MAULVI ANWARUL HAQ, J.---On 22-5-2004, the appellant filed a suit against the respondent. We will be referring the contents of this plaint in later part of this judgment. The respondent was served in the manner prescribed and it applied under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001. The application was resisted. Leave to defend was granted vide order dated 17-12-2005. On the same date folldwing issue was framed:-- "Whether the plaintiff is left with no cause of action?"
The parties were heard and vide judgment and decree dated 18-4-2006 the plaint was rejected.
2. Learned counsel for the petitioner contends that for the purposes of Order VII, rule 11, C.P.C. Only the plaint shall be looked into and the reliefs claimed by his client did fall within the jurisdiction of the Banking Court. He particularly argues that the relief of damages pertains to the relationship between the parties as a banking company and a customer. Learned counsel for the respondent, on the other hand, supports the impugned judgment and decree with reference to the records. ,3. We have gone through the records of the learned trial Court. We have examined the plaint. In para-1 thereof the status of the appellant was explained. In para-2 it was stated that the appellant is well reputed in the Government and private sector. In para-3, it was stated that the volume of business being conducted by the petitioner can be adjudged from the amount of returns of sales tax. In paras.4, 5 and 6 it was stated that the respondent sanctioned a facility of Rs.10 million. In para.7 it was stated that the respondent started harassing the appellant. In para-8 it was stated that it had been requesting the respondent to issue the bank account statement and to consider granting him relief under incentive schemes but the respondent issued notices on 24-11-2003 and 30- 3-2004. In para.10 it was stated that the appellant has. Learnt that the respondent has charged compound interest. In para-1 I it is stated that due to service of notice dated 30-3-2004 the appellant was defamed. Following reliefs were claimed:--
(i) That ra decree for the rendition' of accounts with regard to the above said financial assistance be passed in favour of the plaintiff against the defendant.
(ii) That a decree for the declaration with permanent injunction to this effect that the charge of compound interest by the defendant is illegal, unlawful and without any authority and has no value in the eve of law, the defendant be restrained from recovering the same .Through coercive measures as consequential relief.
(iii) That a decree for the recovery of token damages of Rs.10 million be passed in favour of plaintiff against the defendant with cost throughout.
4. The respondent Bank in its application stated than the appellant is a customer having been provided FAPC-1 limit of Rs.10 million and. FAFB-1 limit of Rs.10 million. All the relevant documents and securities were detailed. The original amount as also mark-up due against each of the facility was stated. We may note here that this application was filed on 26-6-2004. Thereafter, the respondent filed a suit against the appellant which was decreed by learned Judge Banking Court- IV 1 hore on 25-2-2005. This suit was filed on 4-8-2004. Certified copy of the judgment and decree was placed on record.
5. It will be seen that the complaint made was that copy of the statement of account has not been provided and a prayer was made accordingly. The relief of rendition of account was not available in view of passing of the said decree. The case of the appellant is that an application has been filed for setting aside the same. However, nothing turns on the same. The reason being that in case the judgment and decree is set aside, the said matter will be decided in the said suit as to how much amount is due and payable to the respondent, otherwise an ex parte decree is as binding as an inter parties decree.
6. So far as the claim for damages is concerned, it is in the plaint itself that the same is being claimed on account of defamation. It is by now well settled that a claim in tort is not within the jurisdiction Of Banking Court. However, we do find that so far as suit pertaining to recovery of damages is concerned, the learned Judge Banking Court after holding that it had no jurisdiction ought to have ordered return of the plaint.
7. This RFA accordingly is disposed of in the manner that while upholding the findings recorded by the learned. Judge Banking Court in the impugned judgment and decree, we order that the plaint inasmuch as it pertains to recovery of damages on account of defamation, shall be returned to the appellant for presentation before a Court of competent jurisdiction.
8. No orders as to costs. .
9. Records to be remitted back immediately by the office.