' MUNIB AKHTAR, J.---The application that falls for determination has been filed by the plaintiff. The plaintiff is a banking company and seeks interim injunctive relief in respect of a complaint filed by the defendant No, 1 with the defendant No, 5, who is the Banking Mohtasib exercising jurisdiction under and in terms of Part IVA of the Banking Companies Ordinance, 1962 ("1962 Ordinance"). The suit and the present application arise in the following circumstances.
2. The defendant No, 1 is a. Company ("the company") which maintains a current account with the plaintiff (herein after referred to as ("the bank") at its Bahadarabad, Karachi branch. At the relevant time, the account was in credit balance. According to the mandate given by the company, cheques could be drawn on the account singly by any one of the two directors of the company.
The directors are the defendants Nos.2 and 3 (the defendant No,2 also being the chief executive).
The defendant No,4 was, at the material time, employed as a finance manager or accountant with the company, who dealt with its banking matters at the Bahadarabad branch. The company's grievance is that on 4-11-2011, four cheques drawn on the. Company's account were presented at the counters of the branch by the defendant No, 4, totaling Rs,79,50,000. The cheques were purportedly signed by the defendant. No,3, but those signatures were forgeries. The cheques were for cash. The company contends that with the connivance of certain of the plaintiffs employees at the branch, the cheques were encased and thus the money was fraudulently removed from the company's account. It appears that the defendant No, 4 has since absconded. The company discovered the fraud some days later (on 10-11-2011), when another employee was sent to the branch to get a statement of account. Although the bank was duly informed of what had happened (at the latest by 14-11-2011), it is alleged that it did nothing. An F.I.R. Was registered with the police with regard to the matter by the defendant No,2, which was transferred to the Federal Investigation Agency (FIA). The matter coming within the jurisdiction of the Special Court set up under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, it appears that after due investigation, the FIA submitted an interim challan (i,e,, charge sheet) in that court on or about 22- 12-2011. I am informed that this is being treated as the final challan in the matter. As of the date of hearing, the charge had not yet been framed.
3. In addition to the foregoing (and this is, what has led to the filing of the present suit), the company also filed a complaint with the Banking Mohtasib ("the Mohtasib"). It appears that the company first approached the Mohtasib by letter dated 14-11-2011. The latter wrote back on 16-11- 2011 informing the company that the law (i,e,, Part IVA of the 1962 Ordinance) required that the complainant first approach the bank concerned giving particulars of the matter being complained about, and it was only if the bank failed to give satisfaction within 45 days that the Mohtasib could be approached. The Mohtasib noted that the company had approached the bank on 14-11-2011 and on this basis asked the company to "revert to our office" by 29-12-2011 if the matter was not resolved by then to its satisfaction. The matter not having been so resolved, the Mohtasib initiated proceedings after 29-12-2011, which led ultimately to the filing of the present suit by the bank on 6- 3-2012.
4. In the suit the bank has taken the plea (in a manner shortly to be explained) that the Mohtasib does not have the jurisdiction to entertain the complaint or in any case is acting in excess of jurisdiction in proceeding with the same. First however, the bank's position on the facts may be briefly stated. The plaint avers that on 3-11-2011, the defendant No, 4 came to the Bahadarabad branch and informed the bank thatthe company would be making a substantial cash withdrawal the next day and therefore notes of high denomination should be readied and made available. The next day, 4-11-2011; the defendant No, 4 came and presented the four cheques referred to above.
The matter was dealt with in the normal course and in accordance with law and the banking procedures and practices. The cheques were found to be in order and the money was withdrawn and handed over to the defendant NO.
4. It is specifically averred that a money changer was also called to the branch by the defendant No, 4, who informed the branch manager that the funds were being remitted to Dubai. The bank strongly denies any wrongdoing or illegality, whether by itself or any of its employees. Its case is that the matter was a routine banking transaction, which was dealt with in the ordinary course of business and in accordance with law. It is stated in the plaint that on 10-11-2011, some other person came to the branch from the company and asked for the statement of account. Since the bank had no instructions with regard to the new representative, it asked him to bring the necessary authority letter, and was only when such a letter was produced that the statement was handed over. Thereafter, the company and the defendants Nos. 2 and 3 lodged the F.I.R. Aforementioned against, inter cilia, the bank's officials. The bank repudiates the allegations in the F.I.R. And I am informed that the criminal case is being strongly 'contested.
5. Insofar as the complaint before the Mohtasib is concerned, the bank's case is that it is also completely frivolous and without any lawful basis or justification whatsoever. The process of the law is being abused to cause loss and damage to the bank. The entire case against the bank is motivated, contrived and false. If at all anyone is liable for any wrongdoing, it is the company's own (apparently former) employee, the defendant No, 4 and it is he alone who has any liability.
