1. ' The plaintiff filed suit for recovery of Rs,100 million as damages and prayed to set off this amount and the value of the machinery being withheld by Allied Bank of Pakistan Ltd. Against the payment, if any, due. He further sought declaration that the losses caused to the plaintiff were due to negligence and failure of the defendants in fulfilling their commitments to disburse the entire amount of loan agreed to be disbursed.
2. ' Brief facts of the case are that the plaintiff-company in the year 1989 holding majority shares applied to the Government of Pakistan for grant of an exclusive licence to introduce for the first time in Pakistan, radio paging facility. The said permission was granted by the Ministry of Communication through its letter dated 25-10-1989.
3. ' The plaintiff prepared feasibility report to establish the project with the cost of Rs,166 million with debit equity ratio of 60:40 requiring plaintiffs sponsors to contribute 66.4 million and raised the rest through banks and financial institutions by way of loan amounting to Rs,99.6 million.
4. ' The plaintiff applied for the requisite financial facility to PICIC (defendant 'No,1) and Allied Bank of Pakistan Ltd. (defendant No,2) on 9-12-1989. The defendant No,1 communicated its consent to participate in the financing of digital project.
5. ' On 8-5-1990, Pakistan Banking Council informed the members of the consortium about the financing investment and liability of each member. The plaintiff alleged that although defendant No,1 and defendant No,2 disbursed their part of loan, the remaining members of the consortium, namely, Muslim Commercial Bank Ltd., Habib Bank Ltd., National Bank of Pakistan, United Bank Ltd., defendants Nos,3 to 6 refused and failed to make their contribution cumulative amounting to Rs,29.016 million. The plaintiff stated that due to the breach of agreement by the defendants in providing agreed loans to plaintiffs Digital project, same caused the plaintiff serious and crippling set back from its very inception.
6. ' The plaintiff filed Suit No,315 of 1994 against the defendant No,1 for accounts and damages in respect of the consortium loans agreed to be provided by the defendants, In the suit, the plaintiff sought declaration that the losses caused to the plaintiff were due to the utter negligence and mala fide acts of the defendants and that it was mandatory upon the defendants to disburse the money as agreed upon in accordance with the feasibility with a prayer of decree for damages in the sum of Rs, 108,051,889.
7. ' The defendant No,2 Allied Bank of Pakistan Ltd. Filed Suit No,1064 of 1997 against the plaintiff and its directors and the said suit was ultimately compromised between the parties and the plaintiff did not press any relief in this matter against the defendant No, 2, who was deleted from the pleadings by order dated 26-1-1999.
8. ' The plaintiff stated that the cause of action accrued to the plaintiff against the defendants jointly and severally, firstly on 21-3-1990 when the loan was sanctioned by the defendant No,1, secondly on 7-5-1990 when the defendant No,1 informed Pakistan Banking Council of consortium arrangement, thirdly when the letter of credit was established by Allied Bank of Pakistan Ltd. For import of machinery and equipment for the project and fourthly when the other consortium banks failed to disburse their part of the loan and thereafter it continued to accrue as and when the parties exchanged correspondence with each other.
9. ' On behalf of the defendants, Mr. Ejaz Ahmad Khan, learned counsel for defendant No,1 and Mr. Altaf Hussain, learned counsel for defendant No,4 vehemently argued that the suit, on the face of it, is barred by time and as such is liable to be dismissed. Learned counsel further argued that even otherwise the relief now claimed by the plaintiff is barred under Order II, Rule 2, C.P.C. As the claim in the suit is arising out of the same transaction, on which plaintiff had already filed Suit No,315 of 1994 and has not incorporated the said claim in it, although such relief was available to the plaintiff at that time.
10. ' Mr. Hisamuddin, learned counsel for the plaintiff, argued that the plaintiff acquired a fresh cause of action under section 22 of the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1997. Hereinafter referred to as Act, 1997 and the suit has been filed within three years from the date of promulgation of the said Ordinance.
11. ' Mr. Hisamuddin, learned counsel for the plaintiff, argued that the claim in Suit No, 59 of 1998 is a counter-claim of Suit No,135 of 1994 and as such same is within time. He further argued that even otherwise the suit is within time as the plaintiff acquired a fresh cause of action under section 22 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
12. ' It is an admitted position that the defendants Nos,3 to 6 neither disbursed a single penny towards the loan to the plaintiff nor any agreement has been executed between the plaintiff and the defendants Nos,2 to 6 in this regard. My attention has been drawn to Exh.6/5 and it appears from the said exhibit that in the meeting held on 10-12-1991 between the members of the consortium, the defendants Nos,3 to 5 categorically expressed their unwillingness to participate in consortium financing whereas defendants Nos,4 and 6 informed that the matter has been referred to their respective Credit Committees for final approval.
13. ' As per plaintiffs claim, the defendants committed breach of the agreement/undertaking in providing the finance which defendants agreed to provide sometime in the year 1990 and as such the cause of action for the damages accrued to the defendants on the said date and on 10-12-1991, when defendants Nos,3 to 5 expressed their unwillingness to participate in consortium financing.
14. ' The point that requires consideration is whether the benefit of non-applicability of Limitation Act provided under Ordinance LVIII of 1.984 Banking Tribunal Ordinance, 1984 can be extended to plaintiff/customers or not.
15. ' Section 12 of Ordinance LVIII of 1984 (Banking Tribunals Ordinance, 1984) hereinafter referred to as Ordinance, 1984, provided that the provision of Limitation Act, 1908 shall not be applied to any suit, application or other proceedings filed by banking company filed under this Ordinance.
