' MAULVI ANWARUL HAQ, J.---On 1-4-1974, the respondent filed a suit against the appellant. The plaint was later amended and an amended plaint was filed on 3-9-1977. In this plaint it was stated that the plaintiff is holding a Fixed Deposit and Savings Bank Account with the appellant. On 13-2- 1974, the appellant informed the respondent that an amount of Rs,74,862.16 from the said account is being appropriated towards the alleged dues of two firms Messrs Gul Muhammad Khan Tareen Dad Factory and Messrs Gul Muhammad Khan & Sons, Multan. According to the respondent he was not connected with the said firms in any manner and is not liable for any dues/outstanding against the same. It was then stated that in the said letter and further letter dated 18-3-1974, the appellant has referred to some undertaking given by the respondent binding himself for repayment of the dues of the said firms. According to him he never executed any such document. With these averments he sought a declaration that his said deposit and the account is not liable for any claim against the said firm. Accordingly an injunction was sought directing the appellant to deposit the said amount in the relevant account of the respondent. The appellant filed written statement on 4- 11-1986. The form of the suit was questioned. It was objected that the suit should have been for recovery of money and the court-fee be paid accordingly. On merits, it was stated that the appellant has appropriated the said amount under the authority of the respondent given vide his letter of lien dated 29-10-1971. It was also stated that the partners of firms were close relative of the respondent. In his replication said averments were denied. Following issues were framed on 11-11- 1974:--
(1) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction?
(2) Whether the suit has become infructuous?
(3) Whether the plaintiff is estopped to bring the action?
(4) Whether the appropriation is illegal void for the reason stated in the plaint?
(5) Relief.
' Evidence of the plaintiff was recorded and concluded on 23-12-1983. Where after the case was being adjourned for evidence of the appellant and ultimately it was closed on 24-7-1990. A review application against this order was dismissed on 28-11-1990. At this stage, the jurisdiction of the Civil Court was questioned. Vide order dated 26-2-1991, learned Civil Judge Ist Class, observed that the case is to be transferred to the learned Banking Court. Accordingly the case was sent to the said Court. The case was taken up for the first time in the said Court on 7-3-1991. Learned Presiding Officer was absent. Ultimately it came up before the learned Judge Banking Court on 10-10-1991.
This time jurisdiction of the said Court was objected to. This objection was later withdrawn and the case was kept on being adjourned. Arguments were heard. Some written arguments were given by the respondent and some precedents were cited by the appellant. This was noted in order dated 30-1-2004. The suit was decreed by learned Judge Banking Court-I, Multan on 21-2-2004.
2. Learned counsel for the appellant argues that at the relevant time the provisions of Banking Tribunal Ordinance, 1984 were in force and learned Tribunal/Court should have proceeded further after transfer in accordance with the provisions of the said Ordinance. It is further contended that the only relevant document i,e, Exh.D.7, letter of lien, had come on record and notwithstanding the fact that it was not proved, the learned trial Court ought to have compared the admitted signatures on account opening form Exh.D.2 with the disputed signatures on the said document.
Learned counsel for the respondent, on the other hand, vehemently urges that the case was transferred from the civil Court on the objection of the appellant. Thereafter objection was raised to the jurisdiction of the Banking Court itself and then it was withdrawn. According to him adjournments spreading over several years were obtained by the appellant and upon its failure to produce the evidence as also relevant witnesses for cross-examination, evidence was closed. He also further contends that no objection was raised before the learned Banking Court that the said procedure be adopted. Finally urges that no prejudice stands caused to the appellant in any manner.
3. We have gone through the records of the learned trial Court with the assistance of the learned counsel for the parties. We have already reproduced above some history of the case. Now categorical plea of the appellant-Bank was that the respondent had given it an authority to appropriate the said amount against the dues of the said Firms by executing a letter of lien. Now we find that the statement of Dur Muhammad, respondent was recorded on 1-12-1987. Although he was confronted with the F.D.R. And the account opening form (Exhs.D.1 and D.2) respectively. He was not at all confronted with the said letter of lien, Exh.D.7. Now this document was produced by Muhammad Sher Hussain, Officer of the appellant-Bank (D.W.1). Now in the course of his examination in chief, he stated that on 29-10-1971, respondent had given a letter of lien Exh.D.7, and he had executed it in his presence. Now this statement was recorded on 18-4-1987. The witness was being cross-examined. He was put some questions with reference to record and he stated that he had not brought along the record. At this point, learned counsel for the respondent requested that an application had already been filed on 3-1-1980 for production of records. Recording of statement was suspended. This application was later allowed and then the Bank was called upon to produce the said record but the needful was not done. Thereafter despite several opportunities the said witness was not produced for further cross-examination and also the other evidence was not produced and the same was accordingly closed on 24-7-1990. No reason is forthcoming as to why the said witness was later withheld and as to why later the evidence was not produced.
4. Now upon the request of the learned counsel for the appellant we have compared the signatures of Dur Muhammad, respondent, present on account opening form, (Exh.D.2) (Admitted) and the said letter Exh.D.7. We may note here that the account opening form is dated 4-11-1970 while Exh.D.7 bears the date 29-10-1971. We have examined the two signatures with the assistance of the learned counsel for the parties and find dissimilarity in the same. More so in the joining of alphabets in the words MOHD and also alphabet K of Khan and also the joining of this later alphabets in this word.
5. Now coming to the said objection of the learned counsel this Civil suit itself remained pending from 1974 to 1991. The evidence of the respondent had been recorded while the evidence of the appellant had been closed after giving about eight years period to do the needful. The case went to the Banking Court and in the Banking Court, the case remained pending for 13 years. We called upon the learned counsel to demonstrate as to whether at any point of time it was claimed on behalf of the appellant that particular procedure under Banking Tribunal Ordinance, 1984, be adopted. Needless to state that the said Ordinance itself was declared void and repealed in the light of Full Bench Judge of this Court in the case Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and another PLD 1996 Lahore 672, and the case still remained pending for about eight years thereafter. Answer is in the negative. Thus in view of the said conduct of the appellant no prejudice stands caused on merits of the case. Reasons being that no attempt appears to have been made to make even an application for permission to produce the said witness or to lead evidence before the learned Banking Court where the case remained pending for about 13 years. We are, therefore, not inclined to entertain the said objection in this appeal.
6. For all that has been discussed above, R.F.A. Is dismissed. However, the parties are left to their own costs. Records of the learned trial Court be remitted back immediately.