' Petitioner has challenged the validity of orders, dated 19-10-1996, 26-10-1996 and 8-1-1997 passed by Mian Zulfiqar Ahmad learned Civil Judge, Lahore dismissing the application of petition for recall of the order of attachment of House No,377, Block Z, Phase-III, LCCHS, Lahore Cantonment.
2. Brief facts of the case are that respondent No,2 Prime Commercial Bank Limited LCCHS Branch, Lahore instituted a suit under Order XXXVII, Rule 2, C.P.C. Against Musa Nadeem Danial and Emanual Danial respondents Nos.1 and 4 for recovery of US $ 1,30,000. Claim of the plaintiff is that defendant No,1/respondent No,3 herein and defendant No,2 respondent No,4 in this petition are son and father respectively. On 8-7-1996 defendants requested for opening of a foreign currency account with the plaintiff branch acceding to the request of the defendants of joint account in the name of defendants was opened after completion of necessary formalities by the plaintiff-bank and Account No,51111 was allotted to the defendants by deposit of the initial amount of US $ 2200.
On 23-7-1996 defendants deposited in the said joint account a draft No,0004 XSB No,698458, dated 18-7-1996 for $ 1,30,000 in the name of Emmanual Daniel purportedly issued and drawn on Royal Bank of Canada, McKnight Village 5445 Bainbridge Drive N.E. California. Plaintiff-bank sent the draft, dated 18-7-1996 issued by Royal Bank of Canada California for collection to the Bank of America, 1 World Trade Center, New York, USA (corresponding Bank), the reference number of the said Draft for collection sent by the plaintiffs-bank was FBC 406/24/96.
3. On 21-8-1996 the Bank of America, the corresponding Bank of the plaintiff intimated through telex regarding the draft reference No, FBC 406/24/96 that the amount is credited and upon receiving this telex the plaintiff-bank credited $ 1,30,000 in the joint Account No, 51111 of the defendants. On 22-8-1996 defendants have withdrawn $ 1,30,000 through Cheque No,A205879, dated 22-8-1996 from the referred joint account held by the defendants in the plaintiff's branch. On 22-8-1996 plaintiff was informed by corresponding bank through telex that the item draft No,0004 XSB No,698458 is debited. On 26-8-1996 the Bank of America, 1 World Trade Center, New York, USA informed through a detailed telex message that the Royal Bank of Canada California has refused payment for Draft No,0004 XSB No,698458, dated 18-7-1996 for $ 1,30,000 in the name of Emmanuel Daniel by stating that the draft is counterfeit.
4. Defendants defrauded the plaintiff by depositing a counterfoil and bogus draft for the aforesaid amount purportedly issued by Royal Bank of Canada California and on the basis of bogus counterfeit draft had fraudulently withdrawn the aforesaid amount from the joint account maintained in the name of the defendants with the plaintiff. The defendants were requested to pay back the amount encashed by them on the basis of said counterfeit draft but they paid no heed. A criminal case was got registered against the defendants with the F.I.A.
5. Plaintiff instituted the suit for recovery of $ 1,30,000 against son and the father. They were issued notices for many dates but they did not appear. On 19-10-1996 copy of transfer letter of House No,377 Z-Block Phase III, LCCHS was produced by the plaintiff and the Court restrained the defendants from alienation of the house and process-server was directed to serve them through affixation for 21-10-1996. On the date again no one appeared for the defendants. Again summons were issued for 26-10-1996. On this date the process-server reported that the defendant Musa Nadeem is not residing at the given address. The- stay order was extended to 11-11-1996 and again an effort was made for effecting service on the defendants. The bailiff reported that the defendants looked the house and are intentionally avoiding service of summons. Thereafter, they were proceeded against ex parte and the house was attached and the case was fixed for ex parte evidence of the plaintiff for 20-2-1997.
6. At this stage petitioner Muhammad Khalid submitted an application under Order XXXVII, rule 5, 6(2) read with section 151, C.P.C. For recall of the order, dated 19-10-1996 and 24-10-1996 whereby the alienation was stayed and the house was attached. This application was resisted by the plaintiff as well as LCCHS. Learned trial Judge dismissed the application of the petitioner through interim order, dated 8-5-1997 on the ground that the petitioner claims interest in the property on the basis of a mere agreement to sell which does not confer any title on him, hence the present constitutional petition.
7. Respondent L.C.C.H.S. Filed an application (C.M. No,1491 of 1998) to be struck off as respondent No,5. Petitioner also submitted an application (X.M. No,3 of 2000) seeking amendment in the relief clause in the shape of issuance of an allotment order which was prepared by the Society in petitioner's name and was not delivered in spite of payment of all the dues and fees in consequence of the decree. So that the allotment letter in favour of petitioner be delivered.
8. Sardar Muhammad Latif Khan Khosa learned counsel for the petitioner contends that the Civil Court had no jurisdiction to try the suit after promulgation of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The Special Banking Court has the exclusive jurisdiction to try the suit. He next contended that the house under attachment was sold by respondent No,3 in favour of the petitioner through agreement, dated 1-8-1996. Respondents Nos.3 and 4 have no concern with the house, therefore, the same is not liable to be attached. The petitioner has paid the entire amount of Rs,23 lacs and he has obtained a declaratory decree qua the said house in his favour. Respondent No,5 has received all the dues and only formal letter of transfer is to be issued. Petitioner is owner of the house for all practical purposes; therefore, order of attachment is liable to be declared without lawful authority.
