ORDER ORDER (C.M. No. 764-B/2002)
MUHAMMAD SAIR ALI, Through this application, judgment-debtors except judgment-debtors Nos. 8 and 10 seek transfer of record of this case to the learned Banking Court at Faisalabad under Section 7(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, on the ground that the present execution petition seeks enforcement of a decree for Rs. 4,36,06,891/-. And that pecuniary jurisdiction for proceeding with the present execution petition vests in the learned Banking Court constituted under Section 5 of the Ordinance of 2001, as the subject-matter thereof is less than Rs. 50 million.
2. Mr. Muhammad Razzaq, Assistant Vice- President/Incharge Recovery Litigation has appeared on behalf of the decree-holder (Habib Bank Limited) and conceded the application filed by the above-said judgment-debtors and joins the said applicants for transfer of the case to learned Banking Court, Faisalabad.
3. Contesting reply has, however, been filed by judgment-debtors Nos. 8 and 10 and their learned counsel states that this case cannot be transferred to the Banking Court for the reasons that:--
(I) The original suit was filed before the Banking Tribunaf as per the then Banking Tribunals Ordinance, 1984 for a sum of Rs. 5,90,33,016.90, which claim, though reduced in decree dated 25.1.1996 to Rs. 4,36,06,891/-, shall be determinative of the pecuniary jurisdiction of this Court in accordance with definition of Banking Court in Section 2(b)(i) of Financial Institutions (Recovery of Finances) Ordinance, 2001.
Further that it is the claim of the case according to which the pecuniary slab has to be decided for entertainment of the case by the Banking Court in the High Court or otherwise by the learned Banking Court established under Section 5 ibid.
(ii) The decree in the suit was subsequently amended in R.F.A. No. 264/1996 by order dated 18.3.1999 passed by a learned Division Bench of this Court, allowing judgment and decree dated 25.1.1996 to be modified in terms of compromise dated 18.3.1999 (as incorporated in C.M. No. 1- C/1999 under Order XXIII, Rule 3, CPC)'and clause (v) of the said agreement/application, apportioned only 40% of., sale proceeds of mortgaged properties for satisfaction of the amended decree in favour of the decree-holder and thus the said 40% Is only equivalent to a sum of Rs. 4,36,06,891/- and the balance 60% (40% for IDBP and 20% for judgment- debtor No. 1) is also deemed to have been incorporated in amended decree and claim of IDBP (40%) as incorporated in IDBP's suit, was above 9 Crores. And as such, *the [Vol.XXI! H.B.L. V. Rehmania Textile Mills Tax fit Corp. 145 . (Muhammad Sair Ali, J.) total claim in the amended decree is to be considered to be the decretal amount plus IDBP's claim.
The case thus falls within the pecuniary jurisdiction of this Court to try; and (i.e) Reference was also made to Section 19 ibid to reinforce the argument that it is the claim in the suit which determines the jurisdiction as under the said Section, the suit is to be converted into execution proceedings.
4. I have considered the submissions of the learned counsel for the parties and have also examined the record. As per order dated 20.11.2002, record of R.F.A. No. 264/1996, decided on 18.3.1999 alongwith record of the original suit filed before the learned Banking Tribunal was also directed to be attached with the present case. The said record has also been examined. There is no d^ubt |hat decree-holder i. e. Habib Bank Limited filed a suit # ]3ffuary, 1994 under the repealed Banking Tribunal.Ordinance, 1984 before the then Banking Tribunal, Faisalabad for recovery of Rs. 59,033,016.90/- inclusive of mark-up and liquidated damages as of 31.10.1993. The suit was decreed by the then learned Chairman, Banking Tribunal No. 1, Faisalabad by judgment and decree dated 25.1.1996 for a sum of Rs. 4,36,06,891/- inclusive of initial mark-up but excluding Bank's claim for liquidated damages, excessive mark-up and other amounts. Para 11 of the judgment dated 25.1.1996 being relevant is reproduced hereunder;- "In-view of what has been discussed above, the suit of the plaintiff bank is hereby decreed to the extent of Rs. 4,36,06,891/- including initial mark-up after excluding Rs. 98,38,836/15 being liquidated damages and Rs. 17,37,872/-and Rs. 29,03,352/- . Excessive Mark-up * and Rs. 2,01,662/- and Rs.
