1. Arguments heard and record perused. In nutshell the fact of the case are that the petitioner purchased Suzuki Mehran Car registration No. LWJ 971, Engine No. 348332, Chassis No. 886816 purchased from the Bank Alfalah on installments and the same was transferred in the name of the petitioner on 30-6-06 under the insurance cover from M/s Atlas insurance, city branch 2nd Floor 3- Bank Square Share-e-Quaide-Azam Lahore under the insurance Certificate No. 107/35/00017092/2007 and the effective date from 06-05-07 which was going to be expired on 04- 05-08. A schedule for the payment of installments were issued and the petitioner issued 60 post dated Cheques as per requirement and the petitioner cleared all the monthly installments up to 01-01-08, according to version of the petitioner no installment was found short by himself. That on 13-2-07 when the vehicle got fired and matter was referred to the insurance company, the insurance company sent the said vehicle to M/S Ahmad Enterprises situated in Johar town, Lahore and the loss was estimated to Rs. 68,000/- including the repair of Air Conditioning unit, the insurance company agreed to pay Rs. 50,000/- and the balance amount of Rs. 18,000/- was to be paid by the petitioner , first try of the vehicle was got on 18-04-07 but the job done found not satisfactory and vehicle was returned, on 19-04-07 when the petitioner Muhammad Nadeem V/s Mubbashar Butt Etc. visited the workshop he was informed that recovery team of the Bank authorities had took the possession the said vehicle without any reason. On the next date the petitioner visited the branch situated at Main Boulevard Gulberg Lahore to pursue the matter, the recovery Manager Mr.Islam Gillani respondent No. 2 informed the petitioner that firstly the petitioner should pay/clear whole installments then the vehicle would be released. On 20-4-07 the petitioner applied to the other concerned staff members but all in vain, then the petitioner approached the Banking Mohtasib Karachi who settled the dispute by releasing the vehicle, copies of the application moved to the respondent and application to the Banking Mustab, on 5-10-07 when the petitioner inspected the vehicle he found following discrepancies a) front biscuit" was missing b) front number plate is also missing b) all the jobs which was previously going got repaired in the workshop has still not completed and the spare parts were also missing from the vehicle including engine work which was badly damaged due to fire.
2. It is the claim of the petitioner that during period from 9-4-07 to 5-10-07 in which the vehicle remained in the possession of the respondent the value of the same deprecated which he is entitled to receive.
3. 2 Putting in juexta position the version of the respondent is that the petitioner availed finance in the shape of Morabaha finance facility as defined in section 2 (d) (i) in the FIO 2001 and the petitioner is a customer Muhammad Nadeem V/s Mubbashar Butt Etc. as per section 2 ( c) of the ordinance, this transaction is covered by FIO hence this Court lacks jurisdiction . That the petitioner had handed over the vehicle to third party and vehicle was used as rent which was of course in violation of the finance agreement dated 6-5-06 as well as the insurance agreement it was not permissible to use the vehicle commercially, therefore, respondent Bank was duly authorized to repossess the vehicle which was the asset of the Bank, that the loss of vehicle due to fire was estimated at Rs. 68,000/- by the insurance company out of which Rs.
4. 18000/- was agreed to be paid by the petitioner. As per report of the insurance company when the car was ready to be delivered to the petitioner from the workshop a third party took the car without clearing the agreed dues. The said incident was reported to the Police authorities by the insurance company and car was left unattended whereupon insurance company handed over the possession of the car to the Bank and when the vehicle was handed over to the petitioner he signed the delivery letter dated 6-10-07 in which he stated the vehicle documents in the satisfactory condition.
5. 3 Before adjudicating the matter in hand I divert my attention to very crucial point of jurisdiction the same matter was raised before the Hon`ble Lahore High Court Lahore and his lordship Mr. Justice Muhammad Khalid Alvi vide order dated 19-6-09 through writ petition No. 9050/09 left the same matter at the disposal of the trial Court. In order to appreciate the matter of jurisdiction I also further take up the evidence deposition by the parties in which the petitioner has admitted leasing of the car, he has also Muhammad Nadeem V/s Mubbashar Butt Etc. admitted paying monthly installments to the Bank, he has also admitted that the car was insured by Altas Insurance Company, he also admitted that when the car was damaged by fire the insurance company took the car to workshop without his consent, it is also admitted that Rs.
6. 50000/- of repair was to be paid by the insurance company and Rs. 18000/- was to be paid by the petitioner, he has also admitted that he did not pay the amount of Rs. 18000/- according to him he moved a complaint to the Banking Mohtasib , he has also admitted that the maintenance charges of the car amounting to Rs. 18,000/- was debited from his account on his authority and the car was handed over to him on 6-10-07, he also admitted that the car remained in the possession of the Bank from 6-10-07 to 15-9-08 and during that period he did not make any complaint about the condition of the car, he has also admitted that while taking possession of the car from bank he signed the delivery letter dated 6-10-07.
7. 4 Now I am taking the deposition made by Islam Mehmood Gillani Incharge Recovery Bank Alfalah Ltd who has appeared as RW-1 has stated that when the vehicle was taken in the possession one month installment was short. According to him third party take out the car from the workshop 5 From what could I inferior from the lengthy discussion above, is the petitioner had to owe money on the pretext of repair which he was not paid hence the car was taken into the possession by the Bank upon that the petitioner moved to the Banking Mohtasib .Learned counsel for the Muhammad Nadeem V/s Mubbashar Butt Etc. petitioner vehemently argued that without issuance prior notice the vehicle could not have been taken into the possession.
8. 6 While speaking in the favour learned counsel as relied on 2007 CLD 1365 (Karachi) and 2007 CLD 487 Lahore. Both the citation relates to the functions of Banking Court and the whole deposition made by the petitioner himself comes within the ambit of Banking Court and it has been admitted that facility was extended to the petitioner and there is a dispute whether the petitioner made the payment of Rs. 18000/- whether the car was used for rent purpose. In my view, all this matter relates to function of Banking Court. The petitioner comes within the definition of a consumer as defined in 2 (c) of the FIO 2001 which reads as under "Consumer" means a person to whom finance has been extended by a financial institution" similarly 2 (d) (i) of FIO is fully directed of the same. Thus the complaint in hand is returned to the petitioner for presenting at proper forum.
9. After completion file be consigned to record room.