ANWAR ZAHEER JAMALI, J.-- By this order I propose to dispose of C.M.A. No. 7522/1999 which is an application under Order VII, Rule 11, C.P.C. Moved on behalf of defendant, seeking rejection of plaint on the ground that the suit is barred under the provisions of Act XV of 1997 as it does not relate to loan or finance.
2. Mr. Mansoorul Arfin, learned counsel for defendant, in his exhaustive arguments referred to the definitions of "borrower", "customer", "finance" and "loan" as defined in Section 2(c)(d)(e) and (f) respectively of Act. XV of 1997 and definitions of "financial institutions", "customer", "finance" and "obligation" as defined under Section 2(a)(c)(d) and (e) respectively of the Ordinance XLVI of 2001 as well as Section 9 of both the statutes viz. Act XV of 1997 and Ordinance XLVI of 2001, and contended that a careful reading of all these definitions and provisions of law with reference to the facts of present suit, as disclosed in the plaint, would show that it is not case where either the borrower/customer or the Banking Company/financial institution has committed a default in fulfilling any obligation with regard to any loan or finance as provided under Section 9 of the Act XV of 1997 or have committed a default in fulfilment of any obligation with regard to any finance as provided under Section 9(1) of the Ordinance XLVI of 2001, which is the basic requirement for assumption of jurisdiction by a Banking Court, therefore, the present suit instituted under the banking jurisdiction of this Court is not maintainable. He further contended that at best case of the plaintiff is that they are Foreign Currency Account holder of defendant Bank and with reference to such account there was some dispute with the defendant in encashment or transfer of some cash at their request resulting in alleged loss to them to which the present suit has been instituted.
These facts do not give jurisdiction to a Banking Court to entertain such suit. To a every made by Court Mr. Arfin, however, candidly conceded that even if the pleas raised by defendant are sustained then plaint in the suit cannot be rejected but it will be returned to the plaintiff for presentation before the Court having jurisdiction in the matter. He, therefore, urged that plaint in the suit was liable to be returned. In support of his arguments learned counsel placed reliance on the following cases:-{{TABLE}} 2000 M.L.D. 1850; 1998 C.L.C. 1781; 2000 YLR 2407; 1999 CLC 1294; 2001 YLR 905.
3. In reply to the above contentions, at the outset, Mr. Rasheed A. Razvi referred the order dated 11.11.1998 passed in the present suit and contended that on the basis of pleas of maintainability and jurisdiction raised by the defendant in their written statement already an issue in that regard has been framed by this Court and at that time request of learned counsel for the defendant to decide such issue as a preliminary issue was declined by this Court. In such circumstances if the question of jurisdiction is again taken up by this Court for examination on the basis of listed application under Order VII, Rule 11, C.P.C. It will amount to review of earlier order passed by this Court, which is specifically barred under Section 27 of the Ordinance of 2001. Mr. Rasheed A. Ravi again referred to various definitions given under the Act XV of 1997 and the Ordinance XLVI of 2001 and -contended that present suit instituted by the plaintiff is result of breach of obligation committed by the defendant Bank, the relationship between plaintiff and defendant is that of "customer" and "financial", "institution" and in such circumstances present suit hai been competently' instituted before the Banking Court. Dilating upon the meaning of word "accommodation" used in the definition of "finance" under Section 2(d)(i) of the Ordinance of 2001, learned counsel referred to its meaning given in Black's Law Dictionary (Vth Edition) and contended that it further clarifies the position that in, the given, circumstances remedy available to the plaintiff is before the Banking Court. Mr. Ravi also contended that by virtue of sub-sections (6) and (7) of Section 7 of the Ordinance of 2001, all further proceedings in the present suit will be governed by the said Ordinance of 2001, wherein definition of "finance" is more wider than the one given in the Act of 1997. He. Further contended that while interpreting any particular section of an Act or Ordinance the object, intention and purpose of such statute cannot be ignored, therefore, the Court will lien in favour of exercise of jurisdiction by the Banking Court in all, such cases which relate to finance or to the question of breach of obligation or default in fulfilment thereof. Mr. Rasheed Razvi further referred to a Tripartite Agreement dated 10.4.1995 between M/s. Union Bank of Switzerland, plaintiff and defendant which has been filed by 'the plaintiff as Annexure P/7 to their counter- affidavit to defendant's application under Section 10 of the Act of 1997, and contended that by this agreement, which has not been denied or disputed by the defendant, it is fully established that various transactions between the parties were not that of simple operation of foreign currency account but same were relating to obligations arising out of the said agreement. Learned counsel, however, did not dispute that in the plaint neither there is any reference of agreement dated 10.4.1995 nor as per averment of the plaint present suit is based on this document. To a query that whether in such circumstance agreement dated 10.4.1995 can be looked into and taken into consideration while deciding an application under Order VII, Rule 11, C.P.C., he answered in the affirmative and to fortify his stand placed reliance on the following cases:--
(i) 1992 M.L.D. 225;
(ii) 1994 S.C.M.R. 826; '(i.e) 1993 M.L.D. 2419;
(iv) 2000 C.L.C. 1620;
(v) 2002 S.C.M.R. 338.
