M. MANZOOR AHMAD PARACHA and 5 others vs HABIB BANK LTD. through President and 2 others

MIAN HAMID FAROOQ, J.---Present appeal proceeds against judgment and decree dated 16-6- 2004, whereby the learned Judge Banking Court-I, Multan, after finding that the Banking Court has no jurisdiction to try appellant's suit, returned the plaint, in exercise of powers under Order VII, rule 10, C.P.C., for it presentation before appropriate forum.

2. Briefly stated facts of the case are that the appellants, claiming to be the legal heirs of one Dur Muhammad Paracha, on 22-1-2004, filed the suit for recovery of Rs,2,00,00 000 as damages for malicious prosecution against the respondent-Bank, before the Banking Court, Multan, inter alia, pleading that the respondent-Bank filed the suit for recovery of Rs.1,31,570.90 against Dur Muhammad Paracha, who pleaded that nothing is outstanding against him, however, ultimately the suit was decreed, on 21-4-1983 which decree was challenged in appeal (R.F.A. No.35 of 1983). It was further stated that during the ensuing proceedings the representative of the bank produced a copy of letter in the Court.Showing that no amount outstands against Dur Muhammad Paracha and whereupon bank's suit for recovery was dismissed. It was the case of the appellants that on account of malicious prosecution in the form of suit for recovery, the appellants suffered losses to the tune of Rs.2,00,00,000. The respondent-Bank filed the application for leave to defend the suit stating that Dur Muhammad Paracha obtained the loan from the Bank, he did not 'repay the defaulted amount and for the recovery of the outstanding amount, the suit was filed, however, during the pendency of the appeal, the loan was adjusted, on 14-3-1988, therefore, it was stated before the Court that no amount is due against Dur Muhammad Paracha and the suit was dismissed.

The leave application was resisted by the appellants, the learned Judge Banking Court granted unconditional leave to appear and defend the suit to the respondents and also framed following issues, vide composite order dated 15-6-2004:- 11) Whether this Court has got the jurisdiction to try this suit? Op Parties.

(2) Relief."

The learned Judge Banking Court, heard the parties and after finding that the appellants were neither "customer" nor they availed any "finance facility", therefore, the Judge Banking Court lacks jurisdiction to adjudicate upon the matter, proceeded to return the plaint, in exercise of powers under Order VII, rule 10, C.P.C., to the appellant, to be presented before the appropriate forum, vide impugned judgment and decree dated 16-6-2004, hence the present appeal.

3. Learned counsel for the appellants states that the suit was frivolously filed by the Bank for recovery of "finance", statedly, availed by Dur Muhammad Paracha, therefore, appellants' suit for malicious prosecution was competent before the learned Judge Banking Court, who has the jurisdiction to adjudicate upon such-like matters. The learned counsel for the respondent-Bank has, however, supported the impugned judgment and decree.

4. We have heard the learned counsel and examined the available record. Admittedly, the appellants filed the suit for recovery, against the respondent-Bank, on the ground that the suit for recovery filed by the respondent-Bank against Dur Muhammad Paracha was frivolous and they in the capacity of the legal heirs of Dur Muhammad Paracha suffered losses. Undoubtedly, the appellants in their personal capacity did not enter into a banking transaction with the respondent- Bank neither they, availed any finance from the respondent-Bank. Section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) states that where a customer or financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or the customer may institute a suit in the Banking Court by presenting a plaint. It flows from bare reading of said provision of law that either a "customer" or a "financial institution", upon commission of default in fulfilment of any obligation with regard to the "finance", are empowered to file the suit before the Banking Court. The only question arises in this case is as to whether the appellants are the 'customers" and the financial institution committed ddfault in fulfilment of any obligation with regard to any "finance". The term "customer" as defined in section 2(c) of the Ordinance, 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 and a surety or an indemnifier. It is not the case of the appellants that they are the "customers". Additionally, the appellants do not fall within the definition of the "customer", as "finance" was never extended to them by the respondent-Bank, no guarantee or letter of credit was issued by the Bank on their behalf and they were neither "surety" nor "indemnifier". Similarly, no "finance", as defined in section 2(d) of the Ordinance, was provided to the appellants. The learned counsel for the appellants, when asked to show as to how the appellants are the "customers" and as to whether they availed any "finance" from the respondent- Bank, states that the appellants neither asked for providing any finance, nor it was availed by them.

As noted above, the Banking Court, under section 9(1) of the Ordinance has the jurisdiction to entertain the suit only filed by a "customer" or a "financial institution" with regard to the "finance". In the instant case, as held above, as the appellants were neither "customer" nor any "finance" was availed by them, therefore, the Banking Court had no jurisdiction to adjudicate upon their suit.

5. In the above perspective, we have examined the impugned' judgment and find that the learned Judge Banking Court has rightly returned the plaint in appellant's suit, in exercise of his powers under Order VII, rule 10, C.P.C., to be presented before the appropriate forum. The impugned judgment and decree do not suffer from any illegality and we are not persuaded to unsettle the same.

6. In view of the above, the present appeal is devoid of merits, hence stands dismissed with no orders as to cost:.