2006 PLP 147 (CLD)

UMAR ATA BANDIAL, J.

This is a suit for recovery of inter alia, tortuous damages in the amount of Rs. 11 1.00 million claimed by the plaintiff-company against three defendants namely, defendant No.1 leasing company that issued a cheque of Rs. 19,30,000 in favour of the plaintiff which was encashed by defendant No.2 bank to the credit of defendant No.3- firm. The suit has been filed for various reliefs. including tortuous damages mentioned above and declaratory relief against defendant No.1-leasing company for falsely alleging against the plaintiff the grant and use of leasing finance.

2. The learned counsel for defendants Nos.l and 2 have objected to the jurisdiction of this Court to hear the present suit on the following grounds:-- (i) A suit for tortuous damages is not competent under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance"). Reference is made to Mehr Ashiq Hussain v. Citibank N.A. through Chief Manager and another 2006 CLD 167 D.B. Lahore and Messrs PEL Appliances Limited v. United Bank Limited 2005 CLD 1352. (ii) Without asserting a relationship of a customer and financial institution, and the breach of obligation by either of the foregoing persons with regard to finance, the present suit is not maintainable under the aforesaid Ordinance. Reliance is placed on Abdul Rehman Allana v. Citibank 2003 CLD 1843;

3. The foregoing objections have been defended by the learned counsel for the plaintiff on the basis of the provisions of section 7(4) of the Ordinance which provides as follows:-- "(4) 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."

4. The learned counsel for the plaintiff emphasizes that a decision as to the existence or otherwise of a finance is a matter to be decided exclusively by a Banking Court. As the plaintiff seeks a declaration against defendant No.1 with respect to the non-existence of finance alleged by defendant No.1 against the plaintiff, therefore, the present suit is maintainable against defendant No.1 purely for the said relief. When questioned as to how he justifies the claim of tortuous damages to be maintainable before this Court, the learned counsel for the plaintiff disputes the judicial view cited by the opposite side but has failed to state his proposition or otherwise cite any case-law.

5. In view of the settled law pointed out by learned counsel for the defendants that tortuous damages cannot form a claim in a suit filed under the Ordinance, the said relief for Rs.111.00 million prayed in the plaint is liable to be struck out and is so done. After the deletion of the relief of damages the valuation of the suit given in the plaint, which is based on the amount of damages claimed, ceases to have force. Resultantly, in so far as the remaining relief prayed in the suit is concerned, it shall have to be revalued which certainly cannot be or exceed Rs.50 million which is the pecuniary benchmark for suits triable before this Court. The claim for the remaining relief for declaration and ancillary relief prayed in the suit ought, therefore, be urged before the competent Banking Court that is seized of the suit filed by defendant No.1 leasing company against the plaintiff and the claim now alleged by the plaintiff may be heard as a counter suit.

6. In view of the foregoing discussion, and the striking out of the relief of damages prayed in the suit, the plaint in the suit along with the record is returned to the competent Banking Court for hearing the instant suit in respect of its remaining relief along with the suit filed by the defendant leasing company.

7. This order does not determine the other objections to the maintainability of the suit, raised by defendants Nos.l and 2 which shall, if so raised, be determined by the learned Banking Court. The office shall transmit file in the suit to the Administrative Judge-I/Banking Court No.1, Lahore. S.A.K./M-340/L????????????????????????????????????????????????????????????????????????????????????????????? Suit returned.