' This judgment will dispose of F.A.Os. Nos. 13 to 19 of 1992 and 22 of 1992, inasmuch as identical questions of law and facts are involved therein.
2. Briefly stated facts of the case out of which these FA.Os. have arisen are that the appellant in all the appeals filed civil suits in the Court of learned Senior Civil Judge, Islamabad against Agricultural Development Bank of Pakistan, the respondent in these appeals for rendition of accounts and grant of decree for permanent injunction against the respondent to the effect that proceedings should not be held against the plaintiffs under the provisions of section 25 of Pakistan Agricultural Development Bank of Pakistan Ordinance, 1961. It is alleged in the plaint of each suit that the respondent sanctioned loan for the purpose of import of combine Harvesters etc., which loan facility was utilized by the plaintiff for the purpose of the import of the said combines and bailers. It is alleged that there was an agreement between the plaintiff and the respondent that no other Company shall be granted financial facilities for the purpose of import of combines etc. but in utter violation of this condition of the agreement between the parties certain other Companies were also provided loan facility for importing of Combines Harvesters etc., as a result whereof an unhealthy competition started and the result was that the price of the harvesters fell to bare minimum which caused loss to the plaintiff, and therefore, he plaintiff could no re-pay the loan amount. The respondent started proceedings under the provisions of section 25 of Ordinance of 1961 referred to above for the recovery of the amount utilized by the plaintiff as loan facility in pursuance of the agreement executed between the plaintiff and the respondent through coercive process as arrears of Land Revenue. Consequently, the plaintiff filed a suit seeking rendition of accounts and grant of decree for permanent prohibitory injunction in the Court of learned Senior Civil Judge, Islamabad. An application was filed by the respondent under Order VII, rule 11, C.P.C., seeking rejection of plaint on the ground that as the plaintiff is being proceeded against under the provisions of section 25 of the Pakistan Agricultural Development Bank Ordinance, 1961 read with the provisions of Land Revenue Act, therefore, as per provisions of Section 91 of the Land Revenue Act, unless and until the amount claimed is deposited in Court the Civil Court has no jurisdiction to proceed with the suit and further that the agreement was signed and concluded between the parties at Lahore, therefore, the Civil Court at Islamabad has no territorial jurisdiction. This application was contested by the plaintiff on the ground that the provisions of section 91 of the Land Revenue Act are not attracted in the case and that the business place/office of the respondent being at Islamabad, the Civil Court at Islamabad has territorial jurisdiction to try the suit. Learned trial Court vide order, dated 13-2-1992 out of which FA.Os. 13 to 19 have arisen and order, dated 18-3-1992 out of which F.A.O. No,22 of 1992 has arisen, accepted the application filed by the respondent returning the plaint of the suit filed by the plaintiff for want of territorial jurisdiction.
These orders have been challenged in these appeals. During the pendency of these appeals, the respondent filed applications in all the appeals under the provisions of section 6(4) read with section 13 of Banking Companies (Recovery of Loans) Ordinance, XIX of 1979 for transmission of the suits to the Court of learned Special Judge Banking, constituted under Banking Companies Recovery of Loans Ordinance, 1979. It is alleged in the application that as per notification issued by the Federal Government dated 1-10-1992 published in the official Gazette of Pakistan on 4-10-1992 provisions of Banking Companies (Recovery of Loans) Ordinance, 1979 have been made applicable to the A.D.B.P., therefore, neither the Civil Court at Islamabad nor at Lahore shall have jurisdiction in the matter and the suit shall have to be presented before a Special Judge Banking Court constituted under Banking Companies Ordinance XIX of 1979. These applications have been contested by the appellant and reply thereto has been submitted by the learned counsel for the appellant in each case to day. All the eight appeals have been fixed before me for decision of the appeals as well as the C.Ms. referred to above. Regarding the objections raised in the C.Ms. it was agreed to by both the learned counsel that this objection shall be decided alongwith the main appeal as being a legal objection with regard to the jurisdiction of the Civil Court. Resultantly, C.Ms were disposed of with the direction that the objection raised in the applications shall be treated as objection available to be raised in the main appeals.