16. ' Whereas section 22 of Banking Companies (Recovery of Loans, Advances, Credits and Finances)
17. Act, 1997, hereinafter referred to as 'Act, 1997' reads as under:--
22. Application of the Limitation Act, 1908 Act IX of 1908.---(1) Subject to subsection (2), the provisions of the Limitation Act, 1908 (Act IX of 1908), shall not apply to any suit, application or other proceedings filed or transferred to a Banking Court under this Act.
(2) The provisions of the Limitation Act, 1908 (Act IX of 1908), shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Act: ' Provided that in relation to past transactions a fresh cause of action will be deemed to arise, for purposes of limitation only, on the date on which this Act comes into force.
18. ' Section 5(1)(a) of Ordinance, 1984 provided that only banking company can file claim against the customers in respect of, or arising out of finance provided by it before the Banking Tribunal and the customers had no right to file claim in respect of any transaction (under the finance) before the Banking Tribunal constituted under Ordinance, 1984.
19. ' The Banking Company (Recovery of Loans, Advances, Credits and Finances) Act, 1997 repealed Banking Tribunals Ordinance, 1984 as well as Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 made Limitation Act applicable to all cases instituted or filed in the Banking Court after coming into force of Act, 1997 and section 22 of Act, 1997 provided that in relation to past transaction a fresh cause of action deemed to arise out, for the purposes of limitation only on the date which this Act comes into force.
20. ' The Banking Tribunals Ordinance, 1984 provided that only bank can file claim before the Banking Tribunal and not the customer and the very preamble of the said Ordinance provided that the Ordinance was promulgated to provide machinery for recovery of finance provided by banking company under a system of finance which is not based on interest'.
21. ' The customer, if aggrieved by any breach of the obligation by the banking company, could have availed his remedy under Banking Companies (Recovery of Loans) Act, 1979 or before the Civil Court under the general law and terminus quo for filing the proceedings as provided under the Limitation Act would be applicable to the said proceedings if initiated by the parties/customer.
22. ' When Special Tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute. It may be limited by conditions as to its constitution, as to the persons whom or the offences which it is competent to try, and as to the orders which it is empowered to make or by other conditions Which the law makes essential to the validity of its proceedings and ordeRs, ' Where conditions required for invoking the jurisdiction of Tribunal were not available, then remedy lies to Civil Court. Section 9, C.P.C., lays down that the Courts shall have jurisdiction to try all suits of civil nature excepting suits, of which their cognizance is either expressly or impliedly barred.
23. ' It is now settled that only financial institution/bank could invoke the jurisdiction of Banking Tribunal under Ordinance, 1984, and borrower/customer or aggrieved person has to restore his remedy before the Special Banking Court under Ordinance, 1979 before its repeal or Civil Court as the case may be, and in case his remedy becomes barred by time before the repeal of Ordinance, 1979, then such party/customer cannot file claim under Ordinance; 1997 on the premise that he acquired fresh cause of action.
24. ' The golden rule is that the words of a statute must prima facie be given their ordinary dictionary meaning however to arrive the real meaning, it is necessary to get an exact conception of the aim, scope and object of the whole Act.
25. ' Where the statute defines the limits for the purpose of benefits in a particular way, the Courts are bound to give effect to show limitation without travelling outside those limits on a presume intention of the Legislature, however great the hardship might be to, the parties, if any, other course is followed.
26. ' The plaintiff had a right to file suit for the recovery of damages, if any, suffered by him on account of breach of the obligation if any by the defendants before the Special Banking Court under Act, 1979 and since the plaintiff had failed to avail the said remedy available to him within the terminus quo prescribed under the Limitation Act, the present suit, which has been filed on 16-1-1998, is liable to be dismissed as barred by time, when admittedly cause of action accrued on 21-3-1990 and finally on 10-12-1991.
27. ' The learned Advocate for the plaintiff stated that the claim in the suit may be treated as a counter-claim of the suit earlier filed by the plaintiff being Suit No,315 of 1994, filed on 21-3-1994.
28. ' The suit even on this ground alone is also liable to be dismissed as if claim is treated as a counter- claim and or additional claim, same ought to have been filed within three years from the date of cause of action of the said suit, i,e, Suit No,315 of 1994 and this suit or the counter-claim, as per plaintiff's Advocate, is admittedly filed after three years of filing of the Suit No,315 of 1994.
29. ' The contention of learned Advocate of the plaintiff to treat the suit as counter-claim of Suit No,315 of 1994 is without any force, as defendants Nos,3 to 6 are not parties to Suit No,315 of 1994 whereas plaintiff claimed damages against these defendants in this suit. Even otherwise a counter-claim can be filed by defendant and the date of filing of such counter-claim, which can be treated as cross suit, as there is no provision for filing of counter-claim in C.P.C., will be the date on which counter-claim is filed in Court. My view finds support from the principle laid down by the Honourable Supreme Court in the case of Niamat Ali v. Jaitam Das PLD 1983 SC 5.
30. ' The plaintiff's suit is also liable to be dismissed in view of the bar under Order II, Rule 2, C.P.C. The plaintiff in the present suit claimed damages on account of breach committed by the defendants in providing the finance which cause of action was available to the plaintiff at the time of filing of Suit No,135 of 1994 and the plaintiff ought to include the whole claim for which the plaintiff was entitled to make and by omitting to sue in respect of said claim the plaintiff cannot afterwards sue in respect of portion so omitted or relinquished.
31. ' For the foregoing reasons the plaintiffs suit is dismissed with no order as to costs.