5,94,953/- the amount of Excise Duty and Rs. 71,837/- Brokerage charges and Rs. 10,613/- Miscellaneous expenses and Rs. 67,000/- being Godown Keeper charges included in the suit amount, in favour of the bank as against the defendants Nos. 1 to 31 jointly and severally with cost."
5. Three appeal were filed against the above-said judgment and decree. Two appeals were filed by the judgment-debtors against the decree. One appeal was filed by the decree-holder Bank against the above-said reduction of claim of the decree-holder Bank by the learned Banking Tribunal. However, in appeals, on 18.3.1999, a joint application was filed by the decree-holder and judgment- debtors Nos. 1 and others under Order XXIII, Rule 3, CPC for recording the compromise between the parties and for modification of judgment and decree dated 25.1.1996 in terms of the compromise (incorporated in the said application). By judgment dated 18.3.1999 recorded in R.F.A.
No. 264/1996, an Hon'ble Division Bench of this Court accepted the appeal in terms of application under Order XXIII, Rule 3, CPC-and modified the terms of decree dated 25.1.1996 in terms of compromise between the parties. Decree dated 25.1.1996 thus stood modified as per judgment and decree dated 18.3.1999. This decree was further sought to be modified through a joint application i.e. C.M. No. 423-B/1999 made in C.M. No. 115-B/1999 in Execution Petition No. 5-B/1997. .
6. It is note-worthy that in the meanwhile decree- holder Bank had filed the present Execution Petition No. 5- B/1997. The joint application only related to modification of the shares of sale proceeds between the decree-holder Bank (30%), IDBP (50%) and judgment-debtor company (20%). This petition was allowed subject to all just exceptions by this Court through order dated 20.9.1999.
7. As referred to above, Execution Petition No. 5- B/1997 was filed by the decree-holder for enforcement of modified judgment and decree dated 18.3.1999 and the same was being proceeded with by this Court under Banking [VoI.XXIl H.B.L V. Rehmania Textile Mills Tax fil Corp. 147 (Muhammad SairAli, J.)
Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The said Act was, however, repealed and new Ordinance i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001. Accordingly, the proceedings in the above-said execution petition were being taken under the above-said Ordinance of 2001 by this Court.
8. Reverting back to the question of claim in the execution petition, reference is made to the terms of amended . Decree dated 18.3.1999, as per compromise incorporated in the.Application under Order XXIII, Rule 3, CPC made in Civil Appeal i.e. R.F.A. No. 264/1996. Clauses (i) and (ii) read as under:--
(i) "That the sum of Rs, 4,36,06,689/- awarded in favour of the respondents against the appellant/judgment-debtor No. 1 through judgment and decree dated 25.1.1996 passed by the Banking Tribunal, Faisalabad shall be the amount ultimately payable by the appellant/judgment- debtor in full and final discharge of their liabilities under the decree aforesaid provided no violation of the terms and conditions of this agreement is committed by the judgment-debtor No. 1.
(ii) That the decretal amount of Rs. 4,36>06,891/- shall be payable by the judgment-debtor No. 1 within a period of one year from the date the first sale-deed is made by the Rehmania Textile Mills (Pvt.) Ltd. And no mark-up interest or any other charges whatsoever thereupon shall be payable by the appellant/judgment-debtor. In case, however, the total decretal amount is not paid within a period of one year from the. Said date the appellant/judgment-debtor shall be liable to pay mark- up on the unpaid portion of the decree at the rate of 14% till the full and final liquidation of the liability."
9. The above-referred clauses of the compromise decree dated 18.3.1999 show that the decretal amount of Rs. 4,36,06,891/- was neither changed nor modified by the parties or the Court. It is admitted by the learned counsel for the parties that the above-said amount of Rs. 4,36,06,891/- was the decretal amount in decree dated 25.1.1996 as well as in the amended decree dated 18.3.1999 qua the decree- holder Bank i.e. Habib Bank Limited, upon whose suit the above-said decrees were passed (initially by Banking Tribunal, Faisalabad and thereafter by a learned Division Bench of this Court). The amount of Habib Bank's decree thus remained unchanged. The amount of liquidated damages and other amounts, disallowed by the learned Banking Tribunal did not form part of the compromise and were thus accepted to have been validly excluded. Learned counsel for judgment-debtors Nos.
