This judgment will dispose of FA.Os. Nos. 2, 3 and 4 of 1993 imasmuch as identical questions of law and facts are involved in these cases.
2. The appellant which is a banking company has initiated proceedings for recovery of loan against the respondent under the provisions of section 25 of the Agricultural Development Bank of Pakistan Ordinance, 1961. An a counter-blast to the aformentioned proceedings, respondent filed a suit for rendition of accounts and for grant of decree for temporary injunction against the appellant in the Court of learned Senior Civil Judge, Islamabad. Case of the respondent is that although, the loan was granted to the respondent by the appellant yet in pursuance of the agreement and arrangement between the parties, in fact, the plaintiff-respondent is entitled to the grant of decree for rendition of accounts and therefore, the recovery proceedings are illegal and without lawful authority and hence a decree for rendition of accounts and a decree for grant of permanent injunction may be passed in favour of the plaintiff. Alongwith the plaint, an application for grant of stay order was filed. Learned Senior Civil Judge, Islamabad vide order dated 29-9-1992 accepted the application and granted stay order in favour of the plaintiff. This order has been challenged by the defendant-banking company through these FA.Os.
3. These appeals came up for limine hearing on 10-1-1993 and on which date they were admitted to regular hearing and I suspended the stay order granted by the learned trial Court. Consequently, an application was filed on behalf of the respondent through Mr. Asif Jan, Advocate for vacation of stay on the ground that certain other F.A.Os. Nos 13 to 19 and 22 of 1992 were already pending on the subject although regarding different transactions and the stay order has been obtained from this Court by suppression of factum of pendency of these FA.Os. Therefore, the order of suspension of stay order passed by this Court may be vacated. Consequently, vide order dated 24-1-1993, I had directed that these matters shall also be heard alongwith FA.Os. Nos. 13 to 19 and 22 of 1992. I also directed that coercive measures shall not be adopted by the appellant against the respondent till further orders. Today I have heard the arguments in the connected matters and also heard the arguments in these appeals.
4. Mr. Nabeel Sarwar, Advocate has appeared on behalf of the appellant in all the three appeals whereas Mr. Asif Jan, Advocate has appeared on behalf of the respondent. In support of these appeals, learned counsel for the appellant has contended that the appellant being banking company is entitled to recover amount of loan from the respondent, the receipt whereof has been admitted, and, therefore, in money matters the learned lower Court had no jurisdictions to grant stay order against the recovery of loan. Learned counsel further contended that grant of stay order in fact is against the public interest inasmuch as if the banking company involved is restrained from recovering loan advanced by it, it will not be possible for the same to work and public- atlarge will suffer irreparable loss. On the other hand, if the amount is recovered from the respondent and ultimately if he succeeds in the suit, no irreparable loss shall accrue to the respondent as he can get his claim satisfied from the Bank. Therefore, the order passed by the learned lower Court is erroneous in law. Learned counsel has further contended that in view of the applicability of the provisions of Banking Companies (Recovery of Loans) Ordinance, 1979, which have been made applicable to appellant-bank in pursuance of the Notification No.F.1(2) Bkg.
IV/88-2198, dated 1-10-1992, the Civil Court has no jurisdiction to continue with trial of the suit and therefore the order passed by the learned trial Court is without jurisdiction and not only the stay application is liable to be dismissed but the plaint is also liable to be returned under the provisions of Order VII, Rule 10, Cr.P.C.
5. As against the above arguments addressed by the learned counsel for the appellant Mr. Asif Jan learned counsel for the respondent has argued that the appeal is barred by time and there being no application for condonation of delay, the same is liable to be dismissed and further that the dispute between the parties does not arise out of a contract of loan but the agreement between the parties is in the nature of partnership business and therefore the suit filed by the respondent seeking rendition of account is necessarily triable by the Civil Court and the Special Court Banking has no jurisdictions to entertain and decide the suit. Learned counsel however, concedes that in case the Court come to the conclusion that the suit is triable by the Special Court Banking, then the plaint shall have to be returned and the stay order issued by the trial Court shall also be liable to be vacated for want of jurisdictions.
6. When confronted with the provisions of Article 156 of the Limition Act which provides a period of three months for filing of appeal in the High Court, learned counsel for the respondent has withdrawn his objection with regard to the limitation in filing of appeal. Resultantly, the appeals are held to be within time.
7. I have considered the arguments addressed by the learned counsel of the parties and have gone through the record. It is quite clear from the contents of the plaint that the suit arises out of an agreement in pursuance whereof the loan was taken by the respondent from the appellant- bank, which is admittedly a banking company. The claim of the plaintiff arises out of the contract in relatitn to the grant of loan to the plaintiff. In pursuance of a Notification No. F.1(2) Bkg.-IV/88-2198, dated 1-10-1992, provisions of Banking Companies (Recovery of Loans) Ordinance, 1979 have been made applicable to the appellant-bank as well. Consequently, the suit which has been filed by the respondent who is admittedly a "borrower" is exclusively entertainable and triable by Special Court Banking constituted under Ordinance XIX of 1979, the Civil Court has been left with no jurisdiction to try the suit. The suit has been filed on 15-4-1992, the stay order has been granted on 29-9-1992.
Ordinance XIX of 1979 has been made applicable to the appellant-bank on 4-10-1979.
Consequently, application out of which this appeal has arisen and wherein the stay order has been granted is not triable by the Civil Court as per law declared in cases Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, In re: District Judge, Karachi 1985 CLC 718, Mst. Yasmeen Nighat and another v.
National Bank of Pakistan (PLD 1984 Peshawar 188), Munir Ahmad Siddiqui and another v. Feroze Ahmad Siddiqui and 2 others 1990 M LD 1776 and Haji Nabi Ullah and another v. M/s. Habib Bank Ltd. and 2 others PLD 1990 Peshawar 17. Hence the stay order issued by this Court also cannot be allowed to remain in force inasmuch as there being no jurisdiction to try the main suit, the stay order issued by Civil Court shall also have to be vacated. Even otherwise, respondent having admitted to have received loan and utilised the same which was advanced by the appellant- banking company, do not have a prima facie case for grant of interim stay against recovery of loan by the appellant. It being a money matter, no irreparable loss will be suffered by the respondent in case the amount is recovered. Resultantly, if the stay order remains in force, the appellant which is banking company and is working in the public welfare shall definitely suffer an irreparable loss. The stay order which is discretionary relief cannot be granted for the interest of an individual as against the interest of public-at-large. In case recovery of the loan is stayed, it will not be possible for the appellant-bank to function and therefore public interest will also suffer. Hence it is not a fit case where stay order should have been granted by the learned Court. Consequently, the order dated 29-9-1992 passed by the learned trial Court is set aside and the stay application filed by the respondent is dismissed. As discussed earlier, in view of the applicability of the provisions of Ordinance XIX of 1979, the suit is not maintainable before the Civil Court and is exclusively triable by Special Court Banking in terms of the provisions of section 6-A of Ordinance XIX of 1979, it is held that the trial Court has no jurisdiction to try the suit. As per provisions of Order VII, Rule 10, Cr.P.C. the plaint of the suit is liable to be returned. It is directed accordingly. The plaint shall be returned to the plaintiff for presentation before the Court of competent jurisdiction. As a difficult question was involved in these appeals the parties are left to bear their own costs. .