1. This date was fixed for the arguments on the preliminary and legal objections contained in the joint written statement of defendants No.1 to 4 which have been heard today and copy of a decision of the learned Banking Court presented by learned counsel for the defendants No.1 to 4 has been included in the file during the arguments; as such I proceed to discuss and dispose off said objections by discussion in the following paragraphs.
2. The version of the claimant briefly stated is to the effect that he has satisfied the flexi loan by payment of all the required installments to defendant No.4 but excess amount has been charged by the said defendant and still claiming for further payment towards the satisfaction of the loan while defendant No.5 is not providing the required data. The claimant has requested that the court may pass an order for the following reliefs:- i. The returning of the additional amount paid to the defendant No.1 to 4 which amounts to Rs.53,873.40; ii. Returning of the afore mentioned 60 cheques: iii. Awarding 5 lac rupees as damages. iv. Awarding the distinct damages against the defendant No.5 for not affording or showing the record to the claimant; v. Submitting the record of the pay orders with the written statement of the defendant No.5; vi. Awarding compensation which is left to the discretion of the court; vii. Distinct damages for not responding in writing to the legal notices duly dispatched to the defendants; viii. For the reimbursement of the fees of the counsels which amounts to 1 lac rupees; ix. For the reimbursement of other expenses incurred in the legal proceedings; x. Any other remedy which District Consumer Court deems fit.
3. The version of defendants No.1 to 4 in the joint written statement is to the effect that the complaint is not maintainable in this court due to the preliminary and legal objections; that the amount still due towards the satisfaction of the loan is Rs.8,843/64; that the claimant should seek his remedy from proper forum of Banking Court established under S.5 (4) of Financial Institutions (Recovery of Finances) Ordinance, 2001; that he may also complain to Wafaqi Banking Mohtasib to seek his remedy; that the complaint may be dismissed with damages and costs.
4. The version of defendant No.5 in the separate written statement is to the effect that paras No.1 to 8 and 11 & 12 do not pertain to it while paras No.9 &10 have been denied with explanation to the effect that the claimant had never demanded any type of information or record; that defendant No.5 may be excluded from the case.
5. I am of the view that no other objection or plea of the parties can be considered in the present case because the objection against the jurisdiction of this court is to be treated as the main objection therefore I proceed to determine the said objection in the next paragraphs.
6. As far as the jurisdiction of learned Banking Court is concerned, it is observed that I am conscious of the ruling of Honourable High Court cited as 1988 CLC 1718 in Para 22 to the effect that; "It is settled law that once the Legislature has made any special law for a particular purpose prescribing a forum or a Tribunal for decision of any dispute the Courts should not encourage deviation from such course."
7. A perusal of the law shows that it is provided in S. 3 of PCP Act 2005 that "the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force". The intent of the legislature is therefore deemed to be to the effect that the provisions of Consumer Law should not be derogated? by any other law being special law.
8. It is therefore observed that the jurisdiction of the Banking Court comes into operation when the matter relates to the loan or mortgage while the jurisdiction of the consumer court is not barred when the matter relates to the services alleged to be faulty and such dispute can be validly determined by the Consumer court in which the services are found to be faulty. But since the present case relates to the terms and conditions of the loan as such I find that the jurisdiction of this court is barred.
9. A thorough study of the Banking laws shows that the history of legislation of the Banking Laws consist of the previously repealed laws namely Banking Companies (Recovery of Loans)
Ordinance, 1979; the Banking Tribunals Ordinance, 1984; the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 succeeded by the Financial Institutions (Recovery of Finances) Ordinance, 2001 as the latest law in the field. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. 1997 is repealed by S.29 but S.15 of the said Act is still applicable on the old cases according to said section.
10. A perusal of the current law shows that the terms defined in S.2 consist of the Financial Institutions, Banking Court, Customer, Finance, Obligation, Rules.
11. It is provided in S.3 that the costumer shall be liable to fulfill his obligation "apart from such other civil and criminal liabilities that he may incur under the contract or rules or any other law for the time being in force".
12. It is provided in S.4 that "the provisions of this ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the being in force".
13. The Banking Court is established u/s.5. The powers of the Banking Court are provided in S.7. The old cases pending under Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act 1997 have been transferred to the Banking Courts established under the new law also under S.7.
The old cases pending under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. 1997 have been transferred to the Banking Courts established under the new law also under S.7.
14. The procedure for the filing of the suits for recovery of written off finances etc is provided in S.8.
The procedure of the Banking Courts is provided in S.9. The disposal of the suit is provided in S.13.
The decree in suit relating to mortgages is provided in S.14. The sale of mortgaged property is provided in S.15.
15. Attachment before judgment, injunction and appointment of receivers is provided in S.16.
Attestation of Banking Documents is provided in S.18. Execution of decree and sale with or without intervention of Banking Court is provided in S.19. The provisions relating to certain offences are provided in S.20. The restriction on transfer of assets and properties is provided in S.23. Saving clause about the Limitation Act is provided in S.24.
16. No court is allowed to call in question any decision of the Banking Court and finality of the order of the Banking Court is attached in S.27. Indemnity to the employees of the financial institutions is provided in S28
17. S.15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act. 1997 is still applicable on the old cases according to S.29 of the said law even after the repeal of said law.
18. In accordance with above findings, I find that the present complaint is not maintainable in this court as such liable to be returned for presentation before learned Banking Court in accordance with law.
19. For what has been discussed in preceding paragraphs, the present complaint is hereby disposed off as returned for invoking the jurisdiction of learned Banking Court.
20. The parties are left to bear their own costs.
21. A copy of this order would be available for publishing on the internet to the website of PCPC for public disclosure and easy access of information to the consumers relating to the products and services in accordance with Rule 25 of PCPR 2009.
22. The file of this complaint is to be consigned to the record room duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.