1. Mehta Kailash Nath Kohli, J.--This appeal under Section 96 of Civil Procedure Code has been filed against judgment and decree dated 15th March, 2004, passed by Civil Judge-V, Quetta, in civil suit No, 08 of 2002; whereby; suit of appellants-plaintiffs for recovery of Rs, 2,07,086/- as net amount with, damages/compensation amounting to Rs, 5,00,000/-, filed against respondent-bank has been dismissed.
2. Facts of the case, in brief, are that appellants-plaintiffs were maintaining savings account number 1895 with United Bank Limited, Shahra-e-Iqbal Branch, Quetta (respondent-defendant) since 23rd December, 1993; there were good relations between the appellants-plaintiffs and staff of respondent-defendant bank. It has been stated in the suit that in the month of August, 1996 an amount of Rs, 2,07,086/-was lying in the account of appellants-plaintiffs, in this regard entry in pass-book was already made by the respondent-bank, in the meanwhile; on 27th August, 1996, publication was made in daily newspapers, with regard to disappearance of Manager of respondent-bank namely Dost Muhammad Nasir, and misappropriation of crores of rupees of different accounts was alleged against said Manager of respondent-bank. It has been stated that Appellant-Plaintiff No, 1, who was mostly maintaining the alleged account while residing in Punjab, and an his return back to Quetta, he approached the respondent-bank to check his account position, when it transpired that an amount of Rs, 3,052/- are lying in his account instead of Rs, 2,07,086/-, in such circumstances, the then Manager and high officials of respondent-bank asked the Appellant-Plaintiff No, 1 to file his claim alongwith documentary evidence, consequently; appellant-plaintiff filed his claim on 10th September, 1996 alongwith certain available documents i,e, pass-book and one pay-in slip. On 6th January, 1997 the respondent-bank asked the appellant- plaintiff to provide complete record of the account, which was duly provided to the respondent- bank through application dated 24th September, 1998, but; the claim of appellants-plaintiffs was rejected by Regional Headquarters of respondent-bank on false and baseless reasons vide letter dated 31st July, 2000. It has been stated in the suit that from the year 1996 to 2000, the appellants- plaintiffs addressed several applications/claims to different :authorities, including Hon'ble Federal Ombudsman, but the claim of appellants-plaintiffs being genuine was not accepted by the respondent-bank, moreover; the outstanding amount of appellants-plaintiffs lying in the alleged account was also withheld by the respondent-bank without any justifiable reason. It has been further stated that appellants-plaintiffs are renowned businessmen of Quetta besides dealing in sale and purchase of properties, and on account of withholding of amount of plaintiffs, they could not operate the alleged account, and; by withholding the amount of appellants-plaintiffs, the respondent-bank has deprived them to invest the alleged amount and to earn the amount therefrom to the minimum tune of Rs, 5,00,000/-, hence; causing financial loss to appellants- plaintiffs, respondent-bank is also liable to pay damages/compensation to the appellants- plaintiffs. It is the case of appellants-plaintiffs that amount of the appellants worth Rs, 2,04,034/50 was illegally and un-authorizedly withdrawn by the above named Manager of respondent-bank being misappropriated by him, and the respondent-bank has either failed to account for or to pay back the same to them, lastly; the respondent-bank refused to pay the said amount. It has been stated that the claim of appellants-plaintiffs was kept pending for more than five years, which act of respondent-bank has caused great miscarriage of justice to the appellants-plaintiffs, hence; present suit was filed seeking following relief:-- "In the circumstances, it is, therefore, respectfully prayed that a decree for recovery of the suit amount may be passed in favour of plaintiffs against the defendant, in the following terms:--
(a) directing defendant to pay Rs, 2,07,086/- as principal outstanding amount;
(b) directing to pay Rs, 5,00,000 by way of damages/ compensation for illegal retention of the amount lying in the account of plaintiffs;
(c) awarding any other relief in addition to the above to which plaintiffs may also be found entitled;
(d) Awarding cost of the proceedings to plaintiffs against defendant-bank, in the interest of justice, equity and fairplay."
