' In the present revision the order of the learned Civil Judge dated 3-6-1979 has been challenged.
2. Briefly stated the facts of the case are that respondent No. 1 filed a suit for the recovery of Rs, 3,29,688.74 on 28-6-1979 being Civil Suit No, 253/A/1 and the same was pending in the Court of Civil Judge, Lahore. At one stage the suit was dismissed under Order IX, rule 8, C. P. C. However, the learned Civil Judge ordered the restoration of the suit vide his order dated 3-6-1979. After the restoration of the said suit the learned trial Court Vide its order dated 20-6-1979 transferred the suit under the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) (hereinafter called the Ordinance) to the file of the learned Special Court constituted under the said Ordinance. In the present revision the petitioner is aggrieved against the said order of transfer and desires that the case be heard and disposed of by the learned Civil Judge. This revision requires the interpretation of the various provisions of the said Ordinance.
3. The learned counsel for the petitioner contended that on the reading of the plaint it is abundantly clear that the loan was sufficiently secured and as such the learned Civil Judge did not have the power to transfer the suit to the file of the Special Judge under the said Ordinance.
4. The learned counsel for the respondent on the other hand contends that as the existence of the loan had been denied, therefore, under the provisions of the said Ordinance the suit automatically 'stood transferred to the file of the learned Special Judge constituted under the said Ordinance and even no order was required to be passed in this behalf. The learned counsel for the respondent has in support of his submissions relied upon the entire scheme of the Ordinance.
6. In order to appreciate the contentions of the learned counsel for the parties it would be pertinent to quote the relevant provisions of the Ordinance. The term 'loan' has been defined in clause (d) of section 1 of the Ordinance, Sub-clauses (i), (iii) and (iv) are not relevant. For or purposes only sub- clause (v) in relevant which is reproduced below :- "any loan due from any borrower to a banking company which is the subject-matter of any pending suit, appeal or revision before any Court ;"
' Section 4 was also relied upon by the learned counsel for the petitioner. It provides for securing and repayment of loan due on the commencing day. The contention of the learned counsel for the petitioner by referring to this section is that the Special Judge could have only power of attachment etc. When the loan was either not sufficiently secured or is discovered to be insufficiently secured. Section 4 of the Ordinance for the sake of convenience is reproduced below :- "4. Securing and repayment of loan due on the commencing day.-(1) This section applies only to loans outstanding on the commencing day.
(2) A loan or part thereof outstanding on the commencing day shall, unless secured or repaid earlier, be secured and repaid as provided in this section notwithstanding the fact that the period of limitation within which a suit for the recovery of the loan or part thereof could have been or may be filed expire or expires on or after the first day of January 1974.
(3) Where, in the opinion of a banking company a loan was, or has become or is discovered to be, unsecured or insufficiently secured, the borrower shall provide sufficient security therefor within one hundred and eighty days from the date of the notice served by the banking company on the borrower in any of the under mentioned modes, namely, by being- (a)given or tendered to him, or (b)sent by registered post to his last known address on the record of the' banking company, or
(e) affixed on a conspicuous part of his last address known to the banking company, or
(d) published in a newspaper.
(4) Where a loan is not, or has not become, sufficiently secured under subsection (3), the banking- company may apply to the Special Court for attachment of so much of the property of the borrower as is equal in value, with reasonable margin, according to banking practice to the outstanding amount of the loan.
(5) Where the loan is, or has become, sufficiently secured under sub section (3), the outstanding amount shall, unless a different schedule of repayment is drawn by the Bank, be repaid in accordance with the Schedule of repayment agreed to at the time of sanction of the loan.
(6) The decision of the Bank in fixing the Schedule of repayment under subsection (5) shall not be questioned in any Court."
Section 5 of the Ordinance provides for the Special Courts and reads as follows :-
5. Establishment of Special Courts.-(1) The Federal Government may by notification in the official Gazette, establish as many Special Courts as it considers necessary, and where it establishes more than one Special Court, shall specify in the notification the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance.
(2) A Special Court shall consist of a person who is a District Judge."
' Section 6 of the Ordinance has been relied by the learned counsel for the respondent in order to show that in a suit where the loan is disputed the proceedings shall stand automatically transferred to the Special Court. Only subsection (4) of section'6 is relevant and is reproduced below :-
(3) No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court ; and all proceedings, including proceeding following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.
' The learned counsel has also referred, for the interpretation by this Court, section 13 which deals with the pending cases and appeals and needs reproduction :- "13. Pending cases and appeals.-Notwithstanding anything contained in section 19-
(a) any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard, and shall be decided, by the High Court ;
(b) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an order which disposes of the entire case shall continue to be heard, and shall be decided, by the Supreme Court or, as the case may be, the High Court ;
(c) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an interlocutory order which does not dispose of the entire case shall stand transferred to the Special Court ; and
(d) any appeal on any of the grounds specified in subsection (2) of section 12 which is from an order which disposes of this entire case and which may be pending before a District Judge at the commencement of this Ordinance shall stand transferred to the High Court."
' The Ordinance was gazetted on 25-3-1979 and came into force on 1-5-1978 and Special Judges have been appointed by virtue of a notification issued under the Ordinance. According to the scheme of the Ordinance a pending suit stands on a different footing and has been dealt with under section 6 and has nothing to do with the proceedings which a banking Company may initiate on account of insufficiency of the security as provided under section 4 of the Ordinance.
The learned counsel has drawn my attention to the written statement which has also been appended by the learned counsel for the petitioner and it appears that the factum of existence of the loan had been denied. Reference may be made to the reply to paragraph 1 of the written statement and for the sake of convenience is reproduced below :- "1. Para. No. 1 of the plaint is incorrect and is denied. The defendant was never granted any loan nor did he ever avail of the alleged loan of Rs, 2,40,000 or any other amount. The defendant did not execute documents referred to in the para under reply and the validity of the documents is denied.
It may be submitted that the defendant and his family members were having different account with the plaintiff-bank and in that connection the defendant was made to sign certain blank forms and papers by the plaintiff. The plaintiff may have filled up those forms etc. According to its needs.
The documents referred to in the corresponding para of the plaint are illegal and inadmissible in evidence. No consideration was ever paid to the defendant by the plaintiff for these documents and the documents are void and unenforceable."
6. In view of the fact that the existence of the loan bad been denied by the petitioner. Subsection
(4) of section 6 will immediately come into play. The aforesaid subsection (4) of section 6 clearly provides that no Court other than a Special Court shall have the jurisdiction to decide as to existence or otherwise of a loan and if such a question arises pending in any Court shall stand transferred to the Special Court. I agree with the learned counsel for the respondent that even no formal order is necessary. The question of pending suits and appeals having been specifically dealt with in section 13, quoted above.
7. As a result of the above discussion the cases falling under Ordinanc1B may be summarized below:
(i) Suits for the recovery of loan less than Rs, one lac not hit by the Ordinance whether pending or otherwise ;
(ii) If in respect of a loan of more than Rs, one lac, it is not sufficiently secured or becomes insufficiently secured or is discovered as such the banking Company has a right to apply under section 3 before the Special Judge for attachment etc. ;
(iii) In the pending suits of more than Rs, one lac if the question is one of determination of the existence of loan the case shall stand transferred to the Special Court ;
(iv) In respect of the matters pending before the High Court and Supreme] Court the same are to be dealt with under section 13 of the Ordinance.
8. In view of the above discussion the suit filed by the respondent shall be deemed to be transferred to the file of the Special Judge and even no order was necessary on account of petitioner's denying the existence of the loan. This revision has no force and is hereby dismissed with costs.