8. And 10 has, however, relied upon Clause (v) of the compromise decree, wherein, an amount of 40% out of the sale proceeds was apportioned to the share of decree-holder Bank. 40% of the sale proceeds were stipulated to be the share of decree-holder Bank. It is to be noted that claim or suit of IDBP was neither before the learned Division Bench deciding R.F.A. No. 264/1996 nor was the said claim adjudicated upon by the learned Appellate Bench to culminate into a decree, as defined in Section 2(2) of the Civil Procedure Code. It was only upon compromise of the parties that reference, was also made to 40% share of IDBP, without any adjudication, decision or decree by the learned Appellate Bench in favour of IDBP. The case or appeal pending before the learned Division Bench of this Court arose out of decree dated 25.1.1996 passed against the judgment-debtors in the suit of the decree-holder Bank (Habib Bank Limited) and not in the suit of I.D.B.P.
10. I am, therefore, of the opinion that claim of IDBP as sought to be part of amended decree dated 18.3.1999 by judgment-debtors Nos. 8 and 10, cannot be clubbed with the claim of the decree- holder Bank to be executed by this Court H.B.L, y. Rehmania Textile Mills Tax St Corp. 149 (Muhammad Sair AH, J.) #tbs [Vol.XXII #the through enforcement of amended decree dated 18.3.1999 in the present execution petition.
Similarly, the present execution petition only relates to the prayer of the decree-holder for enforcement of amended decree dated 18.3.1999 in favour of Habib Bank Limited (the decree- holder). No such execution petition was filed- by IDBP to claim execution of Clause (v) of amended decree in its favour.
11. The contention of the learned counsel for the judgment-debtors Nos. 8 and 10 is that definition of Banking Court given in Section 2(b) (i) read with Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is to be read to mean, that claim in the suit, as originally filed, will determine the pecuniary jurisdiction of the Court.
12. I am afraid, I do not subscribe to the view of the learned counsel for judgment-debtors Nos. 8 and 10. The word 'claim' as mentioned in Section 2(b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 relates to the claim of the 'case' which in the present proceedings in the 'claim' in the execution petition before this Court. The word 'claim' as used in Section 2(b)(1) ibid has a direct reference to the term 'case" employed in the said definition of the Banking Court. 'Case' of course, includes an execution petition. The word 'claim' has not been restricted to the claim of a decree-holder plaintiff in a suit. Section 2(b)(i) and (ii) ibid defines Banking Court as under:- 2(b) "Bankins Court" means. --
(i) in respect of a case in which the claim does not exceed fifty million rupees or for the trial of offences under this Ordinance, the Court established under Section 5.
(ii) in respect of any other case, the High Court."
13. In the above reproduced definition, the terms relevant to the present proposition in hand are 'case' and 'claim', In my opinion, the word 'case' has consciously been used in this legislative instrument;- in order to be a determinative factor for the purposes pf jurisdiction of the Banking Court as established under Section 5 of the Ordinance of 2001 or Banking Court in the High Court. Term 'case' has a wider meaning and connotation than the word 'suit' (as referred to by the learned counsel for judgment-debtors Nos. 8 and 10). 'Case' includes all proceedings, suits, petitions, appeals, reviews, revisions and all other actions relating to or arising out of tis, causes or complaints between the parties.
14. The word 'case' has been defined in Black's Law Dictionary (Sixth Edition) by Henry Campbell Black, M.A,, as under:- "A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a Court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a Court of justice. A judicial proceeding for the determination of a controversy, between parties wherein rights are enforced or protected, or wrongs are prevented jr redressed; any proceeding judicial in its nature."
The word 'case' has been described in Chambers 21 Century Dictionary (Revised Edition) by .Mairi Robinson, as under:-- "A particular occasion, situation or set of circumstances; an example; instance or occurrence; someone receiving some sort of treatment or care; a matter requiring investigation; a matter to be decided in a law Court."