3. In support of these appeals, Mr. Asif Jan, learned counsel has appeared and has raised the following contentions:---
(i) that the findings of the learned trial Court to the effect that the Civil Court at Islamabad has no territorial jurisdiction, is illegal, inasmuch as, under the provision of section 20, C.P.C., the business office of the respondent being at Islamabad, the Civil suit at Islamabad is maintainable, and, therefore, the plaint has illegally been returned for want of territorial jurisdiction. In this behalf learned counsel has placed reliance on cases of 1981 SCMR 494 and AIR 1929 PC 88.
(ii) that for the purpose of deciding the question of return of the plaint under Order 7, rule 10, C.P.C., the Court has to see the contents of the plaint as framed, and if the same show that the Court has jurisdiction, the plaint cannot be returned. The controversial question of facts cannot be decided without framing of issues and giving opportunity to lead evidence. Learned counsel has placed reliance on cases of Masjid Maiz, Maiz Bin Jabal and Madarsa Binoria Qasim Aloom v. Sadiq Ali Rizvi 1987 CLC 1144 and Mst. Koori and another v. Allah Wasaya and others 1985 CLC 2852.
(iv) That the amount which is sought to be recovered by the respondent is not in fact on account of loan received by the Appellant but is the type of claim arising out of a partnership business of sharing of equities and hence the dispute in question is maintainable only in the Civil Court and not in the Court of Special Jude Banking Court.
(v) That the provisions of section 91 of the Land Revenue Act are not applicable to the case as the amount "due" is yet to be determined and the accounts are still to be settled, it cannot be said that the amount which is being claimed by the respondent is "due" and hence recoverable as arrears of land revenue. Consequently, the coercive process issued by the respondent for the recovery of disputed amount is without jurisdictiom, and, therefore, the provisions of section 91 of Land Revenue Act are not at all attracted to the facts of the case in hand. Reliance in this behalf has been placed on case of Agricultural Development Bank 'of Pakistan v. Sana Ullah Khan and others PLD 1988 SC 67, Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384, Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047, Aakaria A. Bawani v. City Deputy Collector, Karachi and two others PLD 1975 Karachi 1008.
4. As against the above arguments addressed by the learned counsel for the appellant, Mr. Qaisar Javed Mian, Advocate, learned counsel for the respondent has argued that as the contracts were entered into, finalized and signed at Lahore, hence the Civil Court at Islamabad shall have no territorial jurisdiction and hence, the learned trial Court has rightly held that the Civil Court at Islamabad did not possess jurisdiction to try the suit, and therefore, the plaint has rightly been returned, and at any rate, in view of the new development which has emerged as a result of the provisions of Notification No,F-1(2)Bkg-IV. 88-2198, dated 1-10-1992 referred to above, the total legal position has changed and now neither the Civil Court at Islamabad nor at Lahore has jurisdiction to try the suit and the plaint shall have to be presented before Special Court Banking. In support of his contentions, learned counsel for the respondent has placed reliance on cases of District Judge, Karachi 1985 CLC 718, Mst. Yasmeen Nighat and another v. National Bank of Paksitan PLD 1984 Peshawar 188, Munir Ahmed Siddiqui and another v. Feroze Ahmed Siddiqui and 2 others 1990 MLD 1776 and Haji Nabi Ullah and another v. M/s. Habib Bank Limited and 2 others PLD 1990 Peshawar 17.
Learned counsel has further contended that as is clear from the perusal of paragraphs 5, 6, 8, 17 and 18 of the plaint itself that the amount claimed from the plaintiff is a loan and the respondent being a Banking Company is entitled to proceed against the plaintiff for the recovery of the said loan and they have absolutely no right to file a suit for rendition of account, inasmuch as, the respondent has no such relationship between the plaintiff and the respondent on the basis whereof the suit for rendition of account may be filed by the plaintiff who is a borrower. Learned counsel contends that even if it is assumed for the sake of argument that the plaintiff has a cause of action, he has to file the suit before Special Court Banking constituted under Banking Companies (Recovery of Loans) Ordinance, 1979 being a borrower and the civil Court has absolutely no jurisdiction in the matter. Learned counsel has further contended that the provisions of section 91 of Land Revenue Act are fully applicable to the case, and, therefore, unless and until the amount is deposited, the plaintiff cannot file a suit seeking a restraint decree against the plaintiff.
5. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record of this case as well as the case-law. In order to appreciate the argument addressed by the learned counsel for the parties, it will be necessary to reproduce the relevant provisions of law on the subject, which are as follows:--- Section 20, C.P.C.