9. Mr. Jawad Hassan learned counsel for respondent No,2/plaintiff vehemently opposed the petition as well as prayer for amendment of the writ petition and submits that the Banking Court has no jurisdiction to try a suit between an account holder and the Banking Company. He has relied upon a number of judgments in support of this contention, latest one Atlantic Carpets through Partner v. Messrs Emirates Bank International and another 2000 MLD 1850 (Lahore). He has further argued that respondents Nos.3 and 4 with the connivance of petitioner have created a defence to drive the bank to recover the suit amount. Mere agreement does not confer any title on the petitioner. The orders passed by the learned trial Court are interim in nature and the writ petition is not maintainable against such orders. The trial Court has already decreed the suit of respondent No,2 and only execution proceedings are pending on account of the stay order passed by this Court in respect of attachment on 26-5-1997. The declaratory decree obtained by the petitioner is collusive in which neither respondent No,2 nor L.C.C.H.S. Were impleaded as party. The said decree is of no consequence.
10. Mr. Tariq Masood learned counsel for respondent No,5 has supported the arguments of respondent No,2
11. Respondents Nos.3 and 4 despite notice have not entered appearance, therefore, they are proceeded against ex parte.
12. I have heard the learned counsel for the parties at length and perused the relevant record. The objection of the petitioner that the suit in Banking Court was not maintainable is baseless.
Customer could only file a suit under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 if there was some dispute with the banking company in fulfilling any obligation with regard to any loan or finance. Sections 7(4) and 9(1) of aforesaid Act provide that any dispute with regard to fulfilment of conditions of loan and liability arising out of the contract executed by the bank and the customer can be agitated in Banking Court but in the instant case the defendants availed no financial facility from the plaintiff-bank and was merely an account holder. A criminal case is registered against the defendants for depositing counterfeit draft with the plaintiff, found to be fraudulent and fictitious. Before the receipt of the collection and detailed telex they had fraudulently withdrawn the aforesaid amount. The proposition of law whether the Banking Court or the Civil Court have jurisdiction in such matters was dealt with in detail in the aforesaid judgment and his lordship Mr. Justice Tanvir Ahmad Khan examined various judgments on the point and held that the case of an account holder does not come within the purview of section 7(4) and section 9(1) of the B4nking Companies (Recovery of Loans, Advances, Credits and Finances) Act; 1997. Account holder is not a customer and the suit for recovery against him would not be maintainable before Banking Court in view of law laid down in aforesaid case learned Civil Judge was competent to try the suit and the objection of the petitioner regarding jurisdiction has no merit.
13. The agreement to sell, dated 1-8-1996 relied upon by the petitioner does not create any right or interest or charge on the property. It is settled law that such an agreement does not confer any title on the petitioner qua the property in dispute. The allegation of respondent No,2/plaintiff that it has been fabricated with the connivance of defendants to set up a defence cannot be overlooked. The petitioner obtained a consent decree during pendency of this writ petition. Respondent No,3 and chose to appear in the suit filed by the petitioner but has absented himself throughout in the suit tiled by respondent No,2 against him and his father. This conduct of respondent No,3 indicates that they are hands in glove with the petitioner to defeat the recovery of disputed amount. It is strange that the petitioner in spite of having paid Rs,23 lacs to respondent No,3 did not check the record of respondent No,5 wherein the suit house already stands attached and an intimation is recorded in its record. Petitioner would not have made the entire payment without ascertaining about clearance of title of respondents No,3. He appears to be a partner of respondents Nos.3 and 4. The alleged agreement is not registered document. On the basis of mere agreement petitioner cannot frustrate the decree passed against respondents Nos.3 and 4 by the trial Court during the pendency of this writ petition as the proceedings were not stayed and the stay was with respect to order of attachment only. No copy of check or pay order has been placed on the record to show that an amount of Rs,23 lacs was paid by the petitioner to respondent No,3 on 26-10-1996. The receipt itself is not an authentic document to be believed. Such a huge amount in normal course of business is to be paid in the office of the Secretary, L.C.C.H.S. At the time of its transfer. The cumulative effect of the circumstances of this case is that the petitioner has joined hands with respondents Nos.3 and 4 to frustrate the claim of respondent No,2. This is merely a device to set up defence to avoid attachment and auction of the property. The claim of the petitioner is not based on any valid ground, therefore, this petition has no force. The impugned orders are perfectly in accordance with law.
14. Learned trial. Judge passed interim orders of ex parte proceedings against respondents Nos.3 and 4 then attached the property and dismissed the application of petitioner for recalling the order of attachment. These are interim orders and are not questionable in writ jurisdiction as laid down in Muhammad Saeed v. Mst. Sarat-ul-Fatima and another (PLD 1978 Lahore 1459) and Messrs Silver Stone (Pvt.) Limited v. Rent Controller and others (1995 MLD 851).
15. Petitioner has sought permission to amend the writ petition for issuance of a direction to respondent No,5 for delivery of transfer letter to him. Since I have not been persuaded about the genuineness of the transaction on the basis of the agreement, dated 1-8-1996 and petition against interim order is not competent, the permission for amendment is declined.
16. For what has been discussed above, I am clearly of the view that respondent No,1 was competent to try the suit. The alleged sale agreement, dated 1-8-1996 does not create any right or interest in favour of the petitioner qua the suit property. The petition has no merit and is dismissed with costs.