore, the jurisdiction, as he had initially assumed it, to take the case of the parties to its logical conclusion, and to do justice to the parties in accordance with law, specially in the circumstances that the parties had consented to the jurisdiction of the Banking Court at Peshawar.

7. In these circumstances, we accept all the three appeals of the appellant, set aside the impugned order dated 18‑10‑2004 of the learned Judge Banking Court‑II, Peshawar, remand the cases to the said Court, and direct that the learned Judge Banking Court‑II, Peshawar, shall proceed with the cases, from the stage immediately before the stage of passing of the impugned order, till its final end. M.B.A./369/P Order accordingly.