3. Written statement was filed by respondent-bank raising objections that; (a) the suit is barred by time; (b) plaintiffs have no locus standi to file the present suit, therefore, the same is barred under Section 42 of the Specific Relief Act and the same is liable to be dismissed; (c) no cause of action has accrued to the plaintiffs against the defendant, therefore the suit is liable to be rejected under Order 7 Rule 11(d), CPC; (d) plaintiffs have not filed claim in respect of the suit amount alongwith documentary evidence, therefore, the plaintiffs cannot claim any amount on the basis of evidence, which they have obtained from the Ex-Manager of the bank namely Dost Muhammad Nasir, who has committed fraud with the bank; (e) no notice before filing of the present suit was served upon the defendant-bank; (0 no details of so called damages/compensation have been mentioned in the plaintiff. On merits, case of appellants-plaintiff was also contested. Out of pleadings of parties, learned trial Court i,e, Civil Judge-V, Quetta framed following issues:-- "ISSUES:--
1. Whether the plaintiffs were holding an Account No, 1895 with defendant?
2. Whether an amount of Rs, 2,07,086/- lying in the account which was illegally and unauthorizedly withdrawn from the plaintiffs' account by the then Manager namely Dost Muhammad Nasar?
3. Whether the defendant illegally with-held the amount of the plaintiff, due to which Rs, 5,00,000/- loss was caused to the plaintiff?
4. Whether the plaintiffs are entitled to the relief claimed for?
5. Relief?"
4. The learned trial Court after framing issues, directed the parties to produce their respective evidence.
5. In support of their claim, appellants-plaintiffs produced PW-1 Haji Ahmedzai; PW-2 Ghulam Farooq son of Haji Muhammad; PW-3 Mushtaq Ahmed Awan (Petition Writer) having produced agreement (Ex: P/1) executed between appellant-plaintiff Saleh Muhammad and one Ahmedzai with regard to purchase of bus; PW-4 Khalid Mahmood, Manager U.B.L having produced documents (Ex: P/3 to P/6), as well as bank record (Ex: P/7 to P/16), and statement of appellant-plaintiff was also recorded. Record reflects that during trial, the learned trial Court without affording opportunity to lead evidence, closed the plaintiffs' side by means of order dated 19th December, 2002. Against aforementioned order, revision petition was filed by appellants-plaintiffs. The learned Revisional Court i,e, District Judge, Quetta vide order dated 24th February, 2003, set aside the order of trial Court, and remanded the case for providing proper opportunity of leading evidence to the appellants-plaintiffs to prove their case. However, again statement of appellant-plaintiff Salah Muhammad was recorded for himself and as attorney for remaining appellants-plaintiffs, who had produced deposit slips (Mark-P/1 & Mark-P/2). On close of appellants-plaintiffs evidence, statement of representative of respondent-Bank i,e, Khalid Mahmood (Manager) was recorded, who has produced record of the respondent-bank.
6. After conclusion of trial, learned Civil Judge-V, Quetta by means of judgment and decree dated 15th March, 2004, dismissed the suit of appellants-plaintiffs. Against aforementioned judgment and decree, present appeal has been filed before this Court.
7. Mr. Muhammad Qahir Shah, Advocate appeared on behalf of appellants-plaintiffs, while Mr. Muhammad Ayaz Sawati, Advocate appeared for respondent-defendant bank.
8. Learned counsel for-appellants-plaintiffs stated that the learned trial Court has mis-appreciated the evidence on record, and thus; the order of dismissal of suit is not warranted by law. It was specifically argued that the documents have been filed on record, which show that the amount claimed was deposited was misappropriated, and thus; the order of dismissal of suit is not legal.
