' In this suit for declaration, permanent injunction and recovery of possession of shares of Putlam Cement Company incorporated in Sri Lanka, defendant No,1 seeks the rejection of the plaint on the grounds: firstly, that no cause of action has accrued to the plaintiffs against the said defendant and secondly, that the suit is barred under the provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereinafter called the Ordinance).
2. Plaintiff is a private limited company engaged in assembling, production and sale of Kia Motor Cars of South Korean Company. On or about 7-7-1994 and 23-1-1995 the plaintiff at the request of defendant No,8 granted to the defendants Nos.5, 6 and 7 short term advances as under:--- {{TABLE}}
(i) Moon River International (Pvt.) Limited. Rs,160 million.
( I i) Taha International Export Corporation (Pvt.) Ltd. Rs,90 million
(iii) Tawakkal Textile (Pvt.) Ltd. Rs,90 million {{TABLE}}
3. It is the case of the plaintiff that defendant No,8 stood guarantee for repayment of the dues by defendants Nos.5, 6 and 7 and confirmed its agreement of guarantee-cum-pledge with the plaintiff its 32.5 million shares held by it in Putlam Cement Company. In the last week of August, 1996 plaintiff sent these shares to the defendant No,8 for the purpose of verification and preparation of transfer deeds. It is alleged that while these shares were lying there defendant No,2 wrongly seized the shares although these were not involved in any crime. It is said that' the seizure of the above shares was effected after the arrest of defendants Nos.3 and 4 by defendant No,2.
4. In the course of inquiries, plaintiff came to know that defendant No,1 filed an application before the Special Court (Offences in Banks) for Sindh at Karachi in Case No,30 of 1996; State v. Abdul Qadir Tawwakal and others stating that defendants Nos.3 and 4 had allegedly appointed defendant No,1 as agent to sell the said shares for payment of dues of Habib Bank Limited, National Bank of Pakistan, United Bank Limited and Muslim Commercial Bank Limited. The Special Court by its order dated 25-9-1996 directed the release of shares to the defendant No,1 by defendant No,2 with a direction that defendant No,1 shall keep the Special' Court indemnified to the extent of any claim, damage, loss or compensation in the sum of Rs,32,50,00,000 due to any + misstatement or concealment of facts. On the application of defendant No,1 Special Court modified the earlier order amending the condition for furnishing of-indemnity in the sum equivalent to the sale proceeds of the shares by its order dated 10-11-1996. Disputing the validity and authenticity of the alleged agreement dated 25-8-1996 purportedly executed by defendants Nos.3 and 4 in favour of defendant No,1 on a number, of grounds plaintiff has agitated that the Special Court had no jurisdiction over the matter of shares as these were not involved in any crime and that the orders in favour of defendant No,1 without notice to the plaintiff and defendant No,8 are bad in law and without jurisdiction. Accordingly plaintiff pleaded that defendant No,1 having taken the delivery of shares from defendant No,2 is in illegal possession of the shares which were pledged with the plaintiff for repayment of their dues outstanding against defendants Nos.5, 6 and 7. The cause of action according to the plaintiff arose when the shares were wrongfully seized by defendant No,2 and on 25-9-1996 when the Special Court passed an order for handing over the shares to defendant No,1 which order was subsequently amended by order dated 10-11-1996:Prayer clause in the plaint reads as under:---
(i) a declaration that the plaintiff is pledge of 32.5 million shares of Putlam Cement Company, a Sri Lankan Company; (ii)' an order directing the defendant No,1 to hand over the shares to the plaintiff;
(iii) an order declaring that the agreement dated 25-8-1996 allegedly executed by the defendants Nos.3 and 4 appointing the defendant No,1 as agent of the defendant No,8 is bad in law,, illegal, void and has no effect and cannot derogate upon the rights and interests of the plaintiff as pledgee of the shares;
(iv) a permanent injunction restraining the defendants, their representatives, employees, officers from dealing with the said shares in any manner whatsoever contrary to the interest of the plaintiff as pledgee or otherwise.
5. Learned counsel for defendant No,1 agitated at the Bar that the F.I.A., had recovered these shares from Muhammad Lakhani, Manager of M/s. Hamraz Industries Limited a subsidiary of Tawakkal Group of Companies issued in the name of Tawakkal Limited alongwith the original transfer of shares and photo copies of agreement, dated 25th August, 1996 between Tawakkal Limited and Pakistan Banking Council together with text of resolution of Board of Directors in connection with investigation of crime registered vide F.I.R. No,15 of 1996 dated 27-8-1996. Learned counsel referred 'to section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 providing for a right of appeal to the High Court from a sentence passed by a Special Court and laying down that notwithstanding the provisions of the Criminal Procedure Code or of any other law for the time being in force, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Criminal Procedure Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court. Learned counsel contended with all emphasis at his command that this provision contained in the special law providing for the jurisdiction of Special Court constituted under the special law by implication and intendment takes away the jurisdiction of a Court of,plenary jurisdiction. In order to reinforce his contention, learned counsel referred to Zahoor Illahi v. The State PLD 1977 SC 273 (308) and Allied Bank of Pakistan Limited v. Khalid Farooq 1991 SCM R 599 (617).
