1. This Civil Revision is directed against the impugned order of Banking Court-I at Sukkur dated 27.8.2005 in Suit No. 275 of 2002 dismissing the application under Order 7, Rule 10, C.P.C, moved by the defendants seeking return of plaint.
2. The plaintiff instituted suit for recovery of Rs. 34,554,841.26 against the applicants. Plaint shows that financial assistance was provided to the applicants by the Bank for which the documents were executed at Sukkur. The disbursements of the installments was effected at Sukkur while the customer carries on business and resides at Larkana. The customer filed application for leave to defend under S. 10 of the Financial Institutions (Recovery of Finance) Ordinance 2001. (Hereinafter referred as the said Ordinance) before the Banking Court at Sukkur, It is admitted that in or about year 2000, Banking Court having territorial jurisdiction at Larkana was established. The Industrial Development Bank also has its branch at Larkana.
3. On the point of maintainability of this Civil Revision, Mr. A.M. Mubeen Khan placed reliance on Ms. Afshan Ahmed v. Messrs. Habib Bank Limited and another (20O2 CLD 137). The contention of Mr. A.M.
4. Mubeen Khan learned. Counsel for the applicant is that the objections- as to jurisdiction had been taken by the customers, in their application under Section .10 of the said Ordinance On 3.11.2003. An application under Order 7, Rule 10, C.P.C, was moved on 27.8.2005. On the same ground as was taken in the application for leave to defend. He contended that the jurisdiction has now been conferred in pursuance of provisions of Section 5 of the said Ordinance pertaining to matters of Larkana upon the Banking Court at Larkana, since established; therefore, the Banking Court at Sukkur is- not, seized of jurisdiction to entertain the present suit. Learned counsel proceeded to argue that in view of provisions of Section 5 of the said Ordinance which has an overriding effect in pursuance to the non obstinate clause contained in Section 4 of the said Ordinance,, Provisions of Section 20 of Civil Procedure Code has no bearing therefore Banking Court at Larkana .Has exclusive jurisdiction to entertain the matter, In support of his contentions, he has placed reliance on the case of Ms. Afshan Ahmed v. Messrs 'Habib Bank Limited and another (2002 CLD 137|, Central Cotton Mills Limited and another v. Atlas Bot Lease Co. Limited and two others (1998 SGMR 2352), Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly N. W.F.P, and another (PLD 1995 SC 66), Munawar Hussain and 2 others v. Sultan Ahmed (2005 SGMR 1388) and Major (Retd.) Barkat Ali and others v, Qaim Din and others (2006 SC MR 562).
5. Mr. David Lawrence appeared in response to notice- issued to the respondent at Katcha Peshi stage: Learned "counsel contended that the point of jurisdiction of the Court . Has already been raised as a preliminary legal ground by the customers in the application under S. 10 of the Said Ordinance, however, matter was not proceeded with by learned counsel on account of delaying tactics adopted from time to time including amongst, others, application under Order 7, Rule 10, CP C. Whereby the same ground Was. Taken by the customers in the application for leave to defend was re-agitated. He further contended. That the present application is hit by expressed provisions of Section 22(6) of the said Ordinance; that the Banking Court at Sukkur has jurisdiction in pursuance of the provisions of Section 20, C.P.C, r/w S. 5 of the said Ordinance as well. Plaintiffs under the terms of the agreement approached to the Court at Sukkur which is the Court of competent jurisdiction to adjudicate the matter, In support of his contention, he relied upon pase of Messrs. Brady & Co. (Pakistan) Limited v. Messrs. Sayed Saigol Industries Ltd. (1981 SCMR 494), National Bank of Pakistan and 4 others v. Gamman Pakistan Limited (PLD 1990 Karachi 209), and, Muhammad Yasin and two others v. Ch. Muhammad Abdul Aziz (PLD 1993 SC 395).