4. In support of his other submissions learned counsel also placed reliance on the following cases:- -
(1) P.L.D. 2000 Lah. 168;
(2) P.L.D. 1970 Supreme Court
(3) 1992 S.C.M.R. 1748;
(4) 2001 C.L.C. 1363;
(5) 2001 S.C.M.R. 103;
(6) 1998 C.L.C. 1718;
(7) 1999 C.L.C. 1953; -
(8) 2002 C.L.C. 658;
(9) 2000 C.L.C. 1455.
5, In reply to the above, Mr, Mansoorul, Arlin contended that whenever question of jurisdiction is raised before a Court it is its duty to decide it in the first instance. He further contended that the scope of decision of preliminary issue and decision of an application under Order VII, Rule 11, C.P.C.
Is different therefore observations of this Court contained in its order dated. 11.11.1998 that the issue as to jurisdiction framed in the suit will not be decided in piecemeal but after recording of evidence will have no bearing on the maintainability or merits of application under Order Vil, Rule. 11, C.P.C.
Moved by the defendant. He urged that passing of any order on the listed application would not, therefore, amount to review of order dated 11.11.1998. Analyzing this aspect from various other angles, learned counsel placed reliance on the following cases:-
(a) A.I.R. 1933 All. 762.
(b) 1990 M.L.D. 1764,
(c) 1973 S.C,M.R. 62;
(d) P.L.D. 1995 S.C. 362;
(e) 1999 S.C.M.R. 2353;
(f) 2001 C.L.C. 1363.
6. Referring to the Dictionary meaning of word "accommodation" learned counsel contended that in Black's Law Dictionary (Vllth Edition) word "accommodation" has been defined as "an obligation relating to the loan". This definition is different from the one given in the Vth Edition therefore the interpretation advanced by plaintiff side with reference to the meaning of word "accommodation" in the Vth Edition of Black's Law Dictionary is of no help to their case. As regards the agreement dated 10.4.1995 (Annexure P/7) Mr. Arfin did not seriously dispute its genuineness or its consideration at .The stage of deciding the listed application but referring to its various clauses he urged that even by virtue of this document no such obligation was created or alleged breach of obligation was committed which could help plaintiff in bringing their suit within the jurisdiction of Banking Court.
7. I have heard learned counsel for the parties, carefully perused the case record and also gone through the case-law referred at the bar.
8. As noted above Mr. Mansoorul Arfin has frankly conceded that even if all the contentions raised by him are accepted then no case for rejection of plaint in the suit will be made out. This brings the controversy to a narrow compass i.e. Whether the plaint in the suit is liable to be returned for presentation before the Court having jurisdiction in the matter or in case this suit cannot be tried under the Banking jurisdiction of this Court then a direction can be issued to the office for treating the same as an ordinary suit on its original civil jurisdiction so that further proceedings in the suit are regulated accordingly.
9. Before examining the crucial point as to the jurisdiction of Banking Court involved in the matter it will be appropriate to first deal with the other contentions one by one. The first contention of Mr. Rasheed A. Razvi raised with reference to the earlier framing of issue of jurisdiction has no force for the reason that framing of an issue as to the maintainability or jurisdiction will not denude the Court of its powers to entertain and decide an application under Order 7, Rule 11 or Rule 10, C.P.C.
Within the parameters defined by law for this purpose. The case-law referred by Mr. Mansoorul Arfin in this context at serial Nos. (a) to (f) above further elucidates this position. Similarly the other contention of learned counsel for the plaintiff that since the- request of learned counsel for defendant to decide the issue of jurisdiction as preliminary issue was declined by the Court vide its order .Dated 11.11.1998, therefore, under the garb of application under Order 7, Rule 11 or 10 C.P.C. Such issue cannot be re-opened separately at this stage, has also no force as any order on such applications would not in any manner amount to review of order dated 11.11.1998. However, the contention of Mr. Razvi with reference to the consideration of document Ex.P/7 (tripartite agreement dated 10.4.1995) at the time of deciding the listed application has force inasmuch as not only this document has not been disputed or denied by the defendant but they themselves have made reference in this regard in para 9 of their written statement. This legal position is fully supported by the case-law referred by Mr. Razvi in this context, which is noted at serial Nos. (i) to
(v) above.
