1. ' FAISAL ARAB, J.---The respondent avails Credit Card facility from the appellant. In the June, 2005 statement of accounts, the respondent noticed a debit entry of Rs,21,900 towards a transaction with New Allied Electronics. As the respondent had not used his card for such transaction, he made a complaint to the appellant. Realizing its mistake, the appellant reversed the wrong entry in January, 2006.
2. ' The matter did not end there as in spite of the reversal of the disputed entry of Rs,21,900, the appellant's statements of accounts then started reporting another debit entry for Rs,4,953.96 towards late payment charges and service fee, which were debited on account of the earlier disputed entry of Rs,21,900. In this background the respondent had to seek reversal of this second disputed entry as well. However, the appellant did not reverse this disputed entry and continued to show it as an outstanding balance on its statements of account. The appellant also kept on repeatedly demanding these charges by issuing a series of demand notices, much to the annoyance of the respondents. In the notices, the appellant threatened to take legal action and diminish the credit worthiness of the respondent. Disgusted with such baseless demands, the respondent filed suit against the appellant in May, 2006 for rendition of accounts, declaration and permanent injunction. In the suit, while seeking declaration from the Banking Count that demand for Rs,4,953.96 was baseless and therefore, illegal, the respondent in paragraph 7 of the plaint reserved his right to claim damages for the mental torture that was caused to him on account of appellant's baseless and incessant demands. The A appellant failed to seek leave to defend the suit from the Banking Court as its application for such purpose was dismissed for non-prosecution.
3. However, when the suit was still pending, the appellant realized its mistake and reversed the debit entry of Rs,4,943.96 in December, 2006 statement of account.
4. ' Finally, the Banking Court decreed the suit in favour of respondent and declared that appellant's claim for the said: charges was illegal. While declaring so, the Banking Court went a step further and awarded sum of Rs,50,000 to the respondent as compensatory cost on account of disgrace and mental torture that was said to be caused to the respondent on account of appellant's illegal demands. It is the validity of awarding this compensatory cost of Rs,50,000 that is called in question by the appellant in the present appeal.
5. ' Learned counsel for the appellant Mr. M.A. Khan argued that a customer can institute a suit against a financial institution only when the financial institution has committed default in the fulfilment of any obligation in relation to a finance as defined in the said Ordinance and the award of compensatory costs on account of personal injury such as disgrace and mental torture said to be suffered by the respondent does not come within the ambit of section 9 of the Ordinance. He argued that for seeking any relief for personal injury, Banking Court is not the appropriate forum and the remedy lies before the Courts of ordinary civil jurisdiction.
6. ' The learned counsel for the appellant, in the alternative, also argued that the Banking Court could not have awarded compensatory cost as the same was not claimed in the suit and the relief so awarded was completely beyond the pleadings of the respondent. He elaborated his submission by stating that in paragraph ,7 of the plaint the respondent has himself stated that he reserves his right to claim damages for mental torture and therefore, the Banking Court travelled, beyond the scope of the suit in awarding compensatory costs. He concluded by submitting that award of compensatory costs is liable to be rejected on both the grounds i,e, lack of jurisdiction of the Banking Court and failure to seek the relief of compensatory costs in the plaint.
7. ' Learned counsel for the respondent Mr. Rizwan Ahmad Siddiqui on the other hand argued that power to grant such a relief emanates from section 21 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the Banking Court was fully empowered to award costs irrespective of the fact whether such a costs claim has been made in the suit or not. He therefore, submitted that there is no legal infirmity in the award of the compensatory costs by the Banking Court to the respondent.
8. ' In order to consider the argument of Mr. Rizwan Ahmed Siddiqui that section 21 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 empowers Banking Court to award costs, we shall examine its provisions. Section 21 of the Ordinance reads as follows:- "21. Application of fines and costs.--(1) Banking Court may direct, that the whole, or part of any fine or costs imposed under this Ordinance shall be applied in or towards--
(a) payment of costs of all or any proceedings under this Ordinance; and
(b) payment of compensation to an aggrieved party.
