Haji MUHAMMAD NAWAZ KHOKHAR vs UNITED BANK LIMITED through President and 3 others

' IBAD-UR-REHMAN LODHI, J.---The appellant at the first instance filed suit in the civil court for redress of his stated grievance and to get damages from the Bank, which according to the appellant, he was entitled on account of the misdeeds and violation of contractual obligations on the part of the Bank or its officials, causing personal damages to the appellant as surety/indemnifier.

2. The Bank appeared in the said suit and moved an application under the provisions of Order VII, Rule 11, C.P.C., seeking rejection of the plaint of the said suit, mainly on the ground that the civil court lacks jurisdiction to adjudicate upon the matter relate-able to the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The learned Civil Judge ceased of the matter instead of applying penal provisions of Order VII, Rule 11, C.P.C., in alternate opted to return the plaint by application of provisions of Order VII, Rule 10, C.P.C. Vide order dated 8-7-1998.

3. After return of plaint from the civil court, the appellant presented the same in the Banking Jurisdiction of this Court by means of C.O.S. No,155 of 1998, somewhere in October, 1998. It remained pending in this Court for more than a period of 4 years and after lapse of such time, the respondent-bank through C.M. No,559-B of 2002, sought rejection of the plaint of the suit of the appellant again under the provisions of Order VII, Rule 11, C.P.C., which ultimately taken up by a learned Single Judge of this Court on 22-1-2003 and it was held that the suit was not triable by this Court and plaint was ordered to be returned to the plaintiff/appellant for institution of the same before the court of competent jurisdiction. The order so passed is now subject matter of the present appeal. Paras 8 and 9 of the impugned order are relevant for the present purposes, which are reproduced herein below:-- "(8) Since the present suit has been filed by the plaintiff in his personal capacity or in his capacity as Director of a public limited company, I am, therefore, of the opinion that this Court has no jurisdiction to entertain and try the present suit. Plaintiff has not sued the defendants with regard to his capacity as guarantor, indemnifier, mortgagor or surety i,e, obligations arising out of finance. The present suit, thus does not relate and does not arise out of finance or advance by United Bank Limited to N. Khokhar Textile Industries Limited.

(9) In view thereof, the cause raised in the suit, is not triable by this Court. In absence of jurisdiction, the provisions invokeable are contained in Order VII, Rule 10, C.P.C. And not in Order VII, Rule 10, C.P.C.

' This application is, therefore, disposed of with the direction that plaint be returned to the plaintiff for institution of the same before the Court of competent jurisdiction, if so advised. Documents be also returned along with the plaint as per procedure".

4. The appellant challenges the legality of order dated 22-1-2003 through the present appeal i,e, F.A.O. No,90 of 2003.

5. Learned counsel appearing for the appellant by referring firstly the order passed by the civil court, as noted above and the stance taken by the bank before the civil court in non-suiting the appellant there-from and the contents of his plaint has argued that it was at the objection of the respondent-bank that the civil court returned the plaint of the appellant and when the plaint was presented and the same was entertained and was being adjudicated upon here in this Court, the respondent-bank applied the same weapon to injure the appellant and the same penal provisions are being attracted against the appellant before the forum, which was subsequently opted by the appellant for redress of his grievance.

6. Learned counsel for the respondent-bank has now taken a stance that it is the civil court, which has got jurisdiction to entertain suits like present one and the jurisdiction was rightly refused to be exercised by the learned Single Judge of this Court in Banking-Jurisdiction.

7. We have heard, learned counsel for the parties and perused the record.

8. From the contents of the plaint, it is but obvious that the appellant/plaintiff preferred a suit for damages on account of his stated sufferings, which were caused due to the misfeasance on the part of the bank or its officials.

9. The honourable Sindh High Court in case of STATE BANK OF PAKISTAN v. CHIRAGH SUN ENGINEERING LTD. And another (2000 YLR 1198) has held that a person cannot be allowed to seek ouster of the jurisdiction of an exclusive forum established by law by merely adding a claim in the nature of a tort' arising out of legal relationship constituted by a contract for finance facilities. As such an interpretation would obviously obviate one of the main objects of the Act, 1997 to constitute a special forum for adjudication of disputes between the banks and the borrowers/ customers.

10. The honourable Peshawar High Court in case of fAYYUM NAWAZ KHAN and another v. THE REGIONAL MANAGER, AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, DERA ISMAIL KHAN and 4 others (PLD 1997 Peshawar 72) has held as under:-- "(7) So far as F.A.O. No,3/93 is concerned, the learned trial Court on the one hand came to the conclusion that he has got no jurisdiction and returned the plaint under Order VII, Rule 10, C.P.C. For presentation before the proper forum, but at the same time allowed the appellants to amend their plaint. The dispute between the parties relates to the recovery of Advance by the ADBP and the Banking Tribunal constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979, has the exclusive jurisdiction, therefore, the learned trial Court was right in returning the pliant to the appellants under Order VII, Rule 10, C.P.C. For presentation before the proper forum.

Consequently, F.A.O. No,3/93 is dismissed.

(8) As far as F.A.O. No,4/93 is concerned, the trial Court has also no jurisdiction to entertain the suit with regard to damages which is an off-shoot of the main suit for declaration and which has been returned to the respondents for presentation before the proper forum. Resultantly F.A.O. No,4/93 is accepted, the impugned order dated 11-7-1993 with regard to the finding of the trial Court that the Civil Court has got jurisdiction in respect of the relief for compensation for defamation etc. And permission for the consequential amendment in the pliant, is set aside and the learned trial Court is directed to return the plaint in toto to the respondents for presentation before the proper forum.

However, the parties are directed to burden their own costs."

11. From what has been discussed above, it can safely be held that no one can be left without any remedy and if a wrong has been committed with him and he is in search of some redress against such wrong, there must be some forum available to entertain his claim and to adjudicate upon the proceedings instituted by such person. In the present case the conduct of the bank is nothing, but to make the appellant a shuttle-cock in between different forums for redress of his grievances.

After return of the plaint from civil court, the appellant rightly availed the forum of Banking Court, which with reference to pecuniary jurisdiction, was at the relevant time lying with this Court in its Banking-Jurisdiction.

12. The result is that the impugned order passed on 22-1-2003 in C.M. No,559-B of 2003 in C.O.S. No,155 of 1998 is set aside by allowing this appeal and the C.O.S. Would be preceded for its regular trial.