"Subject to the limitations aforesaid every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises. EXPLANATION 1: ' Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
EXPLANATION 2.
' A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
Sec. 91 of the Land Revenue Act.---(1) Notwithstanding anything in section 79 when proceedings are taken under this ' ' 'Act for the recovery of an arrear the person against whom the proceedings are taken may, if he denies his liability for the arrear or any part thereof and pays the same under protest made in writing at the time of payment and signed by him or his agent, institute a suit in a Civil Court for the recovery of the amount so paid.
(2) A suit under subsection (1) must be instituted in a Court having jurisdiction in the place where the office of the Collector of the District in which the arrear or some part thereof accrued is situate."
SECTION 22 OF AGRICULTURAL DEVELOPMENT BANK ORDINANCE.
1961.
"(1) The bank shall not undertake any kind of business other than that authorized by or under this Ordinance, and, in particular, it shall not---
(a) make any advance or loan or open any credit upon the security of shares of the Bank, buy such shares or allow its shareholders to set-off their debts or part of their debts to the Bank against such shares;
(b) discount or buy or advance or lend or open any credit on the security of any negotiable instrument payable in the town or at the place where it is presented for discount, which does not carry on it the several responsibilities of at least two persons unconnected with each other;
(c) save as provided in clause (ff) of subsection (1) of section 19, purchase or subscribe to shares of any company or other body, corporate or otherwise acquire any such shares except in the course of the satisfaction of any of its claims;
(d) engage in trade or otherwise have a direct interest in any commercial, industrial or other undertaking except such interests as it may in any way acquire in the course of the satisfaction of any of its claims.
(2) Any share or interest acquired under clause (c) or clause (d) of subsection (1) shall be disposed of by the Bank as early as possible."
SECTIONS 6 AND 6-A OF BANKING COMPANIES (RECOVERY OF LOANS) ORDINANCE.
Section 6.(1) A special Court shall--
(a) in the exercise of its civil jurisdiction have in respect of a claim tiled 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;
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for that purpose have the same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898: ' Provided that a Special Court shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorized in this behalf by the banking company in respect of which the offence was committed; and
(a) exercise and perform such other powers and functions as are, or may be conferred upon, or assigned to it by or under this Ordinance.
(2) Notwithstanding anything contained in subsection (1), a Special Court shall have no civil jurisdiction in a case in which---
(b) arbitration proceedings in respect of the loan are pending before an arbitrator; or
(c) the loan was sanctioned under an agreement between the banking company and the borrower which provides for a dispute between the parties being referred to arbitration.
(3) All proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code, and the Special Court shall be deemed to be a Court for the purposes of sections 480 and 482 of Cr.P.C., 1898.
(4) No Court other than a Special Court shall have or exercise any 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: ' Provided that nothing in this subsection shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or the jurisdiction of any Court such as is referred to in clause (a) or to require the transfer to a Special Court of any proceedings pending before any such Court immediately before the commencing day; ' In respect of proceedings transferred to a Special Court by virtue of subsection (4), the said Court shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence before the transfer and may act on the evidence already recorded by or produced before the Court from which the proceedings are so transferred."
Section 6-A.
"A suit for the recovery of a loan other than a loan referred to in section 4 may be entertained by a Special Court within two years of the expiration of the period of limitation applicable to such suit if the Special Court is satisfied that the Banking Company filing the suit had sufficient cause for not filing it within the said period."
AGRICULTURAL DEVELOPMENT BANK ORDINANCE.
1961. Section 25.(1)
"Where any agriculturist who is under liability to the Bank under agreement makes default in payment or otherwise fails to comply with the terms of his agreement with the Bank, such default or failure not being due to natural calamity, the Bank may, subject to any rules made in this behalf, take over the management of the concern of the agriculturist and sell or realise any property pledged, mortgaged, hypothecated or assigned by'the agriculturist to secure his liability to the Bank.
(2) All sums due to the Bank shall be recoverable as arrears of land revenue.
(4) Sums due from a cooperative society and recoverable under subsection (1) may be recovered in accordance with the provisions of law for the time being in force relating to the recovery of such sums due from a cooperative society to Government."
NOTIFICATION NO. F.1(2) BKG-IV/88-2198. DATED 1-10-1992.
