' MAMOON KAZI, J.---In each of this bunch of petitions, jurisdiction of Banking Tribunals respectively established for Karachi and Sukkur and Karachi and Larkana Divisions under the Banking Tribunals Ordinance, 1984, has been challenged to try suits respectively filed by respondent-Modaraba Companies against the petitioners, which are now pending before the said Tribunals. By Notification No,SRO 743(1)/92, dated the 5th August, 1992 issued by the Federal Government under the power vesting in it under section 13 of the Banking Tribunals Ordinance, 1984 (hereinafter referred to as "the Ordinance of 1984"), Schedule to the said Ordinance was amended and First, Second and Third Prudential Modarabas were added thereto. The main contention of the learned counsel for the petitioners before us has been that the Federal Government can only incorporate the names of such companies in the Schedule of the Ordinance of 1984 which are carrying on the business of banking and in terms of the definition of "banking company", a modaraba management company cannot be deemed to carry on the business of banking and accordingly, the same cannot be brought within the purview of the said Ordinance by the Federal Government by inclusion of its name in the Schedule to the said Ordinance. The petitions have, however, been resisted by such companies which have been impleaded as respondents in these petitions.
2. Mr. Imtiaz Rashid Siddiqui, learned counsel for the petitioners in C.Ps. Nos.D-3295/93 and D- 3296/93 after taking us through the relevant provisions of the Ordinance of 1984 and the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 (hereinafter referred to as "the Ordinance of 1980") has argued that the Ordinance of 1984 provides for resolution of claims filed by banking companies against the customers, it prescribes a specified procedure for institution of suits filed by banking companies and adjudication thereof, it lays down mandatory provisions for passing of decrees on account of efflux of time, it contains provisions for appeal subject to the pre- condition of deposit of the decretal amount etc., consequently, the exercise of purported powers by the Federal Government and issuance of the impugned Notification thereby violates the scheme of the Ordinance of 1980 by replacing the same with that of the Ordinance of 1984. The same, according to the learned counsel, therefore, infringes the legislative mandate and the rights of the petitioners as guaranteed under Articles 4 and 25 of the constitution. The learned counsel has further argued that in case there is conflict between the schedule or any of the enacting provisions in a statute, the latter must prevail. Reliance in this regard was placed upon the case of Excise and Taxation Officer, Karachi v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. 1993 SCMR 332. Mr. Saalim Salam Ansari and Mr. Abdul Rauf, learned counsel respectively appearing on behalf of the petitioners in C.Ps. Nos.D-2392/93 and D-1534/94 have also adopted the aforesaid contentions. However, the contentions of Mr. Mansoorul Arfin and Mr. A.H. Mirza, learned counsel appearing on behalf of the respondents in the said petitions mainly are that according to the definition of "banking company" given in section 2(a) of the Ordinance of 1984, any company specified in the Schedule of the said Ordinance may be included in the said definition and hence jurisdiction has been rightly exercised by the respondent-Banking Tribunals in the present case.
3. In order to fully appreciate the said contentions, reference may be made to the relevant provisions of the said Ordinance. The Ordinance of 1984, according to its preamble, has come into force "to provide machinery for recovery of finance provided by banking companies under a system of financing which is not based on interest". Section 2(a) of the said Ordinance defines "banking company" as follows:--- "2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or context:---
(a) "banking company" means---
(i) a bank as defined in Banks (Nationalization) Act, 1974 (XIX of 1974),
(ii) a company incorporated outside Pakistan and transacting the business of banking in Pakistan; and
(iii) a company specified in the Schedule,"
' Banking Tribunal has been defined to mean "tribunal established under section 4". The said section empowers the Federal Government to establish by notification in the Official Gazette as many Banking Tribunals as it considers necessary and where it establishes more than one Banking Tribunal, it shall specify in the notification the territorial limits within which each of them shall exercise jurisdiction under the Ordinance of 1984. "Customer" has been defined by clause (c) of the said section to mean as "a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier". Section 2(e) also defines "finance" to include--- "an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, lease, rent- sharing, licensing, charge or fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trade-marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided;"
' Section 5 of the said Ordinance upon which Mr. Imtiaz Rashid has strongly relied, refers to powers of Banking Tribunals. It provides that:-- "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):
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898)?
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it, by or under this Ordinance.