6. Learned counsel for the bank stated the bank's position substantially as above, and submitted that in entertaining the complaint or at the very least in proceeding with it, the Mohtasib was acting without or beyond jurisdiction. Reliance was placed specifically on section 82D(4) of the 1962 Ordinance (reproduced below) to contend that since the matter was pending before the Special Court on the basis of proceedings initiated by the company itself, the Mohtasib had no jurisdiction either to entertain or to proceed with the complaint. This submission constituted the heart of learned counsel's submissions and formed the basis on which it was contended that the bank was entitled to interim injunctive relief in terms of the present application. Learned counsel submitted that all the ingredients. For interim relief were present and prayed accordingly.
7.
7.Learned counsel for the company and the defendants Nos. 2 and 3 opposed the grant of any interim relief. It was submitted that the company had been fraudulently deprived of a large sum of money for which the bank was fully liable. The complaint before the Mohtasib was maintainable and he had the jurisdiction to proceed with it. It was submitted that the matter pending before the Special Court was of a criminal nature and hence 'different from the complaint, which was a matter of a civil nature. The relief that the Mohtasib could grant in terms of section 82E(1) by way of recommendations for implementation was entirely different and distinct from the outcome of the criminal trial that would proceed before the Special Court. In any case, if the Mohtasib made an order by which the bank was aggrieved, it had a right of appeal under section 82E(4). No case had been made out for any interim relief and it was the present suit that was an abuse of the process whereby the bank sought to nullify the efficacious and speedy remedy provided under the 1962 Ordinance to deal with customers' complaints against banks.
8. Learned counsel for the Mohtasib also opposed the grant of any. Relief. It was submitted that section 82D(4) was not at all applicable in respect of the present facts and circumstances. It only applied in respect of proceedings of a civil nature, and where such proceedings were already pending then (and only then) a complaint would not be entertained by the Mohtashib. Indeed, learned counsel submitted that once a complaint had been entertained by the Mohtasib, then even civil proceedings subsequently filed would not have the effect of ousting the Mohtasib's jurisdiction or 'requiring him to stay his hand. It was specifically contended that in such a situation, it was the subsequently filed civil proceedings (whether by way of a civil suit or otherwise) that would have to be stayed. Learned counsel also submitted that Part IVA of the 1962 Ordinance, whereby the office of the Mohtasib had been created and his jurisdiction and powers established and defined, constituted a special remedy or procedure in respect of a special subject and this, also had the effect of ousting the jurisdiction of the civil courts. Finally, it was submitted that in any case,. The matter on which the bank sought to rely, namely the criminal case before the Special Court had no relevance for, and did not, at all affect the proceedings before, the Mohtasib. Learned counsel submitted that it was well recognized in law that the same facts could give rise to both criminal and civil liability (and hence corresponding proceedings), and a case for relief under each had to be established on its own merits. Indeed, if at all, the law was that it was the criminal proceedings that ought to be stayed while the civil' proceedings were pending. No case was made out for any relief and the application ought to be dismissed.
9. At the conclusion of the hearing, I allowed learned counsel to submit written synopses and all three did so, relying also on certain case-law, which will be considered below if and to the extent as necessary.
10. I have heard learned counsel as above, examined the record with their assistance and considered the case-law and material relied upon. It will be seen from the submissions made by learned counsel that the matter was essentially argued on the legal plane, and comes down simply to a determination of whether the Mohtasib has acted (or is acting) without or beyond jurisdiction. It will therefore be convenient to begin by reproducing the provisions of Part IVA, which as presently relevant, are in the following terms:-- "82A. Appointment of Mohtasib.---...
(3) The jurisdiction of the Banking Mohtasib in relation to banking transactions shall be to--
(a) enquire into complaints of banking malpractices; ...
82B. Terms and conditions of the Banking Mohtasib:---...
(4) The Banking Mohtasib shall have the power and responsibility--
(a) to entertain complaints from customers, borrowers, banks or from any concerned body or organization;
(b) to facilitate the amicable resolution of complaints after giving hearings to the complainant and the concerned bank,
(e) in the event that complaints cannot be resolved by consent, to give finding which shall be acted upon in the manner set out herein.
(5) The Banking Mohtasib shall exercise his powers and authority in the following manner:--
(a) In relation to all banks operating in Pakistan.---The Banking Mohtasib shall be authorised to entertain complaints of the nature set out herein below:---...
(iii) fraudulent or unauthorised withdrawals or debit entries in accounts; ....
82C Reference to Banking Mohtasib by Court.---If at any time during the pendency of a case, a court trying a case relating to recovery of loan by a banking company is of the opinion that the management of the banking company has prima facie acted in a mala fide manner, or in violation of banking rules and regulations, it may reference to the Banking Mohtasib for inquiring into the matter and passing such order in accordance with the provisions hereof as may deem fit: ' Provided that the making of a reference shall not prevent the court from deciding the claim before it on merits.
