1. ' JAMAL KHAN MANDOKHAIL, J.---Both the appeals are identical in nature, therefore; we intend to dispose of them through a common judgment.
2. Brief facts of the case are that the appellants have filed their separate suits for recovery of amount and damages. It is alleged in the suit that they are maintaining an account in the Muslim Commercial Bank (the respondent in both the appeals), which was not properly maintained and has failed to perform its liabilities. It is mainly contended that the appellants deposited various amount in cash as well as through. Cheques and other negotiable instruments, but the Bank has failed to credit these amounts in their accounts. It is claimed that the amount is outstanding against the bank, and the respondent has illegally detained it and not ready to pay it to the appellants.
2. ' Initially, both the appellants filed their separate civil suits against the respondent in the court of Senior Civil Judge-I, Quetta. The respondent by filing its written statement, to both the suits, raised an objection that the civil court has no jurisdiction to entertain the suit as contemplated in the Financial Institutions (Recovery of Finances) Ordinance, 2001.
3. ' The appellants having regarded the objection, withdrawn both the suits, consequently they approached the Banking Court, Balochistan Quetta by way of filing Suit No,128 of 2003 and Suit No,141 of 2003, respectively. The respondent again raised an objection on both the suits, alleging therein that the Banking Court has no jurisdiction in the matter, as the appellants/plaintiffs do not come within the definition of "customer". Similarly, their claim also does not come within the definition of "finance", as defined in section 2 of the Ordinance.
4. ' The Banking Court, after hearing the parties, accepted the objection of the respondent and held that it has no jurisdiction to entertain the claim of the appellants, as such, returned both the plaints to the appellants, through separate orders dated 1st September, 2004.
5. ' Feeling aggrieved from the Impugned orders, the appellants preferred High Court appeal No 09 of 2004 and High Court Appeal No,10 of 2004, respectively.
6. ' The learned counsel for the appellants (S) argued that the appellants is/are account- holders/customers of the respondent-Bank and they had credited an amount with it, therefore, the appellants come within the definition of "customer" and amount deposited, comes within the definition of "finance". In such circumstances the Banking Court had the jurisdiction to entertain the matter. He further argued that the earlier suits was withdrawn on the Objection of the respondents, and have filed the present suit before the Banking Court. He stated that now the respondents is estopped under the law to raise same objection. According to him the Banking Court has wrongly returned the plaint to the appellants, therefore the orders impugned in both the appeals are liable to be set aside.
7. ' On the other hand, the learned counsel for the respondent has vehemently opposed the contention and submitted that the Banking Court has rightly returned the plaint to the appellants.
8. He stated that the appellants do not come within the definition of "customer" and the amount of recovery and damages cannot be termed as "finance".
9. ' We have heard the learned counsel for the parties and have perused the record. The term customer is defined in section 2(c) of the Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), which is reproduced hereinbelow:--
(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; ' Whereas, the word finance has been defined in section 2(d) of the Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), which is reproduced hereinbelow:--
(d) "finance" Includes-
(1) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or markdown in price, hire-purchase, equity support, lease, rent-sharing, licensing charge of 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 buyback arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate;
(ii) facility of 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.
10. ' In the above definitions, the word "customer" is limited to a person to whom finance has been extended and includes a person on whose behalf a guarantee or letter of assurance has been issued by a financial institution. It means, the persons, other than defined in section 2(c) of the Ordinance, do not come within the definition of a "customer". Merely being account-holders of the respondents, the appellants cannot be considered as customeRs, And the amount allegedly deposited by the appellants also does not come within the purview of "finance". Similarly, any facility defined in the definition provided by a financial institution covers within the ambit of "finance". Hence, opening of an account and deposition of amount by an account holder would not be considered as finance.
11. ' After the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001, Special Banking Court has been constituted. Section 9 of the Ordinance which provides the procedure to approach Banking Court, is reproduced as under:--
9. Procedure of Banking Court. (1) Where a customer or a financial institution commits a default in fulfilment of an 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.
12. ' Reading of above section clearly shows that all the claims relating to advancement of "loan" or defaults in fulfilment of an obligation pertaining to any "finance", is triable by a Banking Court. The law has not permitted any other claim to be tried by a Banking Court.
13. ' In the present, case, the appellants have claimed that they had deposited their amount with the respondent-Bank, but has not been credited in their account. Their claim of recovery of amount and damage do not come within the jurisdiction of the Banking Court in the light of above discussion. Having regard to the facts and considering the law, we find no illegality or irregularity in the impugned ordeRs, ' It is an admitted fact that the earlier suits filed by the appellants in the court of Senior Civil Judge- I, Quetta, was withdrawn on the objection of the respondents. Since the appellants were not properly guided by their counsel and the Senior Civil Judge has also not taken into consideration the relevant law before agreeing for the withdrawal of the suit. Having regard to such facts, the counsel for the appellants as well as the Senior Civil Judge have not acted judiciously, which has resulted in the return of the earlier suits.
14. ' Due to a baseless objection of the respondent, and on ill advice of the counsel for appellants, and also by not applying judicial mind by the Senior Civil Judge, their earlier suits were withdrawn. In such view of the fact, the appellants should not be penalized for the bona fide mistake of their counsel and a Senior Civil Judge. Since a valuable right of the appellants is involved in the matter, therefore the plaint is/are hereby return to the appellants for presenting it before the ordinary civil courts, having pecuniary jurisdiction, within 60 days, after receiving a copy of the order, if desire so.
15. In case the appellants approach to civil court within such period, the withdrawal of the earlier suit shall not be a hurdle in their way.
16. ' Thus in view of what has been stated and discussed hereinabove, the appeals are disposed of accordingly.