HIGH NOON TEXTILE LTD through Authorized Attorney and 2 others vs SAUDI

' MIAN SAQIB NISAR, J.---Admittedly, petitioner No,1 has availed the finance facility from respondent No,1 and the agreement in this regard dated 5-12-2003 was executed at Islamabad; thereafter, on account of default in the discharge of its obligation, said respondent has instituted a suit for the recovery of an amount of Rs,2,68,73,633 against the petitioner No,1 and the other petitioners on account of being the Director/Guarantors of the principal borrower in the Banking Court at Lahore; the petitioners through the instant petition seek a direction to the learned Banking Court, Lahore to return the plaint, so as to be instituted at Islamabad/Rawalpindi on the basis that in the hypothecation agreements of the even date, there is a forum selection clause such as that in case of dispute between the parties, the matter shall be decided by the learned Banking Court at Islamabad/Rawalpindi; besides, in the guarantees executed by petitioners Nos.2 and 3, such clause has also being incorporated; he states that on account of the judgments reported as Pahrianwali Sugar Mills through Deputy Chief Executive and others v. Pak-Libya Holding Company (Pvt.) Ltd. And others 2004 CLD 161, Bankers Equity Ltd. v. Iqas Weaving Mills (Pvt.) Ltd. 2001 CLC 169, State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393, Messrs Kadir Motors (Regd), Rawalpindi v. Messrs National Motors Ltd, Karachi 1992 SCM R 1174, Tahir Tariq Textiles Mills (Pvt.) Ltd. Through Chief Executive and 2 others v. National Development Finance Corporation 2003 CLD 1546 and Tahir Tariq Textiles Mills (Pvt.) Ltd. Through Chief Executive and 2 others v. N.D.F.C. Through Chairman 2001 YLR 846 the exclusive jurisdiction clause ousts the jurisdiction of the Banking Court at Lahore.

2. Controverting the above, learned counsel for the respondents states that the parties resides at Lahore; supplemental agreements were executed at Lahore, in which there is no such specific jurisdiction clause; the default in the payment of the finance has been committed by the petitioner at Lahore; rescheduling of the finance by issuing sanction advise was made at Lahore, resultantly, the learned Banking Court at Lahore in terms of section 20, C.P.C. Read with sections 5 and 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, shall have the jurisdiction. He further states that petitioner No,1, who is the principal borrower in the matter, has not taken any plea of territorial jurisdiction in its PLA and it is settled law that as per section 21 of the C.P.C., such plea should be raised at the earliest.

3. In reply thereto, learned counsel for the petitioners states that the guarantee agreement is an independent agreement and therefore, at least to the extent of the guarantors, the Banking Court at Islamabad/Rawalpindi shall only have the jurisdiction in the matter.

4. Heard. On account of the law cited by the petitioners' counsel, there can be no cudgel with the proposition that the parties can validly agree for the conferment of jurisdiction upon one of the two Courts, which have concurrent jurisdiction to the exclusion of other and the agreement in this behalf in the normal circumstances is binding upon the parties thereto. However, it has been noticed in this case that there is no specifically deliberated or negotiated agreement between the parties, rather the hypothecation agreements and the guarantees instruments to which reference has been made by the petitioners' counsel are in the usual and routinely Printed and cyclostyled forms, which are signed by the parties in ordinary course; in such documents the respondent No,1 for its own convenience has put in the forum selection clause. And in my view, for such agreements/documents, the rules of interpretation are different, from the construction of the documents, which are specifically negotiated containing conscious and deliberated stipulations, it is obvious from these documents that the exclusive jurisdiction clause is meant for the benefit of respondent No,1, rather than the petitioners, and if the said respondent has given up its choice of the exclusive forum, and has itself instituted the suit at Lahore, the petitioners cannot make any grievance on that account, particularly in the situation when the sanction advice for restructuring has been issued at Lahore; supplemental agreements were executed at Lahore; the petitioners including the principal borrower also resides at Lahore; the principle borrower has not taken any objection about the territorial jurisdiction of the Court in the PLA. It is the settled law that the creditor can follow the debtor and institute the suit where the latter resides in the ordinary sense; moreover, the rule regarding the forum of convenience shall also be attracted.

' In the light of above, I do not find this to be a fit case for the exercise of my constitutional jurisdiction. Dismissed.