6. In Zahoor Illahi's case it was held that there is no cavil against the proposition that the jurisdiction of the superior Courts cannot be taken away except by express words or necessary implication. A distinct and unequivocal enactment is also required for the purpose of either adding to or taking from the jurisdiction of a superior Court of law. In the reported case Supreme Court was dealing with the power of High Court to grant bail in a case registered under Rule 42(6)(e) read with Rule 49 of the Defence of Pakistan Rules, 1971 in which the Special Tribunal had taken cognizance of the case. In the context of the words used in section 15(1)(b) of the Defence of Pakistan Rules to the effect that "notwithstanding the provisions of the Code, or of any law for the time being in force., or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under section 491 of the Criminal Procedure Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal". Supreme Court held that the plain and unequivocal words used in these clauses of section 13(1)(b) make the intention of the law-giver manifest that no Court including a High Court shall under the Code or any other law, call in question or interfere with the proceedings of a Special Tribunal. Supreme Court further laid down that the word "proceedings" includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal including the matter relating to grant of bail.
7. There is hardly any scope of cavil with the proposition of law laid down in the judgment that no Court other than the Special Tribunal constituted under the special law shall exercise jurisdiction in respect of any proceedings of a Special Tribunal, the fact remains that in the present suit plaintiff has neither challenged the trial of the accused by the Special Court nor any order passed in relation to handing over the share certificates or an order ancillary or incidental to the trial of the accused persons. It is true that the plaintiff has in the plaint agitated the validity and propriety of the order passed by the Special Court in relation to delivery of shares to defendant No,1, no specific remedy has been sought from this Court thereby seeking to undo and set aside the order passed by the Special Court. Essentially the plaintiff is trying to establish its right to the shares of a company incorporated in Sri Lanka and registered in the name of Tawakkal Limited on the grounds stated in the plaint. While the bar in the reported case is specific and unequivocal, and the language of section 10 of the Ordinance, 1984, no doubt bars the jurisdictions of a Criminal Court to deal with the trial of a scheduled offence exclusively triable by the Special Court it does not apparently oust the jurisdiction of a Civil Court of ultimate and unlimited jurisdiction to determine the title and ownership in respect of shares of a public limited company in the exercise of its general jurisdiction. Learned counsel is of the view that since the plaintiff is aggrieved by the orders passed by Special Court proper course for it was to approach the Special Court for setting aside the said order or to invoke the revisional jurisdiction of the High Court. Be that as it may, the frame of the suit and the averments as contained in the plaint do not make out a case of ouster of jurisdiction by implication of law or intendment. In order to constitute a bar of jurisdiction by intendment, to my mind such intendment must be strong enough to divest a Court of ultimate jurisdiction of its jurisdiction to determine an issue before it. Needless to emphasise Special Court possessing criminal jurisdiction may not be in a position to decide intricate questions of ownership, title and pledge of shares of a limited company with another company in the strict sense of the term. Even otherwise Ordinance, 1984 does not lay down a specific provision for revision of orders passed by the Court and it may provide a right of appeal from sentences passed by the said Court.
It is only by virtue of Article 203 of the Constitution that the learned counsel urged that the plaintiff ought to avail of the remedy by way of revision of the orders passed by the Special Court before the High Court by reason of the case-law. Suffice to say the orders referred to above are not appealable whereas the remedy by way of revision application is always discretionary with the Court and its scope is too limited to admit of, an alternate and efficacious remedy before a Court of revision from an incidental order. At any rate, availability of remedy by way of revision application does not in my view bar the maintainability of a suit for declaration and permanent injunction.
8. In Allied Bank's case Honourable Supreme Court observed that with regard to the question of ouster of power, it is recognized principle of law that a claim in respect of the ouster of power of the High Court in respect of any matter or subject available to it under the Code of Civil or Criminal Procedure cannot be lightly accepted, unless there is a clear, definite and positive provision ousting the jurisdiction. Express words or clear intendment or necessary implication are required to take away the jurisdiction of High Court or any superior Court. In this case as well Supreme Court was dealing with appeals arising out of orders allowing bail to an accused by the High Court and an appeal from the order rejecting an application for suspension of sentence and release on bail. It is true that the jurisdiction of the Special Court,in such cases is exclusive but Supreme Court did not lay down the rule that in matters relating to proprietary rights over property jurisdiction of a Civil Court of competent jurisdiction is ousted by implication.
9. On his part Mr. Mansoorul Arfm, learned counsel for the plaintiff submitted that it is only a Civil Court which can determine the entitlement to a property seized by Investigating Agencies on suspicion of its being stolen. In this connection he relied upon Secretary of State v. Lown Karan AIR 1920 Patna 182 and Wasappa Timappa Sonagar v. Secretary of State AIR 1915 Bombay 227 which prima facie support his view.
