' The petitioner through this application has sought transfer of suit pending in the Court of the Chairman Banking Tribunal, Lahore.
2. The relevant facts are that the petitioner availed cash finance facility from the respondents, who have now filed a suit which is pending in the tout of Mr. Ashiq All Khan, Chairman Banking Tribunal constituted under Banking Tribunals Ordinance No,LVIII of 1984. The petitioner also proceeded to file a suit for recovery of Rs,1,00,00,000 (Rupees one crore) as damages etc., which is pending in the Court of Mr. Zulfiqar All Khan, Banking Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979. The petitioner through this application has prayed that both the suits may be consolidated in one Court. The petition was admitted to hearing and notice was issued to the respondents, who have appeared through Mr. Muhammad Qamar-uz-Zaman, Advocate and contested the petition.
3. The learned counsel for the petitioner argued that since the suits of the petitioner and respondents hav arisen from the same transaction, therefore, it is in the interest of justice that the same be heard and decided by one and the same Court. It is added that this Court has ample powers under section 24, C.P.C. As well as under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 to allow the relief.
4. On the other hand, the learned counsel for the respondents argued that both the Special Court and Tribunal have been constituted under different statutes and are Courts of exclusive jurisdiction, therefore, the suits cannot be consolidated. It is added that no suit is competent between the banking company and the customer. The learned counsel in this behalf has referred to section 5 of both the statutes under which the Tribunal and Special Court have been constituted and referred the case of Messrs Shafiq Hanif (Pvt.) Ltd., Karachi v. Bank of Credit of Commerce International (Overseas) Limited, Karachi PLD 1993 Kar. 107 and Messrs Grain Systems (Pvt.) Ltd. And 10 others v.
Agricultural Development Bank 1993 SCMR 1996. It is submitted that the judgment of Peshawar High Court reported as Haji Nabiullah and another v. Messrs Habib Bank Ltd. Through President Bank, Head Officer Karachi and 2 others PLD 1990 Pesh. 17; was not approved which cases reported as Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others PLD 1981 SC 359; Azhar Hussain v.
Chartered Bank Ltd., Faisalabad and 17 others 1981 CLC 516 are not relevant to the present controversy as these were civil suits and decided with reference to section 3 of the C.P.C. It is added that Article 203 is not applicable. In this behalf, the learned counsel has referred to Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. And another PLD 1984 Lah. 69 and United Bank Ltd. v. Jaffar Flour & Oil Mills Ltd. And 2 others PLD 1985 Lab.
541.
5. It is maintained that both the suits are independent and have to be decided in accordance with their merits, therefore, their consolidation even otherwise is not desirable. The learned counsel in this behalf has referred to United Bank Limited v. Muhammad Luqman Muhammad Hanif Brothers and others 1987 CLC 2541 and Rehmat Bibi and another v. Hafiz Shamas-ud-Din and others 1983 CLC 2563. The arguments are summed up with the submission that since Tribunal and Special Court enjoy exclusive jurisdiction, therefore, this Court cannot bestow on them powers, which are not conferred by the statute.
6. The learned counsel for the petitioner while summing up the arguments submitted that since this Court is competent to try the suits under Ordinance, 1984, therefore, both the suits may be transferred to this Court.
7. Mr. Shahid Hamid, Advocate was present in connection with the other case. He was asked to assist the Court and he has kindly referred to the two judgments in TA. No3-B of 1992, which was disposed of as a result' of compromise between the parties, who agreed to continue to pursue their matters in the respective Courts. While in case of Writ Petition No,7126 of 1993, which was directed against the order of the Special Judge Banking, Lahore, whereby the plaint was returned to the plaintiff. The petition was accepted by this Court vide judgment, dated 2-11-1993 with reference to judgment of the Honourable Supreme Court in the case of Messrs Grain Systems (Pvt.) Ltd. And 10 others (supra).
8. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the relevant provisions of law as well as precedent cases. Before proceeding any further it is worthwhile to refer to relevant part of section 5 of the Banking Tribunals Ordinance No,LVIII of 1984, which reads as under:-
5. Powers of Banking Tribunals.--(1) A Banking Tribunal shall--
(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908)."
' It is clear from the above that the suits by the banking company only can be entertained by the Chairman, Banking Tribunal. On the other hand, section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979, reads as under:-- "6. Powers of Special Court.-- (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)."
' The same was interpreted in the case of Messrs Grain Systems (Pvt.) Ltd. And 10 others (supra) and the Honourable Supreme Court held as under:-- "There is constraint on the power of Civil Court. It cannot encroach on the domain of Special Court.
The civil remedy in respect of the subject-matter of the present dispute is expressly barred by the provisions of Ordinance, 1979 against the respondent bank. All the disputes between the petitioners and the bank are to be adjudicated upon by the Special Court, constituted under the Ordinance.
The finding of the learned High Court on this score is unexceptionable."
9. The two Ordinances although apparently cover the identical subject of recoveries of amounts in relation to Financial institution yet their scope is quite distinct. The suits based on loan repayable with interest are to be tried by Special Courts established under Ordinance, 1979 while the cases of financing of non-interest bearing character are triable by Banking Tribunal established under Ordinance, 1984. The Legislature keeping in view their distinct areas of operation has used the terms "borrower" and "customer" which have been defined in section 2(b) and section 2(c) of Ordinance, 1979 and Ordinance, 1984 respectively. The other distinction is that the Banking Tribunal has no jurisdiction to adjudicate suit filed by a "customer' as against this a "borrower" may sue the banking company in view of section 6(a) of the Ordinance 1979. It is well-established principle that the Tribunals/Special Courts have exclusive jurisdiction in the matters assigned to them under the statute, which is responsible for their creation. Conversely speaking Tribunals/Special Courts possess limited jurisdiction and cannot be equated with Courts of general jurisdiction.
10. Now coming to the case in hand. The basic fact is that the Tribunal and Special Court have exclusive jurisdiction, therefore, the suit pending in the Court of Banking Tribunal cannot be transferred to the Banking Court constituted under the Ordinance 1979 and similarly the suit of the petitioner pending in the Banking Court cannot be sent to Banking Tribunal constituted under Ordinance, 1984. Moreover, the subject-matter of both the suits is quite distinct and even otherwise there is no legal justification to consolidate the same or entrust them to one and the same Court. In such situation the suits are to be decided in accordance with their merits. The same was precisely held in the case of Muhammad Luqman Muhammad Hanif Brothers and others. (supra).
11. I may make it clear that although the learned counsel for the respondents raised an objection to the competency of the suit of the petitioner before the Banking Court with reference to section 24 of the C.P.C. It was argued that since the suit is not competent, therefore, transfer application cannot be granted. The fmdings on this controversy are not desirable because it will prejudice the case of either of the parties before the Banking Court. Moreover, this application can be decided without decision of this point.
12. The upshot of the above discussion is that this petition is misconceived, therefore, dismissed with no order as to costs. However, the Banking Tribunal and Banking Court are directed to decide the suits of the parties expeditiously and in any case by 29-6-1995 even if they have to proceed day-to-day.
Applciation dismissed.