' RAJA FAYYAZ AHMAD, C.J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been directed against the judgment and decree dated 28-11-2001 passed by the learned Judge, Banking Court Balochistan, Quetta in Civil Suit No,184 of 2001 whereby the suit filed by the appellants for declaration, settlement of accounts etc. Has been dismissed for went of jurisdiction to adjudicate upon the matter in view the relevant provisions of the law.
2. The brief facts of the case are that prior to the institution of the suit the appellants filed Constitutional Petition No,500 of 2001 in this Court on the stated averments that they are account holders with the respondent-Bank and obtained cash finance facilities from time to time from the respondent-Bank and the dispute resting between the parties, as urged in the Constitutional petition, was that their liability under the various agreements of finance executed between the parties was not redressed as the respondent-Bank failed to maintain their finance account as per agreed terms and conditions between the parties. The learned counsel for the petitioners argued that mark-up has been charged in violation of Islamic modes of financing and the instructions issued by the State Bank of Pakistan, which have a binding force, and; he further argued that mark- up could only be charged to the extent of agreed period which was never extended, therefore, action of the respondent-Bank whereby it has calculated huge amounts on account of mark-up is in violation of the law and the agreements executed between the parties and thus; a sum of Rs,81,61,69'3 was illegally charged from the petitioners by the respondent-Bank, moreover; it was argued that the petitioners are only liable to pay Buy-Back Price alongwith any other charges for which they are liable under the agreements and the law. The controversy between the parties was reflected in paras. Nos,21, 22, 23, 24, 25 and 30 of the Constitutional petition reproduced in the order dated 6-8-2001 passed in C.P. No,500 of 2001 and it was held that the grievance of the petitioners being relatable to the alleged obligation of the respondent-Bank under the terms and conditions of the finance, therefore, the same could be appropriately adjudicated upon by the learned Judge, Banking Court under the provisions of the Act XV of 1997. With these observations the Constitutional petition was dismissed in limine. Operating part of the order passed in Constitutional Petition No,500 of 2001 for convenience and reference is reproduced hereinbelow:-- "We have considered the contentions raised by the learned counsel, in the light of contents of the petition, hereinbefore mentioned. And, we are of the view that the petitioners have an alternate and effective remedy under section 9 of Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act. As a matter of fact, alleged claim of the petitioners cannot be decided without leading evidence. Here it would be advantageous to refer Nasim-ud-Din v. United Bank Ltd. (1998 CLC 1718) illustrating the categories of cases which would fall exclusively within the jurisdiction of a Banking Court established under section 2(b) of Act, 1997. Inter alia eight categories of the cases were enumerated in the judgment including all suits arising out of a loan or finance, suit for specific performance of an agreement or to perform any obligation arising out of such agreement, all the suit for declaration to legality, validity or otherwise of a document which creates loan or finance, any suit for cancellation of any instrument through which any liability to pay may arise, all the suit for prohibitory or mandatory injunction which may restrain any of the parties from performing their obligation and duties arising out of such business pertaining to loan or finance and all suit for damages arising out of breach of contract executed in respect of loan or finance between a Banking Company and a borrower or customer have been held to fall within the exclusive domain of the Banking Court. And, as the grievance of the petitioners being relatable to alleged obligation of the respondent-Bank under the terms and condition of the finance, same could appropriately adjudicated by the learned Judge under the provisions of Act, 1997."
3. In the light of the above mentioned order, the appellants instituted suit against the respondent- Bank on or about 5-7-2001 in the Banking Court, Balochistan, Quetta in respect of their grievance relating to the rights and obligations of the parties arising out of the agreements executed between the parties with regard to the financial facility availed by the appellants, instructions issued by the State Bank of Pakistan from time to time etc. The learned Judge, Banking Court after obtaining written statement from the respondent-Bank and hearing the parties vide judgment and decree dated 28-11-2001 dismissed the suit of the appellants for want of jurisdiction vesting in the Court to adjudicate upon the matter. The relevant and operating part of the judgment is reproduced hereunder:-- "The defendant in response to the claim of plaintiff filed written statement and objections to the jurisdiction to deal with the matter has been raised specifically. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 empowers the Court to deal with particular cases. The Banking Court has the powers to exercise jurisdiction and to deal with the subjects covered by section 2(b) (i) of the said Act. Section 2 (i) is reproduced as under:-- "Section 2. Definition.---In this Ordinance, unless there is anything repugnant in the subject or context-2(b) (i) in respect of a case in which the outstanding amount of claim based on a loan or finance not exceeding thirty million rupees or the trial of offences under this Act, the Court established under section 4; and
(ii) in respect of any other case, the high Court;"
' The case may also be examined from the provisions contained in Financial Institutions (Recovery of Finances) Ordinance, 2001. Although by virtue of section 4 of the Ordinance, 2001, it has overriding effect and all proceedings under the said Act shall stand transferred and dealt with under new enactment. The Banking Court has been established under section 5 of the Ordinance, 2001 to exercised jurisdiction under the Ordinance. Although powers under Civil Procedure Code have been extended to be exercise but the plenary powers of Civil Courts have not been extended to deal with the cases of ordinary civil jurisdiction. The Banking Court has been defined in section 2(b) of Act, which clearly refers section 5 of the Ordinance which is reproduced as under:- "Section 5. "Establishment of Banking Court.--- (1) The Federal Government may, by notification in the official Gazette establish as many Banking Courts as it considered necessary to exercise jurisdiction under this Ordinance and appoint a Judge for each of such Courts and where it establishes more Banking Courts than one it shall specify in the notification the territorial limits within which each of the Banking Courts shall exercise its jurisdiction."
