1. ' MRS. QAISER IQBAL, J.---The appellant through this appeal has impugned the order dated 5-6- 2002, passed by learned single Judge dated 4-7-2002, whereby the plaint in Suit No,532 of 1998 filed by the appellant was returned for presentation to the Banking Court having jurisdiction in the matter. The appellant being aggrieved of impugned order has resorted to file appeal, under sections 10 and 15 of Law Reform Ordinance, 1972.
2. ' The appeal emanates from the following facts and circumstances:-- ' The appellant has filed suit for recovery of Rs,19,42,000 against the respondents alleging that the appellant out of his own fund prepared a demand draft dated 7-3-1995 for a sum of Rs,9,20,000 from the respondent No,1-Bank in favour of Executive Engineer Building Project Division-II, Peshawar, entrusted the same to respondent No,2 at Karachi for presenting the same on behalf of the respondent No,3 with the tender documents tender was not accepted, pay order was returned to the respondent No,2 on 30-5-1995, the appellant contacted the respondent No,1 for issuance of duplicate demand draft, he was apprised that the said demand draft was encashed .In favour of respondent No,3 through respondent No,4 on 19-4-1995. It is averred that in violation of rules of banking procedure in practice, demand draft could only be encashed by the appellant or the Executive Engineer Building Project Division-II, Peshawar in whose favour demand draft was prepared. It is alleged that the respondents Nos.1 and 4 deliberately encashed the demand draft in favour of the third party, appellant has resorted to file the suit for recovery under the ordinary procedure provided in the Code of Civil Procedure.
3. ' In the written statement respondent No,1 admitted factum of the preparation of the demand draft, following encashment by respondent No,3 through respondent No,4. Respondents Nos.2 and 3 did not deny the' receipts of encashment of demand draft, the respondent No,4 in the written statement admitted that the demand draft was encashed through them and the amount was credited in the account. Respondent No,3, whereas the respondent No,4 further submitted that at relevant times the demand draft was got prepared by respondent No,3 had no locus standi to encash the same.
4. ' Mr. Moin Azhar, learned counsel for the appellant has contended that impugned order is not in conformity with law as the provision under section 2(c)(d)(I)(ii), 7(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 [Ordinance No,XLVI of 2001] (hereinafter referred Ordinance of 2001) not attracted to the appellant's case as the dispute did not fall within the purview of the term 'finance' and customer by no stretch of imagination it could be held the facts constituting the cause of action in the plaint having recourse to the ordinary jurisdiction emanates from a transaction not having exclusive jurisdiction of Banking Court It is contended that single Judge has erred in holding that Banking Court has jurisdiction to entertain the suit It is further contended that in the case of A.R.Y. (Pvt.) Limited v. Muslim Commercial Bank 2003 CLD 1601 on plain reading Act, 1997, terminology in relation to the institution in Banking Court was interpreted on the premises, where a borrower or a customer of a Banking Company commits a default in fulfilment of obligation with regard to any loan and finance in such situation the Banking Company or the borrower or customer's case could be instituted in the Banking Court similarly under section 9 of Ordinance, 2001 the Banking Court could assume jurisdiction only when a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, on the basis of above analogy suit was not treated as banking suit, it was directed to be registered on the original side jurisdiction.
5. ' Relying on the case of A.R.Y. Traders (Pvt.) Limited (supra), on distinction it was argued that the best course would be that matter be proceeded on the original side of this Court.
6. ' Mr. Aziz-ur-Rehman, learned counsel for respondent No,1 has invited our attention to section 7(4) of the Ordinance, 2001, whereby the stress has been laid upon term finance with particular reference to the existence otherwise of finance contended that respondent No,1 after issuing a demand draft did not refer the term to "payees account", under section 123 (of Negotiable Instruments Act) demand draft prepared in the name of the respondent No,3, executed for the benefit of the beneficiary could be encashed either by beneficiary or by respondent No,3. It is urged that the appellant being servant of the Engineering Department, Peshawar was not in a position to offer for availing the contract yet the demand draft presented by the respondent No,3 to the Engineering Department Division-II, Peshawar, itself has no implication to the case of the appellant who is stranger to the transaction, as well as to the respondent No,l.
7. ' Adverting to the word 'otherwise' as provided in section 7(4) of the Ordinance, 2001, reliance has been placed on the case of Lal Chand and 2 others v. Officer on Special Duty, Federal Land Commission and 3 others 1984 CLC 2396, which connotes that the proviso cannot be confined only to the transaction in the nature of gifts but also extended to other modes by which transfer of the land could take place or right or interest can be created.
8. ' We are of the same view as has been taken in PLD 1979 Lahore 375. Only view also the word 'otherwise' in the proviso in question embarrasses not only transaction in nature of gifts but also any other transaction, whereby the right or interest in land is transferred or created a transfer of land through exchange would also be covered by the word 'otherwise'.
9. ' Learned counsel for the respondent No,1 has placed reliance on the following case law:--
(1) Naseemuddin Siddiqui v. United Bank Ltd. 1998 CLC 1718;
(2) A. Habib Ahmed v. The Hong Kong and Shangahi 1999 CLC 1953 and
(3) Qayyom and another v. The Regional Manager Agricultural Development of Pakistan and others PLD 1977 Peshawar page 72.
10. We have considered the arguments advanced at bar. For examination of the jurisdiction of Banking Court under section 9 of the Ordinance, 2001, the Banking Court could assume jurisdiction where a customer or financial institution commits a default in fulfilment of any obligation with regard to the finance. Upon appraisal of the definition of the word "borrower" and "customer" on the basis of the averments in plaint, admitted or undisputed facts, the demand draft prepared by the respondent No, 1 on the request of the respondent No,2 is the basis of the cause of action which touches the business of the bank, used for the purpose of facilitating a party to procure a contract after respondent No,3 had failed in procuring the contract demand draft was encashed in favour of the respondent No,3 through respondent No,4. This fact determined the status of the respondent No,3 as customer.
11. We have carefully examined the contention raised by the learned counsel for the appellant from all angles, the present suit was instituted by the appellant pertains to a right accrued on account of non-fulfilment of an obligation arising upon a demand draft. Obligation is definite in section 3 means the obligation viz-a-viz. The finance and nothing more. The word finance does not contemplate in addition to a debt. Proviso of section 7(4) Ordinance, 2001 exclude the jurisdiction the jurisdiction of any Court with regard to any matter to which the jurisdiction of Banking Court explained including a position as to the existence or otherwise of a matter of finance, controlled by section 9(1) of the Ordinance which contemplates the presence of three preconditions for the exercise of jurisdiction of B Banking Court viz. That the plaintiff being either financial institution or the customer (2) the cause of action of default in fulfilment of any obligation (3) with regard to the finance i,e, subject-matter. The net result, of the above discussion is that the impugned order does not call for interference. The appeal is hereby dismissed with no orders as to cost.