1993 PLP 1996 (SCMR)

2. The petitioners in all these petitions filed civil suits for rendition of accounts and permanent injunction against the Respondent Bank in the Court of Senior Civil Judge. The learned Senior Civil Judge returned the plaint on the ground that he did not have territorial jurisdiction. The learned High Court while deciding certain legal points in favour of the petitioners finally dismissed the appeal by holding that the Special Banking Court has the exclusive jurisdiction in the matter.

3. We have heard the, learned counsel for the parties. The learned counsel for the petitioners submitted that there are conflicting judgments of the High Courts of Peshawar and Karachi on the point of jurisdiction. It is, therefore, a fit case for grant of leave to appeal. The Peshawar High Court in Nabiullah and another v. Habib Bank Limited (PLD 1990 Peshawar 17) has held that "we have arrived at the clear conclusion that the suit filed by the appellants before the learned Special Judge constituted under the Banking Companies Ordinance was properly filed before him and he had the exclusive jurisdiction to adjudicate upon it and the suit was neither entertainable by the Tribunal constituted under the Banking Tribunals Ordinance nor it had jurisdiction to adjudicate upon the claim in dispute. We will, therefore, accept this appeal, set aside the impugned judgment of the learned Special Judge and remand the case back to him with the direction that he shall proceed in the matter in accordance with the provisions of 'the Banking Companies Ordinance". The Sindh High Court in Shafiq Hanif (Pvt.) Ltd. v. Bank of Credit (PLD 1993 Karachi 107) has held otherwise and observed: "The Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984 cover an identical subject namely, recoveries in relation to banking business. It is only the nature, implications and incidents of such business, which distinguish these statutes and furnish the basis which determines whether one or the other may be attracted for seeking legal relief. Comparison would reveal that the common denominators .in these enactments are a banking company, a "borrower" or "customer" as equivalents and a special forum that may be approached in‑case of disputes. If it is a "loan" based on interest etc., which is sought to be recovered or questioned the 1979 Ordinance would be attracted but if it is "finance" of a non‑interest bearing character remedy by a banking company is to be sought under the 1984 Statute for the first of which a Special Court is the exclusive forum but for the second relief is obtainable from a Banking Tribunal. "Loan" has a nexus with a "borrower" and "finance" is connected with a "customer", both, as defined respectively in 1979 and 1984 Statutes. An examination of the quoted provisions makes it obvious that in relation to a claim filed by a banking company against a "customer" in respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of sections 5 (1) (a) and 5 (3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction is further confirmed when section 5 (3) of the 1984 Legislation makes the tribunal also judge of "the existence or otherwise of finance", a similar legislative precedent as to "loan" being found in section 6 (4) of the Banking Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic tribunal, unless otherwise provided, cannot be judge of its own jurisdiction. Nonetheless, but conversely, it will still remain for the Civil Courts to see, if called upon to do so, as to how far the statutes have operated to curtail their jurisdiction. Here, we at once find that a Banking Tribunal, relevant to the same provisions, as referred has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be relating to "finance" (as defined) provided by the Banking company to the "customer". The omission appears to be deliberate because in the same context the equivalent provision in Banking Companies (Recovery of Loans) Ordinance, namely, section 6 (1) (a) thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against a "borrower" or by a "borrower" against a banking company pertaining to a "loan" contracted within the terms of such Ordinance. It follows that if a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance" provided to him and covered by the Ordinance, he cannot file such an independent suit before a Banking Tribunal."

4. The respondent also made an application before the High Court under section 6 (4) of Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as Ordinance, 1979) for transfer of the case to the Special Court. The High Court after holding that Special Court has exclusive jurisdiction did not allow it and directed the return of the plaint. As the subject‑matter of the dispute is fully covered by the provisions of Ordinance, 1979, the judgment of Sindh High Court is, therefore, inapplicable, to the present case though generally principles laid down in this judgment are correct. The view taken by the Peshawar High Court is not legally correct.

5. The Ordinance, 1979 and Ordinance, 1984 are two statutes covering the same filed having certain distinguishing features. The peculiarity of the two statutes is creation of special forum established for the recovery of amount due. In the matter of "loan" the provisions of Ordinance, 1979 would apply. For the recovery of amount called "finance" Ordinance, 1984 would be applicable. The case of Agricultural Development Bank is, however, different and we will deal with it in the later part of the judgment.

