SYED HAMID ALI SHAH, J. ---This suit has been instituted by the plaintiff through its regional office at Lahore, in respect of various financial facilities accorded to defendant No. 3, amounting to. Dhs 11800,542.00. Defendants Nos. 1 & 2 furnished their personal guarantees. Defendant committed default in repayment of the outstanding amount. The defendant, however, arranged payment of Dhs 468500 by way of 3 cheques, issued by Hajvairy Textile Ltd. Through Mouiz Sultan Awan. The cheques, when presented for encashment were not paid and legal proceedings for overdue amounts were initiated before the Court of first instance at Dubai. Learned Court vide order dated 22.9.1996 decided the matter, held the defendant company and its directors liable for the payment of 11,800,542.00 Ohs with interest at 9% per annum. Hajvary Textile Ltd. And Moiz Sultan, were absolved of liability towards plaintiff bank. The plaintiff assailed the order in appeal before Appellate Court in Dubai, which was accepted vide order dated 25.5.1998, whereby Hajvairy Textile Ltd. And Mouiz Sultan Awan were also held liable for value of unpaid cheques.
2. The plaintiff, on having established its claim against the defendants before Court of First Instance and also in Dubai Court of Appeal, filed instant suit, under the provisions of Act, 1997 (now repealed) for recovery of Dhs 11,800,542.00 as on 30.9.1995 alongwith interest at the rate of 9% per annum or the amount in Pak rupees of the equivalent value. Defendants' non-appearance and failure to file application for leave to defend, resulted into an ex parte judgment. The suit was decreed vide judgment and decree dated 2.11.1999 in favour of the plaintiff bank and against all the defendants. Subsequently, defendant No. 1 entered appearance, filed application for setting aside the decree and on acceptance of his application the decree was set aside to his extent and defendant No. 1 was allowed to file application for leave to defend the suit. Consequent upon refusal of the application to defend the suit, the suit was decreed against defendant No. 1 as well, vide judgment and decree dated 28.1.2002. Defendant No. 1, assailed the judgment and decree in appeal (R.F.A. No. 170 of 2003) which was partly allowed and the case was remanded vide judgment dated 30.4.2006, to this Court, for decision afresh on the issue of jurisdiction in view of objections raised by the appellant/defendant No. Y. In the post remand proceedings, defendant No. 1, stayed away from proceedings and despite substituted service through citation in Daily "Dawn" in its print dated 11.4.2008, none appeared on behalf of defendant No. 1. Defendant No. 1 was proceeded against ex parte through order dated 23.4.2008.
3. Learned counsel for the plaintiff has submitted that a "banking company" as defined in Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 means a company whether incorporated within or beyond Pakistan, which transacts the banking business. He added that a "Financial Institution" within the meaning of Section 2(a) of Ordinance, 2001, is any company incorporated within or outside Pakistan, which transacts the banking business in Pakistan through its branches within and outside Pakistan. Having gone through the definitions from Statute Books, learned counsel contended that Dubai Branch of United Bank Limited, is a banking company and default in fulfilment of any obligation, can be adjudicated by the Banking Court, established under the relevant law. Learned counsel then contended that instant suit was filed against the defendants on the basis of the decree of the Court of First Instance Dubai, which was affirmed and upheld by Dubai Court of Appeal. Defendant's failure to satisfy the foreign judgment and decree of the Court of competent jurisdiction, gives cause to the plaintiff to institute instant suit against the defendant. The suit is based upon the foreign judgment and relevant facts are mentioned in paras 20 & 21 of the plaint. The plaintiff in para 22 of the plaint has asserted that cause of action has accrued on 22.9.200.6, when the defendants failed to pay the decretal amount. Learned counsel went on to argue that this Court has the jurisdiction to pass the decree on the basis of foreign judgment. Learned counsel relied upon the cases of "Messrs Kadir Motors (Retd.), Rawalpindi v.
Messrs National Motors Ltd., Karachi and 3 others" (1992 SCM R 1174) and "T. Zubair Limited and 2 others v. Judge, Banking Court No. Hi, Lahore and another" (2000 CLC 1405). Learned counsel has emphasized that a decree on the basis of foreign decree/judgment can be passed. The only restraint in this regard is the exceptions mentioned in Section 13 of C.P.C.
4. Heard learned counsel for the plaintiff and record perused.
5. Defendant No. 1 (Mr. Naeem Ullah Malik) assailed judgment and decree dated 13.1.2002 in appeal.
The appeal was accepted and the decree of this Court was partially set aside. Defendant No. 1 in the post remand proceedings absented himself. His counsel Mr. Abid Aziz Sheikh, Advocate with permission of this Court, vide order dated 26.10.2007, withdrew his power-of-attorney for want of instructions. Notices were issued on the last known address of defendant No. 1 and then the service upon the said defendant was effected through citation in daily "Dawn" in its print dated 11.4.2008.
The defendant was proceeded against ex parte on 23.4.2008.
6. The Appellate Court in its judgment dated 3.4.2006 passed in R.F.A. No. 170 of 2003, observed that a judgment based on foreign cause of action, has to be viewed from three necessary jurisdictional aspects i.e. Jurisdiction over subject-matter, jurisdiction over parties and territorial jurisdiction. The Hon'ble Appellate Court while observing that impugned judgment lacked the above treatment on the issue of jurisdiction, remanded the case to this Court to consider and decide afresh different aspects of jurisdictional objection. Learned Appellate Court, however, maintained the judgment and decree of this Court (Banking Court) on merits.
