AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and others vs YAR

ORDER

1. ' KHILJI ARIF HUSSAIN, J.--By this Judgment we intend to dispose of C.P. Nos. D-361 to D-371 of 2003 as common question of law is involved in its. These petitions are arising out of the order dated 18- 0-2003 passed by the Banking Court No,2, Hyderabad dismissing an application filed by the petitioner Bank under Order 7, rule 10, C.P.C. Read with section 7(4) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, whereby the Petitioner Bank prayed for the return of plaint and to be presented before the Court of competent jurisdiction.

2. ' The brief facts for the purpose of disposing of these Petitions are that the respondent No,1 filed suits for recovery, damages, declaration and permanent injunction against the petitioners, a Banking Company. In the Memo. Of plaints respondents stated that respondents applied for the grant of finance under trade related modes of financing to petitioners who after observing formalities and obtaining sanction granted financial facility to respondents in each petition. The respondents mortgaged their properties as a security for repayment of the finance while executing other charge documents. It is stated in the plaint, that as the respondents failed to pay the amount of finance used and utilized by the respondents the petitioner got the respondents arrested and they were forced to pay the amount more than the amount due payable in terms of the agreement of finance executed between the parties. The respondents filed suits for recovery of excess amount forcibly recovered from them and further claimed compensation damages for their illegal detention. The suits were registered by Banking Court No,2 and the petitioner in the said suits filed an application under Order 7, rule 10, C.P.C. Prayed for return of the plaint to be represented before a proper Court having jurisdiction.

3. ' Heard Mr. Jehanghir Hussain Shah, learned Advocate for the petitioner. The learned Advocate, mainly argued that after adjustment of the finance/liabilities cf the respondent, Banking Court have no jurisdiction to entertain any claim even if same relates to finance provided by the Bank.

4. ' Learned Advocate further argued that, after the adjustment of the finance the respondent ceased to be a borrower/customer and as such they cannot maintain suit before the Banking Court, where only borrower/customer can initiate proceeding.

5. ' We have taken into consideration the arguments advanced by the learned counsel for the petitioner, and perused the record.

6. ' In order to appreciate the contention of the learned Advocate for the petitioner, we would like to reproduce subsection (4) of section 7 of the Ordinance, 2001 which reads as under: "Powers of Banking Courts.---(1) Subject to the provisions of this Ordinance, a Banking Court shall:- -- ' Subject to subsection (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of finance and the execution of the decree passed by a Banking Court.

(a) Nothing in such subsection (4) shall be deemed to affect:---

(b) The right of a financial institutions seek any remedy before any Court or otherwise that may be available to it under the law by which the financial institution may have been established; or

(c) The powers of the financial institution, or jurisdiction, or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before the coming into force of this Ordinance.

7. ' From bare reading of subsection (4) of section 7 of the Ordinance 2001 it appears that the Banking Courts have to exercise jurisdiction in respect to ant' mat ter to which jurisdiction of Banking Court has been extended under the Ordinance including as to existing or otherwise of the finance. The issue before the Banking Court is whether the amount recovered by the petitioner Bank under the finance agreement was in-excess of the finance which the respondent was liable to pay and in case any excess amount has been received by the Bank whether the petitioner Bank is liable to account for the same. In other words what the Banking Court is required in the suit is to determine about the existence or otherwise of finance. Subsection (4) of section 7 provided that the Banking Court have to exercise jurisdiction not only to the matter to which jurisdiction of the Banking Court has been extended under the Ordinance but also about the existence or otherwise of the finance.

8. By now it is settled that wherever terms "including" has been used its always means to enlarge ordinary meaning of words. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 conferred exclusive jurisdiction on the Banking Court to deal with the matter relating to and arising out of matter falling within its jurisdiction including determination of existence or non-existence of Finance/Loan.

9. ' The plaint of the suit before the Banking Court though not properly worded but suits before Banking Court in fact are suits for account and respondents are seeking relief that the petitioner Bank under coercion has taken the amount morethan which respondents were liable to pay and after determining the question about the non-existence of finance order may be passed for the refund of the amount paid in excess than the amount which respondents were liable to pay.

10. ' Section 22 of the Ordinance, 2001 prohibits an appeal, review or revision against an order accepting or rejecting an 'application for leave to defend or against an interlocutory order passed by the Banking Court which does not dispose of the entire case before the Banking Court. In view of the clear bar about the maintainability of an appeal, review or revision against an interlocutory order normally Court would also not like to interfere in exercise of its writ jurisdiction against the E interlocutory order as same may amount to frustrate the specific provision of law which was incorporated for the purpose of speedy disposal of financial matteRs, We would like to observe here that in exceptional circumstances, in order to meet the ends of justice Court can exercise its Constitutional jurisdiction and entertain a petition, if it is satisfied that there is no other alternate remedy and to ask the petitioner to wait till the final disposal of suit same may result in miscarriage of justice.

11. ' We are not making comments on the merits and demerits of the case as it may prejudice interest of either of the parties before the Banking Court. The petitioner's Advocate failed to point out any jurisdictional defects in the order. The suit filed before the Banking Court is not suit for damages alone but is also for the amount which according to respondent the petitioner has recovered over and above the amount payable under agreement of finance.

12. ' For foregoing reasons the petition is dismissed in limine. These are the reasons of short order dated 12-02-2004.