(d)
' It is also pertinent to refer to subsection (3) of section 5 of the said Ordinance which excludes the jurisdiction of any other Court or a Banking Tribunal to exercise jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under the said Ordinance. However, the said subsection is subject to a proviso but reference to the same is not necessary in the present context. The procedure to be followed by a Banking Tribunal in the exercise of its jurisdiction has been laid down in section 6 of the Ordinance of 1984. The said section provides as follows:--- "6. Procedure of Banking Tribunal.---(1) Where a customer commits default in fulfilling any obligation to a banking company, the banking company may file against such customer with Banking Tribunal a plaint which shall be verified on oath by the Branch Manager or an officer of the rank of Assistant Vice-President or Assistant Manager or such other officer as the Board of Directors of the banking company may authorise in this behalf.
(2) On a plaint being filed with the Banking Tribunal in accordance with the provisions of subsection (1), the Banking Tribunal shall issue notice requiring the defendant to show cause, within ten days of the service of such notice, as to why decree as prayed for in the plaint should not be passed against him.
(3) The notice under subsection (2) shall be served on the defendant in accordance with the procedure for service of notice laid down in subsection (3) of section 4 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979).
(4) Upon the defendant failing to file a reply within the time given in the show-cause notice under subsection (2) or upon rejection by the Banking Tribunal of the plea taken by him in the reply, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint.
(5) In the event of the Banking Tribunal passing a decree against the defendant failing to give reply to show-cause notice within the period specified in subsection (2), the Tribunal may, on the application of the filed within thirty days of the passing of the decree, set aside the same and permit the defendant to file his reply under that subsection provided it is satisfied that there was sufficient cause for the defendant not having filed the reply within the specified period.
(6) All suits filed in the Banking Tribunal shall be disposed of within ninety days of the filing of the plaint and in case proceedings continue beyond the said period, the defendant shall be asked to deposit in cash or to furnish a security, acceptable to the Tribunal, equal in value to the claim in suit, and, on failure of the defendant to make such deposit or furnish such security, the Banking Tribunal shall pass decree in favour of the Banking Company as prayed for in the plaint: ' Provided that, where the claim of the banking company is based on default of the defendant in payment of agreed instalments, the deposit or security shall be to the extent of the amount of instalments in default: Provided further that the requirement of deposit in cash or furnishing of security may be dispensed with if in the opinion of the Banking Tribunal the delay is not attributable to the conduct of the defendant.
(7) Any amount deposited by the defendant with the Banking Tribunal under subsection (6) may be withdrawn by the Banking Company upon an undertaking to refund the same to the Banking Tribunal if so ordered at any time.
(8) Where the claim filed before the Banking Tribunal is for the enforcement of a mortgage of immovable property, 'decree' shall mean final decree for foreclosure, sale or redemption, as the case may be, as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure 1908 (V of 1908)."
' Section 9 of the said Ordinance provides for appeals as follows:--- "Appeal.---(1) Any person aggrieved any order of the Banking Tribunal passed under subsection
(4) or subsection (5) of section 6 or a decree or sentence passed under this Ordinance may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court: ' Provided that no appeal filed by the defendant against a decree shall be entertained unless the defendant has deposited with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 or the decretal amount: ' Provided further that, where the claim of the Banking Company is based on the default of the defendant in payment of agreed instalments the deposit shall be to the extent of the amount of instalments in default.
(2) An appeal under subsection (1) shall be heard by a Bench of not less than two Judges."
' Section 12 of the Ordinance further provides that the provisions of the Limitation Act, 1908 shall not apply to any suit, application or other proceedings filed by a Banking Company under the provisions of the said Ordinance. Lastly reference may be made to section 13 of the said Ordinance which vests the Federal Government with power to modify the Schedule. The said section is as under:--- "13. Power to amend Schedule.---The Federal Government may, by notification in the official Gazette, modify the Schedule so as to add any entry thereto or omit any entry therefrom."
4. Reference may now be made to the various provisions of the Ordinance of 1980 to which our attention has been invited by Mr. Lmtiaz Rashid to support his above contentions. Section 2 of the said Ordinance defines "Modaraba" to mean as "a business in which a person participates with his money and another with his efforts or skill or both his efforts and skill and shall include Unit Trusts and Mutual Funds by whatever name called". "Modaraba Company", according to section 2(c), means "a company engaged in the business of floating and managing Modaraba." Clause (d) of section 2 also defines "Modaraba Fund" to mean as "a fund raised through floatation of Modaraba."