(2) An order under subsection (1) shall be deemed to be a decree passed under this Ordinance for purposes of execution."
9. ' Reading subsection (1) of section 21 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 with its heading, it becomes quite apparent that the provision of this section only prescribes the manner in which any fine or cost, that has already been imposed under some provision of the Ordinance, is to be applied. The provisions of section 21 of the Ordinance "by' itself do not empower the Banking Court to impose costs or fines. Nothing more can be red into the provisions' of section 21(1) of the Ordinance. Therefore, there has to be first imposition of costs and fines under some other enabling provision of the Ordinance before provisions of section 21 of the Ordinance could be applied. The argument of Mr. ,Rizwan Ahmed Siddiqui that section 21 of the Ordinance empowers Banking Court to imposed costs therefore, has no force.
10. Now adverting to the argument of appellant's counsel that the Banking Court is not empowered under the Financial Institutions (Recovery of Finances) Ordinance, 2001 to award compensatory cost on account of personal injury, we do not agree with this argument as well. No doubt, the scope of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is limited only to such suits where a default in the fulfilment of any obligation in relation to a finance has been committed but this does not mean that no claim at all for 'damages which is based on personal injury could be agitated before a Banking Court. A personal injury could arise on account of default in fulfilment of any obligation in relation to finance and an aggrieved party may claim damages as well. A claim for damages i,e, a claim for seeking pecuniary compensation is a relative term. Such a claim may arise on account of inquiry or loss caused by one to the other by, commission of tort or by breach of a contractual obligation. The claim for damages caused on account of commission of tort or by breach of a contract which has nothing to do with the default in the fulfilment of an obligation arising from a financial facility and covered under the definition of "finance" as provided in section 2(d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 obviously cannot be agitated before a Banking Court. However, a claim for damages, on account of any injury or loss caused by a Financial Institution to its customer, which has resulted from any default committed by the Financial Institution in the fulfilment of its obligation in relation to finance, can certainly be taken to the Banking Court for adjudication. Hence, a claim for pecuniary . Compensation could either arise from a tortuous act i,e, not based on any contract or a breach of a contractual obligation not pertaining to a accommodation or facility of finance as defined under section 2(d) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and for these two categories of claims obviously the Banking Court is not the appropriate forum. However, a claim for pecuniary compensation could also arise on account of the failure of a Financial Institution to fulfil its obligation in relation to any financial accommodation or facility. It is this category of claim which certainly comes within the scope of section 9 of the Ordinance and a suit relating thereto is always maintainable before a Banking Court. Therefore, there is no force in the first argument of appellant's counsel.
11. With regard to the other argument taken by appellant's counsel that the Banking Court not have awarded compensatory cost as the same was not claimed in the suit, we are of the opinion that there is sufficient force in this argument. From the contents of the plaint we have noticed that award of compensatory costs was completely beyond the pleadings of the respondent. In fact in paragraph 7 of the plaint the respondent has himself stated that he reserves his right to claim damages. Therefore, there was no legal justification for the Banking Court to travel beyond the scope of the pleadings and award compensatory costs on it own. On the basis of the respondent's pleadings, the appellant knew that at best the suit would be decreed against him in terms of the prayer clause. Therefore, the Court should not pass a decree which is beyond the scope of the pleadings more particularly when a defendant chooses not to contest the proceedings. No defendant to a suit who is being proceeded ex part can be taken by surprise and burdened with a decree which is beyond the scope of the pleadings of the plaintiff.
12. ' We therefore, hold that there was no legal justification to award any compensatory costs to the respondent. The respondent ought to have claimed such compensation in the plaint and sought relief regarding thereto in the prayer clause. In the absence of such pleadings, no decree. Could be passed on that account. The decree passed by the Banking Court in so far as it relates to award of compensation was beyond the pleadings of the respondent and is liable to be set aside.
13. ' By the short order dated 15-10-2009 this appeal was allowed and these are the reasons for the same.