The Respondent has not chosen to enter appearance despite issuance of notice through ordinary mode as well as through courier service therefore, he is proceeded against ex-parte.
2. Through the instant Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 (the "Ordinance" ), the Appellant seeks to set-aside order dated 29.09.2017 (the "impugned order" ) passed by the Judge Banking Court, Bahawalpur (the "Banking Court" ) being the Executing Court whereby execution petition was consigned to record room.
3. The relevant facts as mentioned in the appeal are that a suit was filed by the Appellant against the Respondent and Meezan Bank Limited (the "Bank" ) before the Banking Court in respect of transfer of motor vehicle Toyota Corolla Saloon/XLI-2006 (the "Vehicle" ) on the basis of an agreement to sell executed between the Appellant and the Respondent. The said suit was decreed vide order dated 31.01.2017. Execution petition was filed on 02.04.2017 which was consigned to record by the Banking Court through the Impugned Order . Hence this appeal.
4. Learned counsel for the Appellant inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while consigning the execution petition to record; that the impugned order is against law and facts; that the Banking Court has failed to appreciate the fact that it cannot go beyond the decree as it was passed after fulfilling all the requirements of law and as such the Banking Court was bound to execute the decree as it is. The counsel for the Appellant has placed reliance on "Messrs CAPIT AL FARMS, ISLAMABAD Versus NATIONAL DEVELOPMENT FINANCE CORPORA TION" (PLD 1996 Lahore 99), "MUHAMMAD HUSSAIN and another Versus MUHAMMAD SHAFI and others" (2004 SCMR 1947 ), "Mst. KHAIR-UN-NISA CHANNA Versus FEDERA TION OF PAKIST AN and others" (2004 SCMR 1714 ), "Sardar AHMED YAR KHAN JOGEZAI and 2 others Versus PROVIN CE OF BALOCHIST AN through Secretary , C&W Department" (2002 SCMR 122), "Mst. NASEEM AKHT AR and 4 others Versus SHALIMAR GENERAL INSURANCE COMP ANY LIMITED and 2 others" (1994 SCMR 22), "ABDUL SALAM Versus SHARIF AHMAD and another" (1971 SCMR 596), "MUHAMMAD SHARIF Versus JALALUDDIN" (1971 SCMR 594), "Hafiz MUHAMMAD ASHIQ HUSSAIN Versus Mst. ABIDA BEGUM" (1996 MLD 588), "LAND ACQUISITION COLLECT OR (PWD), B&R CENTRAL REGION, LAHORE and others" (1989 MLD 1850), "YOUSUF ALI Versus ALI GOHAR" (2007 CLC 1741 ), "EXECUTIVE VICE-PREIDENT and another Versus Brig. (R) MIAN HAMEED-UD-DIN" (2010 CLD 823) and "HABIB BANK L TD and another V ersus W ASIM ENTERPRISES and others" ( 2007 CLD 473 ).
5. We have heard the arguments and perused the record.
6. The Appellant has disputed the order dated 29.09.2017 whereby the Banking Court while exercising powers under Section 47 of CPC refused to execute the decree on the grounds that (i) there exist no relationship of customer and financial institution and (ii) the decree was was passed without jurisdiction. The relevant portion of impugned order is reproduced hereunder: "Perusal of the record reveals that admittedly the loan was obtained by the judgment debtor from the Bank and not by the decree holder , thus there does not exist relationship of customer and financial institution between the decree holder and judgment debtor".
7. It evinces from the record that the Appellant filed suit for permanent and mandato ry injunction before the Banking Court which was somehow decreed vide order dated 31.01.2017, execution of which was filed and consigned to record by the Banking Court through the impugned order . It is settled law that suit for permanent and mandatory injunction cannot be filed before the Banking Court rather to institute a suit before the Banking Court, requirement of Section 9(1) of the Ordinance has to be fulfilled. The Section 9 of the Ordinance states as under: "9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any 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".
In the above section three words are of importance namely "Customer", "Finance" and the "Obligation" . All these words have been defined in Section 2 (c), (d) and (e) of the Ordinance FIO, 2001, as
(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;
(d) "finance" includes
(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing, licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-back 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;
(vii) 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;
(viii) any other facility availed by a customer from a financial institution.
(e) "obligation" includes
(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and
(ii) any and all representations, warranti es and covenants made by or on behalf of the customer to a financial institution at any stage, including repre sentations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on, assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfillment of a promise; and
(iii) all duties imposed on the customer under this Ordinance
8. From the above provisions of law, it is clear that under the Ordinance only those issues can be solved which are between the customers and the financial institutions in respect of finance and that too on the ground that any obligation has not been fulfilled. When the definitions, mentioned above, are read with the facts of the present case it is clear that the Appellant was not the customer of the Bank rather it was the Respondent who availed the loan facility in respect of the Vehicle and paid the monthly installments and in this respect NOC was issued in his favour by the Bank on 18.06.2013. Reliance is placed on "MARHABA PAKIST AN INTERNA TINOAL and others Versus HABIB BANK LIMITED and another" (2017 CLD 995) where it has been held that "any person other than as defined in S.2(c) of Financial Institutions (Recovery of finances) Ordinance, 2001 did not come within the definition of a 'customer '".
9. The counsel for the Appellant has strenuously agitated before us that the Banking Court being the Executing Court cannot go beyond the decree as it has to execute the decree as it is. The answer of this query has already been discussed and elaborated by the Hon'ble Supreme Court of Pakistan in "HABIB BANK LIMITED Versus Mst. P ARVEEN QASIM JAN and others" ( 2014 SCMR 322 ) in the following manner: "There is no cavil with the proposition that a Court executing a decree ordinarily is not supposed to travel beyond its terms as held in number of judgments pronounced by superior Courts, few of them have been referred by the learned counsel for the petitioners in his arguments but simultaneously the executing Court while exercising jurisdiction under section 47, C.P.C. can question the executability of a decree if it is satisfied that the decree is a nullity in the eye of law or it has been passed by a Court having no jurisdiction or the execution of the decree would not infringe the legal rights of the decre e-holder if refused to be executed or the decree has been passed in violation of any provision of law ."
10. The principles enunciated and the question of law decided by the Hon'ble Supreme Court in Habib Bank case (supra), is binding on us under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution" ). We have noted that the suit was filed by the Appellant against the Respondent and the Bank but perusal of the decree reveals that it was decreed ex-parte to the extent of present Respondent however , the contentions of the Bank were not considered at the time of passing of decree rather the same was taken into account during the execution proceedings. The Banking Court in the impugned order noted that the loan was obtained by the Respondent from the Bank and not by the Appellant because there exists no relationship of customer and financial institution between the Appellant as per Section 9 of the Ordinance and the mentioned definitions. Therefore, the Banking Court has rightly passed the impugned order which is in line with the Habib Bank case (supra).
11. Needless to add that judgments referred by the learned counsel for the Appellant cannot be relied upon being distinguishable from the facts and circumstances of the case as each and every case has its own merits.
12. We, therefore, find no illegality in the impugned order which has been passed in consonance with the spirit of law, the Ordinance, hence, does not call for interference by us in the instant appeal.
13. In the circumstances presented hereinabove, this appeal being devoid of any merit, is hereby dismissed .