Section 5 of the said Ordinance provides that a company shall be eligible for registration as a Modaraba Company in case it fulfils the conditions laid down in clauses (a) to (f) of the said section. Reference to the said conditions is not necessary not being germane to the questions requiring determination in this case. Section 7 of the Ordinance of 1980 lays down that Modaraba may be of two descriptions, viz., Multipurpose Modaraba, that is to say, a Modaraba having more than one specific purpose or objective, and Specific purpose Modaraba, that is to say, a Modaraba having one specific purpose of objective. According to subsection (2) of section 7, a Modaraba may be either for a fixed period or for an indefinite period. Section 8 requires a Modaraba Company to apply to the Registrar for permission to float Modaraba. Section 12 of the Ordinance of 1980 provides that:--- "12.---(1) a Modaraba shall sue and be sued in its own name through the Modaraba Company.
(2) The assets and liabilities of each Modaraba shall be separate and distinct from those of another Modaraba as also from those of the Modaraba Company."
' Section 24 of the said Ordinance provides for Constitution of Tribunals for the purpose of the said Ordinance. Section 25 of the said Ordinance refers to the powers of a Tribunal which may be established under the said Ordinance and it provides as follows:--- "25.---(1) A tribunal shall---
(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a holder of Modaraba Certificates against the Modaraba Company or by Modaraba Company against any other party with whom it has entered into business transactions relating to Modaraba Fund, or in respect of an application by the Registrar for the winding up of a Modaraba Company, 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 the purpose, have the same powers as are vested in the Court of a Sessions Judge under the Code of Criminal Procedure, 1898:
(c) exercise and perform such other powers and functions as are, or may be conferred upon or assigned to it by or under this Ordinance.
' No Court other than the Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of the Tribunal extends under this Ordinance."
' Reference may also be made to section 26 of the said Ordinance which provides for procedure to be followed by such Tribunal established under the said Ordinance. The said section provides as follows -- "26. (1)---Matters before the Tribunal shall come up for regular hearing as expeditiously as possible and, except in extraordinary circumstances and on grounds to be recorded, the Tribunal shall hear the cases from day to day.
(2) In the exercise of its civil jurisdiction, the Tribunal shall, in all suits before it, including suits for recovery of money, follow the summary procedure provided for in Order XXXVII of the First Schedule to the Code of Civil Procedure, 1908."
' Lastly section 42 of the said Ordinance provides that:- "42. The provisions of this Ordinance shall have effect notwithstanding anything contained in the Companies Act, 1913 or any other law for the time being in force."
5. A perusal of the provisions of the Ordinance of 1984 indicates that the said Ordinance vests the Banking Tribunal with exclusive jurisdiction to try claims filed by banking companies against the customers and it also prescribes a specified procedure for resolution of such claims and appeals filed against an order, a decree or a sentence passed by the Banking. Tribunal under the said Ordinance. The procedure provided by the said Ordinance, no doubt, is rigorous as it lays down mandatory provisions for passing of decrees on account of efflux of time and it contains provisions for appeal subject to the pre-condition of deposit of the decretal amount etc. And analogous provisions to the same effect cannot be found in the Ordinance of 1980. The latter Ordinance also provides for establishment of a Tribunal to deal with the matters which may include claims relating to Modaraba Fund etc. Both the Tribunals to be respectively established under the two Ordinances have been vested with exclusive jurisdiction to deal with matters in respect of which they have been vested with power under the respective Ordinance. Consequently, a separate judicial hierarchy has been created by each of the two Ordinances for resolution of disputes respectively arising under the said Ordinances. The paramount question, therefore, requiring determination, is whether the respondent-Modaraba Companies can fall within the purview of the definition of "banking company" as given by section 2 of the Ordinance of 1984.
6. Reference to the meaning of the expression "banking company" in the Ordinance of 1984 indicates that besides including a bank as defined in Banks' (Nationalization) Act, 1974 or a company incorporated outside Pakistan and transacting the business of banking in Pakistan, it also includes a company specified in the Schedule to the said Ordinance. The object behind enactment of Ordinance of 1984, according to its preamble, is to provide for a machinery for recovery of finance provided by banking companies under a system of financing which is not based on interest. No doubt, a preamble has been regarded as a legitimate aid in construing the enacting parts of a statute, but only when a clear and definite meaning is conveyed thereby in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail over the enacting parts as was held by the House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of Hanover (1957) A.C.