"In exercise of the powers conferred by subsection (3) of section 1 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979) the Federal Government is pleased to specify that the following provisions of the said Ordinance shall apply in the Agricultural Development Bank of Pakistan with immediate effect, namely:--- Sections 1 to 4, 6 to 12 and 14 to 15-A."
' From the perusal of above statutory provisions as interpreted in the cited judgments, following legal propositions are deduced:---
(i) that a suit arising out of a breach of contract may be a loan agreement can be instituted at the place where the contract or breach of contract has taken place or at the place where the Head Office/Business place of the defendants is situate;
(ii) it is the choice of the plaintiff to file a suit at any place where a cause of action wholly or partly has arisen and if he files a suit at one forum available to him under the law, it cannot be said that the forum chosen by him lacks territorial jurisdiction;
(iii) that in case the amount "due" is being recovered as arrears of land revenue without deposit thereof no suit lies;
(iv) that even a borrower, if he wants to file a suit or claim against the Banking Company, who has advanced the loan and the claim arises out of or in connection with a loan, the Special Court Banking shall have exclusive jurisdiction to try the suit business place and office of the respondent being in Islamabad.
6. It is quite clear from the above resume of legal position, that the suit as originally filed in the Court of learned Senior Civil Judge, Islamabad was maintainable in his Court and, it has wrongly been held that the Civil Court at Islamabad lacks territorial jurisdiction. Provisions of section 20, C.P.C. are clear on the point. In order to determine the territorial jurisdiction at initial stage, it is only the contents of the plaint which are to be seen and are to be admitted as correct for the purpose of the decision of territorial jurisdiction of the Court. A perusal of the contents of the plaint clearly shows that the suit could have been filed at Islamabad inasmuch as the Office and business place of the respondent is admittedly in Islamabad and, therefore, the learned trial Court had illegally held that the Civil Court at Islamabad has no territorial jurisdiction to try the suit. Resultantly, this finding of the learned Trial Court is set aside and it is held that the suit as originally filed in the Court of learned Senior Civil Judge at Islamabad was competent and the Civil Court at Islamabad had the territorial jurisdiction to try the same.
7. As per law declared in cases Agricultural Development Bank of Pakistan v. Sana Ullah Khan and others PLD 1988 SC 67, Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384, Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 and Zakaria A. Bawani v. City Deputy Collector, Karachi and two others PLD 1975 Karachi 1008, it has become an established legal proposition that unless and until an amount is determined judiciously as being "due" and is declared as arrears of land revenue, coercive process as provided under the Land Revenue Act cannot be adopted. In the case in hand, keeping in view the dispute being raised by the appellant about the amount being "due", the provisions of section 91 of the Land Revenue Act do not debar the plaintiff to file the suit without deposit. Resultantly, the finding of the learned trial Court on this issue is also set aside and it is held that the suit is not barred under section 91 of the Land Revenue Act. However, the appeal cannot be accepted on the basis of the findings rendered above, in view of the applicability of the provisions of Banking Companies (Recovery of Loans) Ordinance, 1979, to the Agricultural Development Bank of Pakistan, as per Notification No, F.1(2) Bkg-IV/88-2198 dated 1-10-1992. This Notification has made the provisions of Ordinance XIX of 1979 applicable to the respondent-Bank as well which is admittedly a Banking Company and as is clear from the perusal of the contents of the plaint itself, whatever nomenclature may be given to the transaction between the parties, the amount which is being recovered from the plaintiffs is loan and the dispute which has been raised in these suits necessarily relates to the agreement of loan and arises out of the same. Therefore, as per provisions of section 6-A of the Banking Companies (Recovery of Loans) Ordinance, 1979, the jurisdiction of all other Courts is barred and now it is only the Special Court Banking, which has jurisdiction to try the suit as per law declared in the cases cited by the learned counsel for the respondent and the case Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187.
8. Resultantly, it is held that the suit is not maintainable before the Civil Court at all and is triable by Special Court Banking constituted under Ordinance XIX of 1979. I see no force in these appeals, the same are dismissed and it is directed that the plaints of all the suits shall be returned to the plaintiff in each case for presentation before Special Court Banking constituted under the Banking Company (Recovery of Loans) Ordinance, 1979. As a difficult legal question was involved, parties are directed to bear their own costs.