1. ' MUSHIR ALAM, C.J.---Applicant Mehmood-uz-Zaman Khan, the borrower/customer of the respondent No,1, Standard Chartered Bank (Pakistan Limited), seeks transfer of Suit No,266 of 2009 pending in the Banking Court No,II at Karachi to this Court to be heard and tried along with Suit No,B-169 of 2009 filed by the applicant.
2. ' It appears that the respondent No,1 filed the Suit for Recovery of the outstanding amount on account of her finances extended to the applicant. Leave to defend application filed by the applicant has since been granted and matter is now coming up for evidence of the respondent No,l's witness. It is an admitted position that affidavit in evidence of the respondent No,1 has already been filed and matter is fixed on 9-8-2011 for cross-examination.
3. ' It seems that the suit filed by the applicant bearing No,169 of 2009 for damages is pending before this Court. Leave to defend application is still not heard and according to the learned counsel the case is to be heard and decided on preliminary objections as to the jurisdiction of this Court and will take considerable time before leave to defend application finally is adjudicated and decided.
4. ' Learned counsel for the applicant contends that in view of the larger bench decision of this Court .In Civil Transfer Application No,2 of 2010 wherein it has been held that once leave to defend application in a suit filed by the financial institution is granted the case could be .Considered for transfer to be heard and decided by the same Court to avoid conflicting decisions. According to him since leave to defend application has been granted to him in a suit filed by the respondent No,1 it will be in all fairness proper to transfer the suit filed by the respondent No,1 to this Court for proceeding along with Suit No, B-169 of 2009.
5. ' Mr. Khalid Mehmood Siddiqui, learned counsel for respondent, contends that it will take considerable time before leave to defend application is heard and decided in a suit filed by the applicant bearing No,169 of 2009, as matter is coming up for hearing of preliminary objections as to the maintainability of the Suit. He has further drawn my attention to various parts of the orders in Civil Transfer Application No,2 of 2010 to urge that it is not in the fitness of the matter to transfer the cases.
6. ' I have heard the arguments, perused the record.
7. ' Indeed there was great deal of debate and controversy in cases where the banking company and the customer engaged in litigation filed suit for recovery and invariably the customer ending up by filing suit for damages and or accounts, it may be observed that under the Banking Companies (Recovery of Loans and Finance) Ordinance 2001 there is a specific exclusion to the applicability of section 10 of the Code of Civil Procedure which provides for stay of the suit filed subsequent in time.
8. The larger bench of this Court has resolved a controversy as to the manner in which counter cases are to be heard and decided by transfer to one and the same Court. It was opined that in a suit filed by a financial institution in cases where recording of evidence has not yet commenced Court may allow transfer of the case from one banking court to another or to its own banking jurisdiction for trial but not where customer's leave to defend application is still pending. In the instant case, since leave to defend application has been granted in favour of the applicant and it is for this reason the applicant insists for the transfer of the case to be tried along with the suit for damages, it may be observed that the learned larger bench also made a apt observation, "the order of the transfer is not to be passed by the High Court as a matter of course on the ground that joint trial would prevent conflicting judgments." It was further observed that, "the reason which prompted transfer of the case must be based on the considerations which could be peculiar to that case only. Mere seeking transfer on the ground of preventing conflicting judgments is not enough in ordering transfer of the banking cases and the bench cautioned "while exercising this power of transfer, the very object of achieving expeditious disposal of banking cases as provided in 2001 Ordinance must not be lost sight of and the circumstances discussed in this order for allowing or refusing transfer of cases must always be kept in mind while deciding A transfer applications. It was further observed while considering such transfer application, the High Court must ensure that the very, purpose, for which expeditious mechanism for disposal of recovery suits is devised under banking laws, is not defeated.
9. ' In the light of the decision of the learned larger Bench, it is to be seen whether the purpose is to avoid conflicting decisions or to defeat the very disposal of the banking suit could be glanced from the pleadings of the parties. Availing of finance is not disputed, only outstanding amount is questioned merely on the ground of diminishing musharqa facility which is not in consonance with the spirit of the diminishing musharqa, installment 4s exorbitant. The question whether it is exorbitant or otherwise any observation of this Court may prejudice the parties is not being dilated upon. However it could be seen that leave to defend application has already been granted to the applicant in a suit filed by the respondent No,1, matter is kept for cross-examination tomorrow and the case is likely to be expedited whereas the suit filed by the applicant which is still at the leave granting stage and even it may take further time for the decision as preliminary objection is yet to be dilated upon. In the circumstances, I do not consider that this is a fit case where transfer of the case may be ordered in a mechanical fashion. Accordingly, the . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.