' Since no authority or jurisdiction has been vested within the Banking Court to deal cases of ordinary civil jurisdiction either under Act, 1997 or under Ordinance, 2001, as such this Court has no jurisdiction to adjudicate upon the matter in view of provisions of law. The suit is therefore, dismissed with no order as to costs, decree-sheet be prepared."
4. The learned counsel for the appellants as well as Mr. K.N. Kohli for the respondent-Bank have been heard. Mr. Talat Waheed, Advocate contended that in view of the order passed by this Court on 6-8-2001 in Constitutional Petition No,500 of 2001 the learned Judge, Banking Court was under legal duty to have adjudicated upon the matter by resolving the real controversy resting between the parties provided; the respondent-Bank was successful in obtaining leave from the Court to defend the suit by making application within the stipulated period with regard, to the grievance of the appellants pertaining to the obligation of the respondent-Bank arising out of the finance facility availed by the appellants, the agreements executed between the parties and instructions issued by the State Bank of Pakistan from time to time. On the subject, after framing necessary issues in the light of the pleadings of the parties within the purview of subsection (1) of section 9 of Act XV of 1997 i,e, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and the matter being pending with the Court prior to the promulgation of Ordinance No, XLVI of 2001 dated 30-8-2001, is required to be .Decided under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 within the meaning of subsection (6) of section 7 of the Ordinance read with section 9 but the learned Judge, Banking Court without adhering to the aforesaid provisions and the order passed by this Court in Constitutional Petition No,500 of 2001 in a slipshod manner dismissed the suit of the appellants for lack of jurisdiction to adjudicate upon the matter. The learned counsel thus; contended that the impugned judgment and decree is liable to be set aside and the matter be remanded to the learned Banking Court with the direction to decide the same strictly in accordance with the law.
5. The learned counsel for the respondent-Bank argued that the learned Judge, Banking Court appropriately did not exercise the jurisdiction not vested in it under the law, hence; the appeal is liable to dismissal.
6. The contentions put forth on behalf of the parties by their learned counsel have been considered in the light of the pleadings of the parties and the impugned judgment gone through carefully including the order passed by this Court in Constitutional Petition No,500 of 2001 operative part whereof has been reproduced hereinabove. It appears that the learned Judge, Banking Court without taking notice of the order passed by this Court and without adhering to the provisions of section 9 of the repealed Act and the identical provisions of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on an unsustainable ground refused to exercise jurisdiction to adjudicate upon the matter for reason that the plenary powers of a Civil Court having not been extended to deal with the cases of ordinary civil jurisdiction. Perusal of the provisions of section 9 of the repealed Act and the Ordinance in force of 2001 abundantly shows that powers have specifically been conferred on a Banking Court to adjudicate upon a matter where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance; financial institution or, as the case may be, the customer may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution, as may be duly authorized in this behalf by power of attorney or otherwise and; similar provisions were available in section 9 of the repealed Act of 1997 in the light whereof after consideration of the case of the appellants brought before this Court in Constitutional Petition No,500 of 2001 it was specifically observed in the order that the grievance of the petitioners being relatable to the alleged obligation of the respondent- Bank under the terms and conditions of the finances, can appropriately be adjudicated upon by the learned Judge under the provisions of Act XV of 1997 in respect whereof the appellants subsequently instituted the present suit. Since the Financial Institutions (Recovery of Finances)
Ordinance, 2001 dated 30,-8-2001 was promulgated during pendency of the suit and as by virtue of section 29(1) of the Ordinance, Act XV of 1997 was repealed therefore, the suit being pending with the Banking Court was required to have been heard and disposed of in accordance with the law in force in terms of the provisions of subsection (6) of section 7 of Ordinance No,XLVI of 2001. Bare perusal of the impugned judgment shows that the learned Banking Court did not apply its mind to the facts of the case nor adhered to the above-quoted provisions of law nor attended to the operating part of the order passed in Constitutional Petition No,500 of 2001 referred to above and hastily on an unsustainable ground dismissed the suit of the appellants, consequently; the impugned judgment and decree being a nullity in the eye of law, is set aside. The result is that this matter is remanded to the learned Judge, Banking Court Balochistan, Quetta with the direction to dispose of the same strictly in accordance with the law after hearing the parties.
' The result is that this appeal is accepted in the above terms leaving the parties to bear their own costs.