9. On the other-hand, learned counsel appearing for respondent-defendant bank at the very out set stated that the Court below had no jurisdiction under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance XLVI of 2001), and thus; the Court could not have proceeded with the matter despite the fact that the matter had already been determined in their favour on merits. It was further stated that the documents, which have been filed, show that those were prepared afterwards in order to encash the amount, which never stood deposited.
10. We have considered the arguments advanced by learned counsel for the parties and perused the record. The appellants-plaintiffs have claimed a sum of Rs, 2,07,086/- towards the amount, which alleged to have been deposited by the appellants, while a sum of Rs, 5, 00,000/- has been claimed as damages, as having failed to perform the duties. It is an admitted feature of the case that the respondent-bank in its written statement has admitted that the savings account was opened.
11. Customer has been defined by Section 2(c) of the Financial Institutions (Recovery of Finances)
12. Ordinance, 2001; while 'finance' has been defined under Section 2 (d) of the Ordinance XLVI of 2001.
13. Definition of 'customer' is provided in Section 2(c) of Financial Institutions (Recovery of Finances)
14. Ordinance, XLVI of 2001, is reproduced herein-below:-- "2 (c) "customer" means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier".
15. The above definition contemplates to mean a person to whom a finance has been extended by the financial institutions and includes a person on whose behalf a guarantee or letter of assurance is issued by the financial institution, as well as, the surety and indemnifying the first part of this definition, refers to a person to whom a finance has been extended and does not include the claim relating to amount, if any payable by the bank to customer. At this juncture, it would become relevant to examine the word 'finance', as defined by Section 2 (d) of the Ordinance XLVI of 2001, which is reproduced herein-below: "2 (d) "finance" includes--
(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing, licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, muskarika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate; (ii)facility or credit or charge cards; (iii)facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue, or undertake on behalf of a customer with a corresponding obligation by the customer to the financial institution;
(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;
(v) a Benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted; (vi)any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility, availed by a customer from a financial institution."
16. From the reading of above provision, the facilities extended by the banking company to the customer have been included as a whole and even the decree passed by the Civil Court or the award given by an Arbitrator in favour of the bank, is part of this definition, while; claim of any person towards bank either in the form of amount deposited or damages claimed is not included in the above definitions. Section 9 of the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001, gives jurisdiction to a Court; Section 9(1), is relevant and is reproduced herein-below:-- "9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise."
17. From the reading and interpretation of all the three definitions, if read conjointly, it is abundantly clear that all the claims relating to advancement of loan, furnishing of bank guarantee, mark-up extending in favour of the bank, are triable by the Banking Court constituted under the said Ordinance. However, any liability claimed by any person, who is not figured or contemplated by word 'customer' and 'finance' cannot institute a suit. Though it has been admitted in the written statement that the account was opened by the appellant, however, the amount claimed was not accepted to be due. Thus, in the circumstances of the case, we are of the considered opinion that the claim and the subject-matter of the suit is triable by the Civil Court and does not fall within the ambit of Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
18. Coming to the merits of the case, the Issue No, 1 as stated above has been admitted by the respondent-bank with regard to maintaining of account and has rightly been decided by the trial Court in affirmative. So far as the Issue No, 2 is concerned, PW-1 has appeared and stated that the plaintiffs are doing business of transport on partnership basis with one Haji Jao Muhammad. They had purchased a bus from appellant-plaintiff Saleh Muhammad for a consideration of Rs,8,50,000/-. It was stated that an amount of Rs, 2, 50, 000/- was given to plaintiff, which was deposited by him in the, bank. He stated about execution of some agreement for the purposes of above account. PW-1 has also stated about causing of loss on account of non-payment of said amount. In cross-examination, he admitted that he is resident of Nawan Killi. He has stated that at the time of opening of account he was present alongwith plaintiff and was sitting near the counter.