10. Distinguishing the suit in hand from the bar of exclusive jurisdiction conferred on a Special Court under the Ordinance, learned counsel referred to a Full Bench judgment of the Calcutta High Court reported as Kishnamoni Dasi v. Baser Mondal AIR 1963 Calcutta 225 in which the Court laid down the following tests of fundamental principles for deciding where the question of exclusive jurisdiction of a tribunal is raised:---
(1) The general law of the country is not altered by special legislation made without particular reference to it, though a statute passed for a particular purpose must, so far as that purpose extends, override general enactments.
(2) If there is a manifest absence of jurisdiction in the tribunal which makes a detemination the Civil Courts will have jurisdiction to adjudicate upon the matter.
(3) It is for the Courts of general civil jurisdiction to determine what is the scope of the authority given to, a statutory tribunal and to investigate the question as to, whether a special or subordinate tribunal has acted within the limits of its jurisdiction.
'(4) Even where jurisdiction is given to the Statutory Tribunal to determine certain facts so as to give itself jurisdiction, it will be for the Court of general jurisdiction to adjudicate as to what are the powers which the statute has given to such an authority or tribunal.
(5) No tribunal of special jurisdiction can finally decide upon its own jurisdiction or give itself jurisdiction by a wrong decision on a matter collateral to the merits of the case upon which the limits of its jurisdiction depend.
(6) No tribunal of inferior jurisdiction can establish its jurisdiction by proceeding on an assumed fact, which is not a fact.
(7) A statutory tribunal must act within the scope of its power given to it or limited by the statute.
(8) If the tribunal acts within the scope of its powers and commits an error the Civil Courts cannot correct it i,e,, its orders, whether right or wrong cannot be challenged except in a manner and to the extent prescribed by the statute.
(9) The special tribunal might be invested by the Legislature with exclusive jurisdiction to determine within its own authority certain matter and where it is so invested, the jurisdiction of the Civil Court must be deemed to have been taken away to that extent.
(10) A statute conferring jurisdiction under certain particular conditions, cannot be taken to confer jurisdiction also in cases which do not fall within the ambit of the conditions laid down, merely on the basis of analogy.
(11) The confiscatory rights of a special tribunal whose adjudication was declared to be conclusive, could not have immunity from the Civil Courts_and at the same time disregard the provisions of the Act under which the tribunal was formed. In other words, the jurisdiction of the tribunal is statutory and the tribunal, however, admirable in its intention is not entitled to go outside the provisions and in any effect to legislate for itself.
11. It is well-settled proposition of law that a plaint can only be rejected when the facts stated and pleaded in a plaint tend to show to the satisfaction of the Court that the relief claimed is barred by law or it does not disclose a cause of action. For deciding the fate of a suit before reaching the stage of trial, it is of utmost importance to keep in mind that the contents of a plaint are deemed to be correct and accepted on its face value. To determine the question whether a suit is barred by law or the plaint does not disclose a cause of action, a Court cannot lawfully take into consideration the defence pleas raised on behalf of the defendants. Apart from the averments made in the plaint, a Court is entitled to take into consideration the facts which are admitted by the plaintiff and the documents admitted by him. Indeed every fact disclosed in the plaint has to be assumed as true' notwithstanding the defence taken by other side.
12. There is no gainsaying that the Civil Court is a Court of general jurisdiction which is invested with unlimited jurisdiction to decide all disputes of civil nature unless the jurisdiction is barred expressly or by intendment. Strictly speaking a Civil Court shall not lean in favour of ouster of jurisdiction unless the same is taken away by express and unequivocal legislation. In my view bar of jurisdiction by implication of law should also be strong and not admitting of another view. In the present case plaintiffs are claiming their right, ownership and title to the shares pledged with them by defendants Nos.5, 6 and 7 which is a dispute of civil nature. Notwithstanding the claim by defendant No,1 to these shares, the question of ownership and title, to my mind can only be decided by a Court of plenary jurisdiction and not by a Court of criminal jurisdiction enquiring into offences relating to affairs of a Bank. It is true that Special Court has passed an interim order directing handing over of the shares of Tawakkal Limited in favour of defendant No,1 subject to furnishing of an indemnity bond, the order by itself being interim in nature does not divest this Court of its jurisdiction to entertain the plaintiff's claim by any stretch of reasoning. It is to be determined at the trial whether these shares form the subject-matter of the trial against the accused persons before the Special Court. Whether these shares were agreed to be handed over to defendant No,1 as guarantee for repayment of loan by defendant No,8 would also arise for decision at the trial which cannot be summarily disposed of at this preliminary stage of the suit.
Needless to reiterate Special Court may not be in a position to lawfully determine the question of ownership and title to these shares in the exercise of its limited criminal jurisdiction to decide whether the accused persons committed criminal breach of trust.
13. On the facts stated in the plaint, it cannot be safely said that the plaint does not disclose a cause of action as agitated on behalf of defendant No,
1. As observed hereinabove, averments made in a plaint are deemed to be correct and true and there being no dispute with this proposition of law, it is highly difficult to subscribe to the view of the learned counsel for defendant No,1 that the plaint on the face of it does not disclose a cause of action or that the grievance of the plaintiff if any, falls within the exclusive domain of the Special Court constituted under the Ordinance.
14. No other argument was urged id support of this C.M.A., which is without any merit and must fail.
It is accordingly dismissed.