6. In order to appreciate the legal controversy between the parties, we may refer to the relevant provisions of the Ordinance, Agricultural Development Bank Ordinance, 1961 (hereinafter referred to as Ordinance, 1961), Banking Companies Ordinance, 1962 (hereinafter referred to as the Ordinance, 1962) and Banking Tribunals Ordinance, 1984 (hereinafter referred to as the Ordinance, 1984). By means of Notification No. F.1 (2) Bkg‑IV/88‑2198 dated 1‑10‑1992 the provisions of Ordinance, 1979 have been made applicable to the Agricultural Development Bank. `Banking Company' has been defined in section 2 (a) of the Ordinance 1979 as follows:‑‑

"Banking company" means a Bank as defined in the Banks (Nationalisation) Act,1974..." "Banking Company" has been defined in section 3 (b) of Act 1974 as under:‑‑ `a banking company incorporated by or under any law within the legislative competence of Parliament, including... Agricultural Development Bank of Pakistan'." `Loan' has been defined in section 2 (d) of Ordinance 1979 as follows:‑‑ `Loan' means loans, advances and credit as defined in the Banking Companies Ordinance, 1962." According to section 5 (gg) of Ordinance 1962 "loans, advances, and credit" includes "finances" as defined in Banking Tribunals Ordinance, 1984. "Loan" has not been defined in Ordinance of 1984. "Finance" has been defined in section 2 (e) as under:‑‑

Finance' includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark‑up or mark‑down in price, hire‑purchase, lease, rent‑sharing, licensing, charge or fee of any kind, purchase and sale of any property, including commodities, patents, designs, trade marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy‑back arrangement by a seller, participation term certificate, Musherika certificate, Madarba certificate, term finance certificate or any other mode other than as accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether refund based or non‑refund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided." In Ordinance 396i, section 2 (jj) defines "loans, advances and credit" and includes "finance" as defined in the Banking Tribunals Ordinance, 1984 and all cognate expressions shall be construed accordingly. Under the Ordinance of 1984, "customer" has been defined in section 2 (c) "as a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier". According to section 5 (1) of Ordinance 1984, a Flanking Tribunal in exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908. Section 5 (3) of Ordinance, 1984 confers exclusive jurisdiction on Banking Tribunal with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, section 6 (1) (a) of Ordinance, 1979 confers civil jurisdiction in respect of claim filed by a Banking Company against a borrower or by a borrower against a banking company. According to section 6 (4) of this Ordinance no Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance.

7. The aforesaid provisions would make manifestly clear that though Ordinance 1979 and Ordinance 1984 relate to the same subject‑matter but the sphere of both the laws is distinct in certain matters. In the case of Agricultural Development Bank of Pakistan the Special Court constituted under Ordinance 1979 has the exclusive jurisdiction. The Special Court would have the jurisdiction in cases of "loans", "advances", "credit" and "finance". Another difference between these two Ordinances is that a borrower may also file a claim in Special Court under Ordinance 1979 but a customer under Ordinance 1984 has no such right to approach the Banking Tribunal.

8. There is constraint on the power of Civil Court. It cannot encroach on the domain of Special Court. The civil remedy in respect of the subject‑matter of the present dispute is expressly barred by the provisions of Ordinance, 1979 against the respondent bank. All the disputes between the petitioners and the bank are to be adjudicated upon by the Special Court, constituted under the Ordinance. The finding of the learned High Court on this score is unexceptionable.

9. The learned counsel for the petitioners then submitted that the proper course for the High Court would have been to transfer these matters to the Special Court instead of returning the plaint to the petitioners for presentation to the proper forum. Section 6 (4) of Ordinance 1979 contemplates that "any matter pending in any Court immediately before the commencing day shall stand transferred to the Special Court. Though this provision relates to those matters which were pending in any Court before the commencing day but the technicalities in such matters are to be avoided. The Court has inherent jurisdiction to do complete justice and avoid as far as possible technicalities of procedure. There should be rational approach to the matter. Principle of justice demanded for transfer of case to a competent forum. Both the learned counsel have agreed that these matters may be transferred to the Special Court for decision. Accordingly the suits filed by the petitioners are transferred to the Special Court. An order of status quo was passed by this Court on 3‑4‑1993. This order will be operative till an application is moved by the petitioners to the Special Court within reasonable time. The Special Court will decide such application on merits. The petitions are accordingly dismissed with the above observation. AA./G‑401/S Petition dismissed.