82D Procedure for making complaints.---(1) A complaint shall be made on solemn affirmation or oath in writing addressed to the Banking Mohta'sib. The complaint shall set out the full particulars of the transaction complained of and the name and address of the complainant.
(2) Prior to making a complaint the complainant shall intimate in writing to the concerned bank his intention of filing a complaint and if the bank either fails to respond, or makes a reply which is unsatisfactory to the complaint, within a period of forty-five days, the complainant may file a complaint at any time thereafter within a further period of forty-five days: ' Provided that the Banking Mohtasib may, if satisfied that there were grounds for the delay in filing the complaint, condone the delay and entertain the complaints.
(3) The Banking Mohtasib may adopt any procedure as he considers appropriate for investigating a complaint: ' Provided that he shall not pass any order against a bank without first giving it a notice and an opportunity of a hearing..
(4) Subject to section 82C, the Banking Mohtasib shall not have any power to issue an order in the nature of a stay order or to entertain any complaints if the matter is pending before a court or other legal forum.
(5) The Banking Mohtasib may reject a complaint summarily or he may accept the same or pass any other order he deems fit: ' Provided that in each case he shall pass a reasoned order for his decision.
82E. Recommendations for implementation.---(1) In the event the Banking Mohtasib comes to the conclusion that the complaint is justified, in part or in whole, he shall try and facilitate an amicable resolution or settlement by resort to mediation and failing that communicate his findings to the concerned bank with the direction--
(a) to reconsider the matter;
(b) to modify or cancel the earlier decision, action or failure to take the appropriate action;
(c) to pay reasonable compensation to the complainant as fixed by the Banking Mohtasib;
(4) Any bank, or official of a bank, or a complainant aggrieved by any order passed by the Banking Mohtasib may, within thirty days of the order, prefer an appeal to the Governor State Bank, who shall decide the appeal within sixty days"
11. Section 82A(3) sets out the scope and extent of the Mohtasib's jurisdiction but this must be read with section 82B(5), which amplifies the former, and in the provision reproduced expressly provides that the Mohtasib has the jurisdiction to entertain complaints in relation to fraudulent or unauthorized withdrawals or debit entries in accounts. Thus, in the present case, the Mohtasib does have jurisdiction (subject to what is stated below) to entertain the company's complaint at least on the facts as alleged by it.
12.
12. Section 82D provides for the procedure for filing complaints, and provides that the aggrieved customer must first intimate the concerned bank in terms of subsection (2). If he does not receive.
Satisfaction within 45 days, he may then proceed to file a complaint with the Mohtasib within a further period of 45 days (which can be extended in appropriate circumstances). In the present case, the Mohtasib himself noted that the company had, given intimation to the bank on 14-11-2011 and on that basis he could not entertain the complaint before 29-12-2011. The Mohtasib thus proceeded, in my view correctly, on the basis that subsection (2) is a condition precedent with regard to the jurisdiction conferred by and under Part IVA. Two further points may be made about subsection (2). Firstly, it requires that in the notice given to the bank concerned, the complainant must intimate his intention of filing a complaint with the Mohtasib. In my view, this condition should not be construed strictly and applied literally. Many of the complainants (i,e,, customers) would not at all be conversant with legal niceties and procedural requirements. Their complaints ought not to be non-suited on technicalities. In my view, if the intimation relied upon, on a fair reading, discloses an intention to take legal action that ought to be construed as including action by way of a complaint to the Mohtasib. In the present case, the company's letter of 14-11-2011 to the bank does not, as such, express an intention to file a complaint with the Mohtasib. It does however indicate that legal action would be taken if the matter is not suitably redressed. In my view, that is sufficient compliance of this aspect of subsection (2).. Secondly, a literal reading and application of the subsection would require the complaint to be filed after the passage of the 45 days' period. Again, such a strict view may seriously inconvenience customers. In my view, if a complaint is filed with the Mohtasib without intimation having first been given to the concerned bank, the Mohtasib 'should simply keep the complaint in his files and ask the complainant to approach the bank. If the complainant reverts after the 45 days' period (within the stipulated time), then the complaint already on file can be taken up. In other words, the complainant should not be asked to repeat something which he has already done. However, in the formal and legal sense, the complaint would only be "entertained" after' due intimation has been given to the concerned bank and the 45 'day period has passed without satisfaction .Being given by It.
13. This brings me to the crux of the dispute as presently relevant, which is the proper scope and application of subsection (4) of section 82D. The subsection opens by making it subject to section 82C, and that is something to which I will refer later. The subsection is cast in negative terms and prohibits the Mohtasib from doing either of two things: (a) issuing an order in the nature of a stay order; or (b) entertaining any complaints, if the "matter" is "pending" before "a court" or "other legal forum". The first point to consider is whether both the things prohibited are conditional upon the matter being pending before a court, etc., or the condition imposed applicable only to the entertaining of a complaint? In my view, the latter conclusion is to be preferred. The prohibition on the Mohtasib issuing an order in the nature of a stay order is absolute. The condition imposed at the end of the subsection applies only in relation to the entertaining of a complaint.
