' The plaintiffs (a Banking Company) on 7th May, 1979 filed this application for the execution of decree for Rs, 4,22,177.65 passed in their favour against the defendants on 2nd October, 1974 in Suit No, 93 of 1969.
' The above-mentioned decree was passed against the defendants Nos. 1 and 2 who were the employees of the plaintiff-bank and the defendant No, 3 a near relation of the said defendants, on the finding that they under a conspiracy defrauded the said bank and dishonestly withdraw money in cash and by means of pay orders and were thus "liable jointly and severally to compensate the plaintiff bank".
' A question has arisen as to the maintainability of the present execution application filed in this Court on 7th May, 1979 in view of the coming into force of the Banking (Recovery of Loans)
Ordinance No, XIX of 1979 (hereinafter referred to as the said Ordinance of 1979) which came into force with effect from 1st April, 1979.
2. In order to resolve the question involved it would be relevant to refer here to subsections (1)(a),
(2) and (4) of section 6 of the aforementioned Ordinance of 1979, which deal with the powers of Special Courts, under the said Ordinance. Section 6.-Powers of Special Court. Subsection (1)-A Special Court shall-
(a) in the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908)."
' Subsection (2).-Notwithstanding anything contained in subsection (1), a Special Court shall have no civil jurisdiction in a case in which :-
(a) the outstanding amount of the loan does not exceed one lac rupees ;
(b) arbitration proceedings in respect of the loan are pending before arbitration ; or
(c) the loan was sanctioned under an agreement between the banking company and the borrower which provide for a dispute between the parties being referred to arbitration."
' And subsection (4)-Provides as follows :-
(4) No Court other than a Special Court shall have or exercise jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under 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 proceedings 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."
From a perusal of the provisions (relevant for the purposes of this case) reproduced above it would be observed that a Special Court created A under the said Ordinance, 1979, exercises civil jurisdiction in respect of claims filed by a banking company against a borrower or by a borrower against a banking company in respect of or arising out of a loan.
3. This brings us to the consideration of terms "borrower" and "loan" defined in section 2 on the said Ordinance, 1979, as follows :-
(b) "borrower" means a person who has obtained a loan from a banking company and includes a surety or an indemnifier ;
(c) "Loan" includes ;
(I) an advance, cash credit, overdraft, packing credit, a bill discount and purchased or any other financial accommodation provided by a banking company to a borrower ;
(ii) a guarantee, indemnity, letter of credit or any other finance engagement which a banking company may give, issued or undertake on behalf of a borrower ;
(iii) a benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted ;
(iv) any amount due from any borrower to a banking company under a decree passed by a civil Court or award given by an arbitrator ; and
(v) any loan due from any borrower to a banking company which the subject-matter of any pending suit, appeal or revision before a Court."
Relevant would it be to note that by use of the word "includes" while defining the term "loan", the legislature has intended to enlarge the meaning of the said phrase so as to comprehend within its meaning not only such things as it signifies according to its natural import but also those things which the interpretation clause declares that they shall include. Messrs Osmania Glass Sheet Factory Ltd. v. Sales Tax Officer (1) and Shah Mardan Shah v. Chief Land Commissioner (2).
4. Looked into the matter in the light of the above discussion, we find that the jurisdiction of the Special Court to entertain the execution application, shall depend upon the existence of a claim by a banking company against a borrower in respect of or arising out or loan. The cause of action on which suit was brought and decree was passed, which now is sought to be executed, was based upon conspiracy and fraud played by the defendants whereby the plaintiff-bank was wrongfully deprived of the amount claimed in the suit. The liability of the defendants towards the plaintiff did not arise out of any transaction of loan. The defendants who deprived the plaintiff-bank of a large sum of money by fraud, cannot unilaterally convert their wrongful transaction and assume the character of "borrowers" which term within the meaning of the Ordinance, 1979 would have reference to commercial transactions arising out of mutual agreement between the concerned parties. In the case of Inland Revenue Commissioner v. Browntree & Co. Ltd. (3) while interpreting the provision that no borrowed money shall be deducted, appearing in para. 2 of Part H of Schedule 7 to the Finance (2) Act, 1939, Tucker L. J. Observed :- "I find it difficult, if not impossible, to appreciate how there can be borrowed money unless the legal relationship of lender and borrower exists between A and B. After all, the words "borrow" and "lend" are not words of narrow legal meaning. They represent a transaction well-known to business people which has taken in place in the law as a result of commercial transactions...."
' Reference may also advantageously made to Black's Law Dictionary wherein the words "borrow", "borrower" and "loan" have been shown to have the following meanings :- "Borrow".-To solicit and receive from another any article or thing or value with the intention to repay or return it or its equivalent, "Borrower".-He to whom a thing is lent at his request. "Loan".-Lending.
' Also means advance of money with an absolute promise to repay.
6. Considered in the light of the above discussion. And finding that the claim in suit filed by the plaintiff-bank, out of which the present execution application has arisen, was not in respect of or arose out of a loan transaction the Special Court, a Court of limited jurisdiction, would not be competent to entertain this application for execution of the decree for compensation passed by this Court.
' Accordingly while holding that the execution application has been properly filed in this Court which passed the decree and that this Court
(1) PLD 1971 SC 200 (2) PLD 1974 Kar. 375 '3) (1948) 1 All E R 482 ' is competent to execute the same within the meaning of section 37 read with section 38, C. P. C. I direct that the said proceedings shall continue in accordance with the law. .