2009 PLP 49 (CLD)

The controversy involved in the matter pertains to the jurisdiction of Court which are enumerated as under: (i) Whether there exists relationship of customer and banker between the parties? (ii) Whether the Banking Court has no jurisdiction to try the case? The controversy has arisen as the appellant had obtained a credit card No.4941-2200-2813-706 since 2003 with limit of Rs.20,000 a high qualified having degree in MBA, running business under the name and style Textile Nexus, on account of some outstanding appellant deposited a sum of Rs.21,513 513 in the year 2001, upon which respondent's management had issued clearance certificate along with payment receipt dated 6-2-2003. Appellant applied for financial facility for his business transaction to other financial institution and was shocked that he was enlisted in defaulter, in Data Check List. The appellant was humiliated in the business community on account of unlawful and unjustified, arbitrary action of the respondent served a legal notice, which was replied by the bank derogatory to the banking practice and regulations, as a consequence thereof, the appellant has suffered a irreparable loss, harm, injury to his good name, credit and reputation and has resorted to file suit under section 9 of the Financial Institutions (Recovery of Finances Ordinance, 2001 before the Banking Court for declaration, permanent injunction and damages, which was returned to the petitioner for presentation before the competent Court having jurisdiction. Learned counsel for the appellant has contended that there exists relationship of customer and banker between the parties. It was appropriate for the trial Court to decide the case on merits. His further contention was that jurisdiction of general civil Court was barred as the statute had created a right provided machinery for the enforcement of such rights. It is next urged that Banking Court has no power to return the suit in terms of Order VII, Rule 10, CPC. Mr. M.A. Khan, learned counsel for the respondent has contended that the relationship between the customer and the banker in the financial institution had come to an end after the entire liability was cleared by the petitioner in February, 2003 against the credit card facility. The name of the appellant was not included in Data Check List by the respondent, such list was prepared by State Bank of Pakistan. We have considered the arguments advanced at Bar. There is no cavil that the jurisdiction of Banking Court is based under section 9 of the Ordinance reads as under:--

9. Procedure of Banking Courts.--(1) Where a customer of 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 Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise. (2)

(3)

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(5)

There could not be two opinions that the jurisdiction of the Banking Court is attracted when a customer or financial institution commits a default in fulfillment of any obligation with regard to any finance. In case of Abdul Rehman Allana v. The Citi Bank 2003 CLD Karachi 1843 for the exercise of the jurisdiction by the Banking Court three pre conditions have been laid down:-- (i) The plaintiff be either financial institution or the customer. (ii) Cause of action on default in fulfilment of any obligation. (iii) With regard to the finance i.e. subject matter. Appellant has restored to file suit for declaration, injunction and damages as well as for removal of his name from the Data Check List on the basis of breach of contract or commission of tort. In case of Nasimuddin Siddiqui and another v. United Bank Limited and others 1998 CLC 1718, the cases filed before the Banking Court established under section 2(b) of the Act, 1997 (which is pari materia of section 2(b) of the Ordinance, 2001) inter alia laid down:-- (a) All suits filed by the Banking Companies against the borrower or customer for recovery of Loan or Finance, either based on interest for mark-up as defined in the Act, 1997. (b) All suits or claims filed by a borrower or customer against the banking company claiming any adjustment, set off' or setting up a counterclaim either through an independent suit or in a suit filed by a Banking Company. (c) Suits for accounts arising out of a Loan or Finance as defined in the Act, 1997. (d) Suits for specific performance seeking enforcement of an agreement or contract to pay or repay any Loan or Finance or to perform any obligation arising out of such agreement. (e) All the suits for declaration as to legality, validity or otherwise of a document which creates Loan or Finance as defined in the Act, 1997. (f) All the suits for cancellation of any instrument through which any liability to pay or repay a loan or finance may arise. (g) All the suits for prohibitory injunction which may restrain any of the parties namely, banking companies, borrower or customer from performing their obligations and duties arising out of such business pertaining to loan or finance. In the manner, all suits in the nature of mandatory injunction. (h) All the suits for damages (excluding tort cases) arising out of the breach of contract executed in respect of Loan or Finance between the Banking Company on the one hand and the borrower or customer on the -other." We are of the considered view that Credit Card falls within the term of finance, the case of the appellant is based on torturous liability arising out of act and omissions of State Bank of Pakistan by placing his name on Data Check List, therefore, banking Court has no jurisdiction over a tort case based upon the damages. Impugned order does not call for interference. Consequently, appeal is not maintainable in law, hereby stands dismissed. S.A.K./M-206/K Appeal dismissed.