14. The next question that requires consideration is as to when can the Mohtasib be said to have entertained a complaint? The answer to this has already been given above. He has the jurisdiction to entertain a complaint only after 45 days have passed from the complainant having given due intimation (in the sense explained above) to the concerned bank, but without any satisfaction being given by the latter. If the complaint is already on his files, then the Mohtasib can take it up and (also as explained) it is only than that he can be said to have entertained it. The crucial date for purposes of subsection (4) is to be determined in the foregoing manner. If on that date, there is a matter pending in a court or other legal forum, the Mohtasib must stay his hand. He has not the jurisdiction to entertain the complaint and for him to proceed with it would be unlawful. If however, there is no such matter pending then the bay contained in the subsection is inapplicable and the Mohtasib may proceed with the matter (subject to what is stated below: see para 17).
15.
15. Having carefully considered subsection (4), I am of the view that the "court" or other "legal forum" referred to in the subsection must be a 'court of civil jurisdiction or a forum that can give relief of a civil nature. (An obvious example of the latter is a reference to an arbitrator.) It cannot however be a court of criminal jurisdiction. The reason is that the matter that falls within the Mohtasib's jurisdiction is of a civil nature. Subsection' (4) clearly contemplates that the "matter" that is before the Mohtasib (i,e,, the complaint) ought to be of the same nature as that pending before the court or other legal forum. It is also pertinent to note that the relief which is sought from the court or other legal forum (or that it can grant) may not necessarily be the same as claimed from the Mohtasib (or that he can grant). It is the "matter" that is relevant and determinative. In my view, both learned counsel for the Mohtasib and for the company are correct in pointing out that the same fact-situation can give rise to both criminal and civil liability and each has to be dealt with on its own terms and according to its own nature. The "matter" in criminal and civil proceedings is different. This is also indicated by the fact that the standard of proof is different. An offence (which is the "matter" in a criminal case) must be proved beyond reasonable doubt. Civil liability (which is the "matter" in, e.g., a civil suit) must be established on a balance of probabilities.
As is well known, an aggrieved person, as complainant in a criminal case, may fail to prove that an offence has been committed and yet may succeed as the plaintiff in a civil suit in respect of the same fact-situation. Obviously, the complaint before the Mohtasib need not be established beyond reasonable doubt. While the standard of proof required may not exactly be a balance of probabilities (it may, in certain respects, be higher or greater than that), it is nonetheless more akin to the latter. Finally, section 82C to which subsection (4) is subject, clearly applies only in relation to civil proceedings, i,e,, a recovery suit (whether under the general law or some special law relating to bank financing). This is also an indication the "court" referred to in the subsection can only be a court exercising civil jurisdiction.
16. In view of the foregoing, I am of the view that the criminal case pending in the Special Court is not relevant for purposes of section 82D(4). It is not in dispute that on 29-12-2011, no proceedings were pending in a court of civil jurisdiction or before any legal forum empowered to give relief of a civil nature. It follows that subsection (4) cannot be regarded as applicable in the facts and circumstances of the present case. Since this was the sole basis on which the bank pressed its case for interim injunctive relief, it also follows that such relief ought not to be granted. The case- law relied upon by learned counsel for the bank need not be considered in detail. The reason is that it goes not to the jurisdictional question (with which alone I am presently concerned) but rather to what might be called the merits of the case, i,e,, the question of whether there was a fraudulent withdrawal from or debit of the company's account. The bank will of course be entitled to rely on this case-law and the principles thereby established and any other applicable legal rule, provision or principle when the matter is considered by the Mohtasib on its merits.
17. Before concluding, .1 may refer to certain submissions made by learned counsel for the Mohtasib, as noted above. He submitted that if a civil suit (or any proceeding before any other legal forum) involving the same "matter" is filed subsequent to the date on which the Mohtasib has lawfully entertained the complaint, it is the civil suit (or other proceeding) that must be stayed. He also submitted that the jurisdiction of the civil courts may be regarded as having been ousted by the "special" provisions of Part IVA and the "special" forum or tribunal thereby created, i,e,, the office of the Mohtasib. These issues do not presently arise, but it may be that in such a situation it is the complaint before the Mohtasib that is to be stayed. However, I make no observation and record no finding with regard to these issues and expressly leave them open to be -considered in an appropriate case.
18. In view of the foregoing, I conclude that the application presently under consideration fails and it is hereby dismissed. The interim order made earlier stands recalled and vacated.