436. The same principle is followed by the Courts in Pakistan. Section 5 of the Ordinance of 1984, reference to which was made earlier in this judgment, indicates that in the exercise of its civil jurisdiction, a Banking Tribunal shall 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 powers vested in a Civil Court under the Code of Civil Procedure, 1908. The term "finance" has been defined by the said Ordinance and the definition is sufficiently comprehensive to include accommodation or the facility provided to the petitioners in the present case but the contention of Mr. Imtiaz Rashid has been that as shown by the preamble to the said Ordinance as well as indicated by section 5 of the said Ordinance, a claim can only be filed by a company and moreso a banking company and as is indicated by the definition of "Modaraba" in the Ordinance of 1980, the same is neither a company nor a banking company. It is pertinent to point out that "banking" has been defined by section 5(b) of the Banking Companies Ordinance, 1962 to mean as "the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft order or otherwise". According to clause (c) of the said section, "banking company" has been defined as "any company which transacts the business of banking in Pakistan." Clause (e) of the said section further defines "company" as "any company which may be wound up under the Companies Act, 1913." Clause (7) of section 2 of the Companies Ordinance, 1984 which has now replaced the Companies Act, 1913 defines "company" as "a company formed and registered under this Ordinance or an existing company." Consequently, according to Mr. Imtiaz Rashid, "Modaraba" under the Ordinance of 1980 can neither be regarded as a company nor a banking company. So far as the first limb of the argument of Mr. Imtiaz Rashid is concerned, no doubt, "Modaraba" cannot be regarded as a company either under the Banking Companies Ordinance, 1962 or the Companies Ordinance, 1984 but it is pertinent to point out that the term "company" has not been defined in the said Ordinance of 1984. N.S. Binder, in his book on Interpretation of Statutes (7th Ed.) at page 317, observes "It is no sound principle of construction to interpret the expressions used in one Act with reference to their use in another 'Act. The meaning of words and expressions used in an Act take their colour from the context in which they appear. To take a word bearing a peculiar meaning in a particular Act and to clothe that word with the same meaning when found in a different context in a different Act is a fallacious process of interpretation." We would like to point out that exception in this regard may only be made in case of statutes in pari material. In such statutes words defined in a statute may have the same meaning in another statute but statutes in pari materia are statutes which are so related as to form a system or code of legislation and when they relate to same persons or things or to the same class of persons or things or have the same purpose or object it is only then that the statutes are called in pari materia (Same Author at page 318). Therefore, when a particular word or expression has not been defined in a statute, resort may be had to its ordinary dictionary meaning. The term "company", according to its ordinary dictionary meaning, means "a society of persons formed in a common interest for the purpose of carrying on some commercial or industrial undertaking."
According to Black's Law Dictionary (6th Ed.), the said term has been defined as "union or association of persons for carrying on a commercial or industrial enterprises, as partnership, corporation, association, joint stock company." A more or less similar meaning has been assigned to the said word in Ballentine's Law Dictionary (3rd Ed.) at page 232.
7. No doubt, the definition of "Modaraba" in section 2(a) of the Ordinance, 1980 indicates that Modaraba only means a business or scheme in which one person participates with his money and other with his efforts or skill or both his efforts and skill and the same does not fall within the definition of the word "company" as defined either in the Banking Companies Ordinance, 1962 or the Companies Ordinance, 1984 but as is indicated by the above Dictionary meanings of the term "company" an establishment to qualify as a company may not conform to the definition of the said term as given in the said Ordinances.
8. Turning to the second limb of the argument of Mr. Imtiaz Rashid, the expression "banking company" has been defined in section 2(a) of the Ordinance of 1984. The definition indicates that the same does not only include a bank as defined in Banks' (Nationalization) Act, 1974 or a company transacting the business of banking in Pakistan but it also includes any other company which may be specified in the Schedule of the Ordinance of 1984. Mr. Imtiaz Rashid has argued that clause (iii) must be read in conjunction with the preamble and the other provisions of the Ordinance of 1984 and the Banking Companies Ordinance, 1962, section 27 whereof even goes to the extent of laying down that "no individual or association or body of individuals, not being a company, shall carry on banking business in Pakistan and, save as hereinafter provided, no company shall carry on banking business in Pakistan unless it holds a licence issued in that behalf by the State Bank, and any such licence may be issued subject to such conditions as the State Bank of Pakistan may think fit to impose." Consequently, according to the learned counsel although, power was conferred on the Federal Government by section 13 of the Ordinance of 1984 to modify the Schedule and to add any entry thereto but such power could be exercised only in consonance with the other relevant provisions of the said Ordinance or any other enaciment imposing restrictions in this regard. No doubt, the learned counsel appears to be right while contending that such power must be exercised in consonance with the other relevant provisions of the same enactment or the provisions of the Banking Companies Ordinance, 1962 but, in our opinion, no such restrictions, as pointed out by the learned counsel, appear to be existing in this regard. The Legislature in its own wisdom has not only enlarged the scope of the definition of "banking company" by inserting clause (iii) in its definition but it has also vested the Federal Government with power to amend or modify the Schedule by adding any entry thereto or omitting any entry therefrom. Since, as has been pointed out earlier, the term "company" appearing in the said definition has not been defined in the said Ordinance, it is difficult to accept the contention put-forth by Mr. Imtiaz Rashid that its meaning is restricted to the definitions found either in the Companies Ordinance, 1962 br the Companies Ordinance, 1984. The object behind the said enactment clearly appears to be to establish a Banking Tribunal and to vest it with powers to try claims filed by a banking company in respect of or arising out of finance. The term "finance", as we have pointed out, appears to be flexible enough to include transactions such as involved in the present case. Therefore, in our opinion, the term "company" not being defined in the said Ordinance can include a "Modaraba" as defined in section 2 of the Ordinance of 1980. Even if Modaraba cannot qualify as a company as defined in the Banking Companies Ordinance or the Companies Ordinance, the Legislature has not imposed any restrictions in regard to its inclusion in the Schedule under the provisions of Ordinance of 1984.
