' MUNIB AHMAD KHAN, J.--- This appeal has been filed against the judgment dated 1-8-2001, passed by the Banking Court No,1, Karachi in Suit No,675 of 2000.
2. The facts coming on record as recorded in the judgment are as under:- "The plaintiff has claimed that the defendant was working as Assistant Vice President in the plaintiffs branch and was dismissed on 12-9-1996. It was claimed that defendant in his PIS Saving Account No,01-108- 0866-7 availed Temporary Over Draft Finance Facility fraudulently and now an amount of Rs,24,83,155 is payable by the defendant. Hence plaintiff filed this suit and prayed for a decree of Rs,24,83,155 against the defendant with mark-up at 58 paisas per thousand per day with cost."
3. Learned counsel for the appellant submitted that the respondent has obtained Over Draft Facility in the sum of Rs,15,00,000 and since that was not paid back, hence, the suit was filed. He submitted that the finding of the trial Court is, contrary to the law.
4. After hearing the learned counsel, we have perused the definitions of sections 2(d) and 2(f)(i), as pointed out by the learned counsel, which are as follows:--
2. Definitions..........
(a) .........
(b) ...........
(c) ..................
(d) "customer" means a person who has obtained finance under a system which is not based on interest from a Banking Company or is the real beneficiary of such finance and includes as surety or any indemnifier.
(e)
(f) "loan" means a loan, advance and credit under a system based on interest and includes--
(i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a Banking Company to a borrower."
5. We have observed that the loan amount, which has been claimed, has not been granted under the Banking System but admittedly it has been obtained by an employee due to fraudulent means and because of that a criminal case has been filed in the Court established under the law i,e, Offences in Respect of Banks (Special Courts) Ordinance, 1984.
6. The trial Court has observed as follows:- "The learned Advocate for the plaintiff had argued that the defendant was the employee of the plaintiff and had availed Temporary Over Draft Facility of Rs, 1, 500,000 fraudulently, therefore, the case do fall within the jurisdiction of this Court. He quoted 1991 CLC Karachi Note 324.
' The Honourable authority cited by the learned Advocate of the plaintiff is extraneous because at the time that suit was filed in 1973, there were no Special Banking Laws or Courts. Civil Suit was decided on 6-8-1990 and the Honourable High Court had held that liability to pay unauthorized Overdraft Facility was also on the Bank employee who had allowed unauthorized Over Draft Facility to deceased defendant and that they were in collusion with each other and suit was also decreed against the employee.
' The defendant is neither a borrower nor a customer under the definition of section 2(c) and 2(d) of the Banking Companies Act, 1997. Section 2 defines what borrower, customer and Finance means and includes. These definitions say that loan or Finance obtained under a system.
According to the plaintiff, facility or loan has not been obtained by the defendant under a system but had been fraudulently withdrawn.
' An Ordinance to provide speedy trial of certain offences committed in respect of Banks was promulgated on 23rd February, 1984 and Special Courts were created to deal with the offence mentioned in the First Schedule of the Ordinance. The First Schedule includes the following offence of Pakistan Penal Code sections 201, 204, 217, 218, 380, 403, 406, 408, 409, 419, 420, 467, 468, 471, 472, 473, 475 and 477-A.
The plaintiff has levelled allegation of fraud and forgery which falls under the first schedule for which the Bank had already filed a suit against the defendant in the Special Court dealing with the offences committed with regard to the Banks."
7. In the light of above and keeping in view the relevant sections as well as finding of the trial Court, we have observed that the Over Draft Facility, as has been claimed by the appellant, is actually not an Over Draft Facility but is an amount which has been obtained through fraud by the employee and for which a criminal complaint has been filed. The said amount, which has been obtained by fraud, is not obtained under the Banking system nor it can be considered as a loan nor the person who has obtained that amount can be termed as a customer. Hence, we concur with the finding of the trial Court and dismiss the appeal.