2002 PLP 251 (CLD)

Nemo for Respondents. Date of hearing: 12th October, 2001. The. petitioner/plaintiff has assailed the judgment dated 18‑10‑1997, passed by the Judge Banking Court‑I, Lahore, whereby the plaint, filed by the petitioner, was returned to him for presentation of the same before the proper forum.

2. Facts necessary for the disposal of this writ petition are that the respondent‑Bank filed a suit, on 26‑10‑1977, for the recovery of Rs.32,459 against the petitioner, which was decreed by the Civil Judge vide judgment and decree dated 28‑2‑1982. The petitioner also filed a suit for the recovery of 85.6 Long Tons of Pig Iron, pledged with the respondent, or for awarding compensation amounting to Rs.82,255.27, wherein the learned Civil Judge after framing the issues, transferred the suit to the Special Court Banking, Lahore, as according to the Civil Court it lacks jurisdiction on the subject vide judgment and decree dated 20‑11‑1990. Thereafter, the learned transferee Court refused to grant leave to appear and defend the suit to respondents Nos. l and 2, recorded the evidence and heard the arguments. However, after completing all the legal formalities, the learned Banking Judge ordered for the return of the plaint to the petitioner for presentation of the same before the proper forum. It was in these circumstances, the petitioner rushed to this Court invoking the Constitutional jurisdiction.

3. According to the office report P.C. Cards were issued to the respondents, but nobody has entered appearance on their behalf today, as such they are proceeded ex parte.

4. Learned counsel for the petitioner, while reiterating the contents of the writ petition has urged that the petitioner is in doldrums and on account: of two judgments, has been rendered remediless.

5. It appears that the suit for the recovery was instituted by the petitioner on 23‑2‑1985, when the Banking Tribunals Ordinance, 1984, was in force. According to section 6(1) of the aforesaid Ordinance, only the Banking Company was entitled to file a suit against a customer and the customer was not permitted to file a suit against a Banking Company, when it commits default. It flows therefrom that the only remedy available to a person, who intends to file a suit against a Banking Company in case of defendant was to resort to the Courts of plenary jurisdiction. I am of the considered view that at the relevant time, undoubtedly, the Civil Courts had the jurisdiction in the matter and, thus, the transfer of the suit by the Civil Court was not warranted under the law.

6. Banking Tribunals Ordinance, 1984, was repealed by section 28 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was promulgated on 31‑5‑1997. According to section 7(6) of Act XV of 1997, all the proceedings pending before the Special Courts‑‑‑‑‑‑‑‑ including a High Court shall automatically stand transferred to the newly‑constituted Banking Court, thus, if the original order passed by the Civil Courts for the transfer of the suit is considered to be illegal even then per force of this provision of law suit filed by the petitioner deemed to have been transferred to the Banking Court. Admittedly, when the impugned order was passed Act XV of 1997 was in force and, thus, the suit filed by the petitioner was deemed to be pending before the Banking Court, which was under an obligation to decide the same in accordance with law. The impugned order is against the provisions of law, which were in field at the time when the impugned order was passed.

7. Upon the examination of the impugned order I am of the considered view that the same cannot be maintained, as it was passed against the express provision of law.

8. On 30‑8‑2001, Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001) was promulgated and per force of section 29 of Ordinance, 2001, repealed Act XV of 1997. However, according to section 7(6) of the latest Ordinance all the proceedings pending in the Banking Court including a suit for the recovery shall stand transferred or deemed to be transferred and heard by the Banking Court established under the latest Ordinance. Now the aforenoted suit for recovery shall be deemed to be transferred and pending for disposal before the Banking Court newly‑established under section 5 of Ordinance, 2001 (XLVI of 2001).

9. In view of the above reasons and conclusions, the writ petition stands accepted and the impugned order dated 18‑10‑1997 is hereby declared as illegal, without lawful authority and having no legal erect. The result would be that the suit titled M.Anwar Saleem v. United Bank Limited and another, filed by the petitioner, shall be deemed to be pending D before the Banking Court, Lahore, constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the same shall be decided by the Banking Court after hearing the parties and, of course, in accordance with law. The parties are directed to appear before the Administrative Banking Judge, Lahore, on 30‑10‑2001, for the entrustment of the case to any Banking Court according to its own administrative arrangement. No order as to costs. S.A.K./M‑856/L Case remanded.