7. I will first take up the question of jurisdiction of this Court, over subject-matter and the jurisdiction of this Court over the parties. The facilities which the defendants availed is based on agreement dated 7.5.1994, which is signed arid executed by United Bank Ltd., Dubai on one hand and Mr. Shahid Afzal Daha and Naeemullah Malik, on the other hand. Notary Public has also signed and attested this document. The defendants are shown as guarantors in this agreement. The defendants availed Clean Over Draft Facility, Loan Against Trust Receipt, Local Bill Discounted Letter of Credit, Payment Against Document and Letter of Guarantee. These transactions pertain to "Finance" as defined in Section 2(e) and create Banker Customer relationship. The transaction inter se the parties and also the subject-matter of the agreement dated 7.5:1994, falls within the ambit of definition of "Finance" as defined in Section 2(e) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
The plaintiff is a banking company and transacts the banking business. Financial Institution which transacts banking business and is incorporated within or outside Pakistan is the "Banking Company' within the meanings of Section 2(a) of Ordinance, 2001. The plaintiff is banker and the defendants are customers. The default of the defendants in payment of the outstanding amount non-fulfilment of obligation. The subject-matter, therefore, exclusively falls within the jurisdiction of this Court. No other Court except this Court, constituted under Section 7 of the Ordinance, 2001, has jurisdiction over the parties and the subject- matter.
8. Suit on the basis of foreign judgment, treating it as cause of action and conclusiveness of foreign judgment, was considered by me, in my judgment passed in the case titled "Habib Bank Ltd. v. M/s. Virk House Trading Company Ltd (2009 CLD 451) wherein it was held;- "The Bench of three Judges headed by Dr. Hassan Basurri (President) of the Court of the First Instance in Commercial Plenary Jurisdiction, examined the documents, went through pleadings and other relevant record, held the defendants liable for the payment of the suit amount. Learned Court considered Account Opening Application, Trust Receipt of debt dated 31.12.1997 and copy of the Statement of Account dated 10.5.1998 and then determined the liability of the defendants. The judgment by all intents and purposes is a judgment on merit. The liability of the defendants was directly adjudicated upon. Learned Dubai Appellate Court held defendants Nos. 2 & 3 jointly liable for the payment of the suit amount. The certified copies of the foreign judgments alongwith their translation, are available on record. The judgments are presumed to be pronounced by the Court of competent jurisdiction within the contemplation of Section 14 of C.P.C. The defendants have failed to rebut the presumption. There is nothing on record to show that foreign judgments, upon which the plaintiff has filed the suit fall within the exception enumerated in Section 13, C.P.C. The judgment is conclusive and binding on the defendants and this Court while entertaining the claim on the basis of foreign judgment cannot sit in appeal, over findings and conclusions of the fact, recorded by the Foreign Court."
9. Foreign judgment of the Dubai Court of First Instance, has been perused. Its perusal reflects that the defendants were summoned and re-summoned but they did not attend the Court. According to Article 53 of the Civil Procedure Law (Law of Dubai) such judgment is considered as judgment passed in presence of the parties. Defendant No. 4 (defendant No. 1 herein) appeared before the foreign Court. So was the case of Hajvairy Textile Mills Ltd. They contested the suit. Learned Court considered the memorandum, containing their pleading and the request for dismissal of the suit to their extent. Learned Court after considering whole evidence and after its due appraisal, passed the decree. The Court absolved Hajvairy Textile Mills Ltd. And Mr. Monir Sultan, of the liability again which the bank went into appeal. Dubai Court of Appeal accepted the appeal vide judgment dated 25.5.1998 and bound the Hajvairy Textile Mills Ltd. And Monir Sultan for value of unpaid cheques and confirmed rest of the judgment of Dubai Court of First Instance. These judgments are by Court of competent jurisdiction, given on merits of the case -and founded on correct view of law applicable.
The judgments do not breach any law in force in Pakistan and do not offend the principle of natural justice. The judgments are conclusive and binding.
10. Defendant No. 1, on his return from abroad is residing is evident from the perusal of the address, which the said defendant has himself provided in the title of his appeal.
The other defendants are also residing, working for gain and carrying the business within the jurisdiction of this Court. The plaintiff has its regional office at. Davis Road, Lahore and relevant record of the instant controversy has been summoned by the plaintiff from abroad and the same is now in the custody of officials of the plaintiff in its regional office.
The Court, therefore, has the jurisdiction over the parties as well. I have considered various aspects of the instant I controversy, gone through the record and have no hesitation to hold that this Court has the jurisdiction over subject- matter, over parties and the territorial jurisdiction. The suit was competently filed in this Court and it does not suffer from any jurisdictional flaw.
11. The suit was decreed vide judgment and decree dated 31.1.2002 of this Court. The finding of this Court, regarding the merit of the case were affirmed and upheld in appeal. The case was remanded only on the question of jurisdiction which has been decided in favour of the plaintiff. The decree for a sum of U.A.E. DHs 11,800,542.00 or the Pak Rupees equivalent thereof at the v time of payment alongwith interest and other charges from 3.9.1995 till the date of realization of the whole amount is, therefore, passed against defendant No. 1, who will be jointly and severally liable for satisfaction of the decree, with other judgment-debtors. The costs of suit and costs of funds are also allowed to the plaintiff/decree-holder.
12. Failure of the defendants to satisfy the decree within a period of one month from today will result into execution of decree forthwith, without the need of a formal application for execution of the decreed.