19. He was suggested that he had not given deposit receipt. PW-2 Ghulam Farooq appeared and stated that the plaintiff had the business with UBL, Branch Meezan chowk. It was stated that Haji Ahmedzai and Haji Jao Muhammad had entered into bargain with plaintiff relating to local bus. It was further stated that Haji Ahmedzai and Haji Jao Muhammad had paid Rs, 2,50,000/-, which were deposited by plaintiff in UBL Branch, while Rs, 1,50,000/- was also 'paid by Haji Ahmedzai, which was also deposited in the account of plaintiff. It was stated that in 1996, he alongwith plaintiff went to bank, who hack drawn s. 30,000/-, while there remained more than Rs, 2,00,000/- in the account, and thereafter; plaintiff went to Peshawar, and on his return, it transpired that the amount of account was misappropriated. Several question were put, in cross-examination, and it was suggested that no fraud was committed with the plaintiff. He admitted that Dost Muhammad, Ex- Manager of UBL was their- neighbourer. He admitted that he alongwith plaintiffs are residing in one and the same house. PW3 Mushtaq Ahmed, petition writer appeared and produced an agreement, which was executed between plaintiff Saleh Muhammad, Jao Muhammad and Ahmedzai on 27th December, 1993. 'PW-4 Khalid Mahmood Tareen, Manager UBL had produced record Ex:P/2 to P/16 and stated to had produced photostat copy of Ex: P/2, which is a receipt. He had also produced Ex: P/3 to P/6 with regard to .deposit of the amount. He further stated that the said receipts were not in his record and the amount of counter foils number 79906436 and 79906437 are not part of his record; the cheque book was also not issued by the bank. He had produced documents i,e, Ex: P/7 to P/15 and the report (Ex: P/16), which contemplates that at some later stage, these receipts were produced and an enquiry report was made, which shows that the said documents had been fabricated and the claim was not genuine. It has been further proved on record that the said documents were forged having been fabricated at a later stage by obtaining signature of Manager of the bank. Plaintiff Saleh Muhammad appeared and reiterated the claim set up in the plaint. He had produced counter foils of alleged cheques (Mark-P/1 & P/2) and stated about execution of the document. He stated about fraud, which was committed in the bank and allegedly stated to have deposited a sum of Rs,2,60,000/-. He stated that he used to keep joint account deposit receipts, but the same were misplaced. He showed his ignorance that after rejection of the claim of plaintiff, other claims were also 'rejected, as the same were fdrged. Several suggestions were put and were denied. In rebuttal, Khalid Mahmood, Manager of respondent-bank stated that fraud was committed by the then Manager, and the said fraud was unearthed in 1996. All the customers were sought correction of their record and deposit of their claims alongwith cheques and documentary proof. A committee was constituted and enquiry was made; the plaintiff also had produced an application without record and stated that those receipts have been lost and thereafter he came forward with other application that he has now found the said receipts and deposited photostat of the said receipts.. Said receipts were checked from the available record and were not in consonance with the record and gave detailed statement with regard to alleged fraud of bank. In cross-examination, suggestions were put, were also denied. On the basis of evidence, available on record, the learned trial Court dismissed the suit.
20. From the perusal of record, we are of the considered opinion that the learned trial Court has properly appreciated the evidence on record and has drawn conclusions that the claim put forth was not based on genuine assertions and the receipts had been made afterward. It has also come on record that Dost Muhammad, the then Manager of the respondent-bank, who had committed fraud was neighbour of the plaintiffs. An enquiry committee had come to the finding that the said record does not tally with their available record; the witness produced by the plaintiff, have not corroborated the figures of amount claimed, and thus; the issues on merits have been rightly decided in favour of the bank, and; there is no mis-appreciation or misreading of record.
21. So far as, the question of damages, since we have already held that the claim of appellants is based on receipts, which are not genuine having not been proved and are not tallying with the record of the bank, thus; the appellants are not entitled to any damages in this behalf. The appeal filed having no merit, is accordingly dismissed with costs.