9. It now remains to be considered whether section 25(3) or section 42 of the Act of 1980 by virtue of its non-obstante clause impose any restrictions upon the exercise of such power by the Banking Tribunal constituted under the Ordinance of 1984. Mr. Imtiaz Rashid has argued that the Ordinance of 1980 is a complete code and it has conferred exclusive power on a Tribunal to deal with such claims as in the present case, arising in relation to a Modaraba Fund. It may be pointed out that the expressions "Modaraba" and "Modaraba Company" have been separately defined in the Ordinance of 1980, as was pointed out earlier. The expression "Modaraba Fund" has also been defined in the said Ordinance to mean" as "a fund raised through floatation of Modaraba." Section 12 of the Ordinance of 1980, reference to which was also made earlier in this judgment, further indicates that a Modaraba shall sue and be sued in its own name through the Modaraba Company. Subsection
(2) of the said section further provides that the assets and liabilities of each Modaraba shall be separate and distinct from those of another Modaraba as also from those of the Modaraba Company. The aforesaid provisions, therefore, indicate that "modaraba" is a business in the nature of partnership and "Modaraba Company" is a company which may be engaged in the business of floating and managing Modaraba. A fund which may be raised through floatation of Modaraba has been defined as "Modaraba Fund" by the said Ordinance. Although there appear to be no restrictions on any company floating or managing more than one Modaraba but as is indicated by section 12, each Modaraba would be a separate legal entity which may sue or be sued in its own name although, through the Modaraba Company. Section 25 of the said Ordinance indicates that a Tribunal constituted under the said Ordinance has been vested with jurisdiction to determine a claim filed by a holder of Modaraba Certificates against the Modaraba Company or by a Modaraba Company against any other party with whom it has entered into business transactions relating to Modaraba Fund or in respect of matters relating to winding up of a Modaraba Company but the provisions of section 25 nowhere indicate that further power has been conferred on a Tribunal to try any claim that may be instituted by a Modaraba against any other party, may be the transaction relates to Modaraba Fund. No doubt, subsection (3) of section 25 further indicates that the Tribunal so established shall exercise exclusive jurisdiction in the matters as indicated by subsection (1) thereof by placing restriction upon the exercise of such power by any other Court or Tribunal and subsection (2) of section 26 further indicates that the Tribunal has been vested with jurisdiction to try suits, including suits for recovery of money but since, as has been pointed out earlier, the exclusive jurisdiction vested in the Tribunal only relates to matters specified in subsection (1) of section 25. Although the said subsection indicates that the _ Tribunal has been vested with power to try claims instituted by a Modaraba Company in relation to Modaraba Fund but such claims cannot include claim filed by Modaraba as in the present case, since a Modaraba is a separate legal entity as indicated by section 12 of the Ordinance of 1980, as it can sue and be sued in its own name. The mere fact that a Modaraba can sue or be sued through the Modaraba Company does not lead to an inference that the claims instituted in the present case against the petitioners could have been filed before a Tribunal to be constituted under the Ordinance of 1980. If such was the legislative intent, the same would have been clearly expressed in the said Ordinance.
On the other hand, the Legislature in its own wisdom by enlarging the definition of "banking company" in section 2(a) of the Ordinance of 1984 and vesting the Federal Government with power under section 13 of the said Ordinance clearly intended to confer powers on the Tribunal constituted under such special enactment to try all cases relating to finance between the establishments included in the said Schedule and a customer. We are, consequently, of the view that the Banking Tribunal has jurisdiction to try the suits pending against the petitioners. We, therefore, find no force in these petitions.
10. In the result, the petitions are dismissed. The parties are left to bear their own costs in view of the questions raised. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.