15. In view of the above, scope of term 'case' cannot be restricted to a suit only. The word 'case' obviously Includes execution petitions and proceedings undertaken therein. As such, the claim of the decree-holder in the execution petition [Vol.XXII H.B.L V. Rehmania Textile Mills Tax St Corp. 151 (Muhammad Sair Ali, J.) will determine pecuniary limit of the relevant Court in terms of Section 2(b)(1) ibid, which in the present case does not exceed Rs. 50 million.
16. Furthermore, reference has been made by the learned counsel for judgment-debtors Nos. 8 and 10 to the provisions of Section 19 ibid in favour of his proposition that as suit, under this section, is to be converted into execution proceedings, therefore, claim in the suit shall be the determining factor for the purpose of jurisdiction of the Banking Court qua definition contained in Section 2(b)(i) above-referred. This reference requires reproduction of the provisions of Section 19 ibid hereunder:- -
19. "Execution of decree and sale with or without intervention of Banking Court. - (1) Upon pronouncement of judgment and "decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment-debtor in this regard. Particulars of the mortgaged, pledged or hypothecated property and other assets of the judgment-debtor shall be filed by the decree-holder for consideration of the Banking Court and the case will be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree: Provided that if the record...................................... (2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force or In such manner as the Banking Court may at the request of the decree-holder consider appropriate, including recovery as arrears of land revenue.
Explanation. ~ The term assets or properties in subsection (2) shall include any assets and properties acquired benami in the name of an ostensible owner.
(3) ......................... ...:... (4) ..... :............................ .......
(5) .....
(6) ............................................ (7) ............................................ ?"
17. The above reproduced provisions do state that upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically be converted into execution proceedings and there shall be no need to file a separate execution application to seek enforcement of the decree.
Conversion of the suit automatically into execution proceedings can, by no stretch, be taken to mean that jt is the claim of the plaintiff in the suit which is to be enforced and executed against the judgment-debtors.
18. Cumulative reading of the entire section, particularly sub-section (2) above emphasizes that decree of the Banking Court shall be executed in accordance with the provisions of Civil Procedure Code or any other law for the time being-in force or in any such manner as the Banking Court may consider appropriate. Had legislature intended to make initial claim in the suit as the determining jurisdictionar amount, the term employed in the definition of Section 2(b)(1) and Section 19 above would have been the claim in the 'plaint' and not the 'claim' in the case or suit. The reason is obvious. Upon pronouncement of a judgment and decree, claim in the suit stands duly adjudicated upon and incorporated in the decree, which formally expresses the same in terms of definition of the decree contained in Section 2(2) of the Civil Procedure Code. Furthermore, it is also well-settled that execution proceedings are continuation of the suit proceedings [Vol.XXII H.B.L V. Rehmania Textile Mills Tax 8t Corp. 153 (Muhammad Sair Ati, J.) and claim of a decree-holder in execution petition is the claim finally adjudged and settled in the suit by the Court.
19. In view thereof, provisions of Section 19 appropriately employ the word 'suit' for conversion of the same into execution proceedings for the purposes of enforcement and execution of the decree passed in the suit. These provisions, therefore, cannot be interpreted to limit the scope of the word 'suit' or 'case* to plaintiff decree- holder's claim in the plaint.
20. Even otherwise, in my opinion, after decision of a suit by a Banking Court, it is the adjudicated claim as decreed by the Banking Court, which becomes the subject-matter of the case-claim in execution proceedings for the purposes of determination of pecuniary jurisdiction of this Court. In the present execution petition, the amount of amended decree sought to be enforced is Rs.
4,36,06,891.00. As such, under Section 7(6) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 read with Section 2(b)(i) ibid, this Court does not enjoy the pecuniary jurisdiction to try and proceed with the present execution petition which in fact stands transferred to the learned Banking Court of competent jurisdiction, which in the present case is stated to be the Banking Court at Faisalabad.
21. Office is directed to remit the record of the present case alongwith all petitions thereto, to the above-said Banking Court through special messenger at the expenses/costs of judgment-debtor No. 1. C.M. Is accepted in above terms. The execution petition shall be tried by the above-said Court of competent jurisdiction in accordance with law. The parties shall appear before the learned Banking Court, Faisalabad on 4.12.2002. .