10. Reverting. To the question of jurisdiction, it will be apt that in order to comprehend properly the contentions raised by the learned counsel in this regard in the fast instance the relevant definitions and provisions of laws referred by them from the Act XV of 1997 (now repealed) and the Ordinance.XLVI of 2001 (now in force) are read carefully.
1. Perusal of definitions and relevant provisions of Act XV of 1997 is necessary to see whether at the time of institution of the suit viz. 18.2.1998 the suit was rightly instituted before the Banking Court so that by implication of sub-rules (6) and .(7) of Section 7, same could now be proceeded further under the Ordinance of 2001. Similarly perusal of relevant definitions and provisions of Ordinance XLVI of 2001 is necessary to see whether at present the Banking Court has jurisdiction to entertain and proceed with the suit under the said Ordinance or not.
12. A plain reading of Section 9 of the Act of 1997, indicates that at the time of institution of suit the Banking Court was competent to assume jurisdiction only in the matters where a "borrower" or a "customer" of a Banking Company commits a default in fulfilling any obligation with regard to any loan or finance in which situation the banking company or the borrower or customer as the case may be could institute the suit before the Banking Court. Similarly under Section 9 of the Ordinance of 2001 the Banking Court could assume jurisdiction only in a situation where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance in which situation the financial institution or the customer as the case may be, may institute suit in the Banking Court. Faced with this clear and unambiguous legal position it can be safely concluded that in order to assume and exercise jurisdiction in the present case this Court has to find answer of following questions in the affirmative:
(a) Whether the plaintiff is a borrower or customer within the meaning of Section 9 of Act XV of 1997 or Ordinance XLVI of 2001 as against the defendant which is admittedly a banking company/financial institution;
(b) Whether the dispute involved in the suit relates to commission of default in fulfilment of any obligation with regard to any loan or finance as specified under Section 9 of the Act XV of 1997 or Ordinance XLVI of 2001.
13. To get a correct answer of first question when the definitions of words "borrower" and "customer" are carefully perused then it becomes crystal clear that on the basis of averments of the plaint or even tripartite agreement and other admitted or undisputed documents available on case record plaintiff have failed to establish their status as a "borrower" or "customer" as defined by law. When the facts of the present case are examined from this angle I find that in substance case of the plaintiff is that they have been maintaining a Foreign Currency Account with the defendant bank and relating to that Foreign Currency Account during the course of one transaction regarding purchase of gold bars in Switzerland when the issued instructions to the defendant for remitting its purchase price to its supplier through Union Bank of Switzerland such directions were not duly complied in time. However, later on said sum alongwith interest accrued thereon was paid by the defendant on 24.4.1997. Thereafter again instructions of plaintiff contained in their letter dated 30.4.1997 regarding remittance of US$ 5 million each to Mr. Muhammad Iqbal do main branch Dubai Account No. 02-062-0820-2 and Muhammad Iqbal and Farida Umer c/o Habib Bank Zurich Account No. 118204 Dubai were not honoured and without any lawful justification the balance amount available in their Foreign Currency Account maintained with defendant bank was withheld.
These facts do not determine the status of plaintiff as "borrower" or "customer" but only of a foreign currency accounts holder. The result is that answer to the first question is in the negative.
14. In order to find a correct answer of next question I have carefully examined the contentions raised by the learned counsel in this regard, as noted above, and seen that from any angle the present suit instituted by the plaintiff is not the one in respect of some default in fulfilment of any obligation with regard to any loan or finance. The dispute agitated by them plaintiff is only in respect of operation of their Foreign Currency Account at the defendant bank, non-following of their instructions by them in the regard and withholding of the balance sum available in their Account. Such dispute cannot be considered as a dispute relating to some default in fulfilment of any obligation with regard to any loan or finance. Reference made by Mr. Razvi to the Dictionary meaning of words "accommodation" and "obligation" from different editions of Black's Law Dictionary also does not improve the case of plaintiff for this purpose.
15. The plethora of case-law referred by both the learned counsel on the point of jurisdiction of Banking Court also postulates and amplifies similar legal position. The not result of what has been discussed above is that answer of other question is also in the negative.
16. In view of the above discussion I have no hesitation to hold that neither at the time of institution nor at this stage the present suit instituted by plaintiff M/s. ARY Traders (Pvt.)
Limited can be proceeded under the banking jurisdiction of this Court.
17. For the foregoing reasons it is ordered that the office shall not treat this suit as a banking suit under Act XV of 1997 or Ordinance XLVI of 2001 but looking to its valuation this suit be treated as a suit on the original civil jurisdiction of this Court and be proce.Eded and fixed accordingly as per roster.