' MIAN HAMID FAROOQ, J.---Present appeal, filed by Agricultural Development Bank of Pakistan, under section 9 of the Banking Tribunals Ordinance, 1984 (since repealed) proceeds against judgment and decree dated 19-3-1995, whereby the then Banking Tribunal, while disposing of the appellant's suit directed it to refund a sum of Rs.40,322, being excessively paid by the respondent.
2. Briefly stated, the facts leading to the filing of the present appeal are that the appellant-Bank filed a suit for recovery of Rs.2,52,814, including all the charges, expenses and liquidated damages, against the respondent, before the then Banking Tribunal, who issued requisite notice, under section 6(2) of the Ordinance, 1984, to the respondent, but as no reply to the show-cause notice was filed within the stipulated period, therefore, an ex parte decree, dated 8-7-1993, was passed favouring the appellant. However, the same was set aside, on an application filed by the respondent, who, later on, filed the reply to the show-cause notice. Ultimately, the then Banking Tribunal, after finding that the suit amount has been paid and a sum of Rs.40,322 has excessively been received by the appellant, proceeded to dispose of the suit and directed the appellant to refund the said amount to the respondent, vide judgment and decree dated 19-3-1995, hence the present appeal.
3. Despite service nobody has entered appearance to represent the respondent, thus he is proceeded ex parte.
4. Learned counsel for the appellant, while relying upon an unreported judgment rendered by the Division Bench of this Court in R.F.A. No,385 of 1996 (Agricultural Development Bank of Pakistan v.
Nawaz Akhtar), conceding to the rest of the judgment, has contended that the portion of the judgment whereby the appellant has been directed to refund a sum of Rs.40,322, is not sustainable in law, as grant of such relief to the respondent was not within the jurisdiction of the learned Tribunal.
5. In view of the solitary argument of the learned counsel, we have examined the record of the case, relied upon by the learned counsel, and find that the Division Bench of this Court, while dilating upon the identical controversy, has held as under:- "We have heard the respondent who is present in person and on examination of the law and the judgments cited above, we are of the view that the Banking Tribunal had no jurisdiction to award the relief to the respondent, therefore, to this extent judgment and decree of the Banking Tribunal is set aside."
' While respectfully following the dictum laid down by the Division Bench of this Court as noted above, we are also of the view that the learned Banking Tribunal had no jurisdiction to pass a decree for the refund of the amount of Rs.40,322 in a suit for recovery, filed by the appellant, moreso, when no "counter-claim" or "set off' was claimed by the appellant, thus we are . Inclined to set aside that portion of the decree.
6. So far as the rest of the judgment is concerned, apart from the fact that the learned counsel has raised no objection, find from the examination of the impugned judgment that the same is legal, unexceptionable, does not suffer from any legal infirmity and thus does not call for any interference, so the same is hereby maintained.
7. In view of the above, the appeal is partly accepted and the impugned judgment and decree is modified to the extent that a portion of it, which relates to the refund of a sum of Rs.40,322 to the respondent, is set aside, while the rest of the judgment and decree is hereby maintained with no order as to costs.