6. Perusal of the record in light of contentions of learned counsel reveals that the case of Ms. Afshan Ahmed (supra) involved a suit instituted by the Bank against a dead person a Application for return of plaint moved by the petitioner was dismissed by learned Trial Court while ordering the petitioner being legal heir of deceased to be joined as a party to the suit. The Constitutional Petition preferred against the impugned order was dismissed and order of learned Trial Court was upheld after examining the provisions or Banking Companies (Recovery of Loans) Ordinance, 1979.
7. Before examining the first contention of learned counsel as to the maintainability of this Revision Application we may reproduce relevant sections of the said Ordinance.
4. Ordinance to override other laws. The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
8. Right to appeal is conferred under Section 22 of the said Ordinance, it reads:-
22. Appeal. - (1) Subject to sub-section (2) any person, aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court. .
9. (2)----- (3)----- (4)----- (5)-----
(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court-other than an order passed under sub-section (11) of Section 15 of sub-section (7) of Section 19.
10. In the instant case, applicant approached this Court after his application under Order 7, Rule 10, C.P.C, was dismissed while the application for leave to defend under S. 10 of the said Ordinance in which the same plea has already been raised is pending. The points relevant for consideration are whether in the first instance application under Order 7, Rule 10, C.P.C, can be moved under the circumstances of the present case, It is well-settled by this time. No application for seeking relief or interlocutory relief is maintainable on the same ground which has already been taken in the application under Section 10 of the said Ordinance seeking leave to defend as it would amount to splitting up of the application to seek decision in parts. As and when application under Section 10 of the said Ordinance is considered and leave to appeal is decided by learned Banking Court, Further, the question, of invoking the jurisdiction of this Court has also been settled. The powers available to the Court for entertaining an appeal, revision and review are exercised only to the extent conferred by such statutory provisions. Indeed, inherent powers Of the Superior Courts for.
11. Examining the jurisdiction on the touchstone of circumstantial limitation are available but no such ground has been agitated before us. Section 22(6) of the said Ordinance while providing for the remedy by way of Appeal also lays down scope of such appeal. The appeal can only be filed against the Judgment, Decree, Sentence or final Order.
12. The provisions of aforesaid Ordinance are distinguishable from those of the Banking Companies (Recovery of Loans) Ordinance, 1979. With profound respect and humility at our command, we are in respectable agreement with the observation made by the Divisional Bench of this Court in Ms. Afshan Ahmed's case. However, that case suit was instituted against a dead person, In view of the different nature of facts we are inclined to hold that the same being distinguishable from the facts of this case, In the present case provisions of Section 22(6) are attracted and the application is hit by the specific provisions of Section 22(6) of the said Ordinance, is not maintainable.
13. The second contention is based on ground of jurisdiction of the .Banking Court at Sukkur, Section 20 of the Civil; Procedure Code confers jurisdiction on the Courts under three different conditions, namely, territorial, accrual of cause of action and residence of parties. Provisions of Section 5 of the said Ordinance only pertains to the territorial jurisdiction of the Banking Court while question of accrual of cause of action and residence,, of parties has not been touched or dealt with by the aforesaid section. We are of the humble opinion that giving effect of Section 4 of the said Ordinance, question of territorial jurisdiction as conferred under Section 5 is attracted, however, as Section 5 is silent on the question of accrual of cause of action, .The provisions of Section 20 of Civil Procedure Code are attracted to the Banking Court under provisions of S. 1(1 )(a) r/w sub-section 2 of Section 7 of the said Ordinance are attracted as to exercise of powers of Courts to entertain suits where the cause of action accrues, whole or in part within the territorial jurisdiction of the particular Banking Court.
14. In case if more than one Banking Court has jurisdiction to try the matter suit cannot be rejected on mere ground that, any other Banking Court is also ..Competent to try the case, In the instant case there is sufficient material on record to show that the cause of action accrued within the territorial limits of the jurisdiction of the Banking Court at Sukkur before which the suit is instituted.
15. Under the circumstances we do not find that this ground raised by learned counsel is tenable. This Civil Revision is therefore dismissed in limine.