MUNIR AHMAD SIDDIQUI and anothers vs FEROZE AHMED SIDDIQUI and 2

1. ' This is a suit for declaration, injunction and cancellation of documents filed by Plaintiffs Munir Ahmad Siddiqui and his father Rafiq Ahmad Siddiqui against Feroz Ahmad Siddiqui, who is brother of Plaintiff No,1 and son of Plaintiff No,2. The other defendants are Khatrani and Company and United Bank Ltd. The prayer in the plaint is to the following effect:-- "It is prayed that this Hon'ble Court may be pleased:--

(a) to declare that the House bearing No, A-35 Block 13-D, Gulshan-eIqbal, Karachi is the property of Plaintiff No,2 and the Plaintiff No,1 is Benami purchaser.

(b) to declare that Defendants in collusion with each other have played fraud upon the Plaintiffs by fabricating, forging and manipulating documents Annexure 'B', Annexure 'C', Annex. 'D', Annex. `E' and Annex. 'F'.

(c) to declare that any other documents forged/manipulated by the Defendants pertaining to disputed property in addition to documents mentioned in para (b) above are also fake, forged and fraudulent.

(d) to declare that the Defendants have acted illegally and in a mala fide manner by entering into monetary transaction on the basis of property owned by Plaintiff No,2 and existing in the name of Plaintiff No,1.

(e) to cancel Power of Attorney or any other deed, agreement, instrument executed in between the Defendants more specifically described in Paras (b) and (c) above.

(I) to grant permanent injunction restraining the Defendants from alienating, transferring, mortgaging and selling the said property or entering into any transaction putting the demised property under liens, burdens and appurtenances.

(g) to grant any other relief or reliefs as deemed appropriate in the eyes of law, and order Defendant No,3 to return the original documents of demised property to Plaintiffs.

(h) to award costs of the Suit."

2. ' On 14-1-1990 I called upon the counsel for the parties to satisfy me on the point whether the suit is barred under section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979. Mr. Akmal Wasim, Advocate for the Defendant No,3 conceded that the suit is barred under section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979, because it relates to the existence or otherwise of a loan. As against this Mr. Akhtar Mehmood learned counsel, who appears for the plaintiffs, with whom Mr. Raja Qureshi Advocate for the defendant No,1 and 2, also concurred, submitted that the suit is not barred under the above provisions of law. He referred me to the definition of word `borrower' which as contained in Clause (b) of section 2 of the Banking Companies, (Recovery of Loans) Ordinance, 1979, "means a person who has obtained a loan from a banking company and includes a surety or an indemnifier".

3. ' He then referred to clause (a) of subsection (1) of section 6 thereof which provide that" a Special Court shall have jurisdiction in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company." He concluded that since this suit is not a claim filed by a borrower against a banking company, nor by a banking company against a borrower, therefore, the ouster provided under subsection (4) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 will not apply to this case. He has relied upon the Division Bench decision of this Court in M/s. National Motors Ltd. v. M/s. Muslim Commercial Bank ltd.

4. Reported in 1982 CLC 236 where it was held as follows:- "Looking at section 6(1) (a) we find that the Special Court has the jurisdiction in respect of a claim filed by a Banking Company against a borrower or by a borrower against a Banking Company.

5. Since the appellant is neither borrower nor a Banking Company, therefore, a suit filed by the appellant, who is in the position of a creditor against the respondent Banking Company cannot be deemed to be covered by section (6)(1) (a)."

6. ' I do not agree with the contention of Mr. Akhtar Mehmood. By virtue of subsection (4) of section 6 of the Ordinance the jurisdiction of a Civil Court has not only been excluded in respect of a suit filed by a bank against a borrower or by borrower against a bank but it has also been excluded with regard to a decision as to the existence or otherwise of a loan.

7. ' Reference in this connection may be made to subsection (4) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979, which reads as follows:- "(4) 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, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court: ' Provided that nothing in this subsection shall be deemed to affect:-

(a) the right of a banking company to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or

(b) the jurisdiction of any Court such as is referred to in clause (a) or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day."

8. ' The ruling cited by Mr. Akhtar Mehmood is distinguishable from the present case. That suit was filed by M/s. National Motors against M/s. Muslim Commercial Bank for recovery of a certain amount on the basis of a banking-guarantee which the bank had given to National Motors on behalf of AEMCO, who had taken certain amount from National Motors for supply of spare parts and for the performance of the contract. Hence it was held that the plaintiff was on the contrary a creditor of the Bank and not a borrower from it. This is not the situation in this case. In the instant case the loan has been taken by defendant No,1 who is son of the plaintiff from United Bank Ltd., which is defendant No,3. This suit has been clearly filed, by his father, the plaintiff, inter alia, for a declaration that the said transaction of obtaining loan by his son defendant No,1 on the basis of property owned by plaintiff is mala fide transaction and therefore, is void. Thus this is a suit in which the existence of a loan obtained by a borrower from the bank is sought to be set at naught. This is what this Court cannot do in its ordinary jurisdiction as is clear from the perusal of subsection (4) of $.6 of the Ordinance. The plaintiff will have to file suit in the Special Banking Court as it is for nullifying a loan of a sum of Rs,3,10,498.34. Hence the plaint is returned to the plaintiff under Order VII Rule 10 C.P.C., for being presented in the competent Court.