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Before Tanzil-ur-Rehman, J
UNITED BANK LTD.-Plaintiff
versus
MESSERS AKBAR AGENCIES LTD.-Defendant
Suit No. 788 of 1984, decided on l8th November, 1986.
(a) Banking Tribunals Ordinance (LVIII of 1984)-
--- Preamble-Scope of Ordinance-Ordinance, does not create a new right but only provides procedure or machinery for seeking relief for recovery of finance-Where Tribunal was unable to exercise its functions and procedure had been rendered nugatory and ineffective by Government's own inaction, right of repayment, available to a plaintiff, held, could not be held in the vacuum or in suspense and such plaintiff would have right to seek his remedy through High Court.
Dost Muhammad Malik v. The Returning Officer and another P L D 1965 Lah. 560 and H. H. Ahmed v. Pakistan and another P L D 1972 Kar. 366 rel.
(b) Banking Tribunals Ordinance (LVIII of 1984)-
-- S. 5(3)-Civil Procedure Code (V of 1908), S. 9-Word "Court" and expression, "no Court other than the Tribunal", connotation of-Word "Court" used in S. 5(3) of Banking Tribunals Ordinance, 1984 does not include "High Court"-.Ouster clause of jurisdiction would indicate that Tribunal alone was conferred exclusive jurisdic tion to try suit under Ordinance-Where, however, Tribunal was unable to exercise its functions having been rendered ineffective by Government's inaction, High Court, on its original side would have jurisdiction to entertain such suits under S. 9, C. P. C. till such time, that Tribunal starts functioning.
H. H. Ahmed v. Pakistan and another P L D 1972 Kar. 366 ; The State v. Zia-ur-Rahman and others P L D 1973 S C 49 ; Mirza Jawad Beg v. The State P L D 1975 Kar. 628 and Chaudhry Zahur Ellahi v. The State P L D 1977 S C 273 ref.
(c) Banking Tribunals Ordinance (LVIII of 1984)-
-- S. 4(1)-Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 4(3)-Recovery of Bank loan-Filing of plaint-- Procedure-Plaint to be filed with Banking Tribunal in accordance with S. 4(1) of Banking Tribunals Ordinance-Notice on defendant would be as per procedure of S. 4(3) of Ordinance-Tribunal would pass decree in favour of Banking Companies where defendant failed to file reply within ten days of service of notice-All suits filed before Banking -Tribunal would be disposed of within ninety days of filing f plaint-Where proceeding continued beyond ninety days, defendant, hell, would be required to deposit in cash or to furnish security acceptable to Banking Tribunal equal in value to claim in suit-On defendants failure to make such deposit or furnishing such security, Banking Tribunal would pass decree in favour of Banking Company as per prayer in plaint.
(d) Banking Tribunals Ordinance (LVIII of 1984)
-- S. 4-Civil Procedure Code (V of 1908), O. XXXIV, R. 3-Suit for recovery of Bank loan-Enforcement of mortgage of immovable property-"Decree", nature of-Where claim filed before Banking Tribunal was for enforcement of mortgage of immovable property, "decree" held, would mean final decree for foreclosure, sale or redemption-There would be no preliminary decree in such suits.
(e) Banking Tribunals Ordinance (LVIII of 1984)-
--- S. 4(1)-Civil Procedure Code (V of 1908), S. 9 & O. XXXIV, R. 3-Suit for recovery of Bank loan-Procedure to be followed by High Court-High Court while taking cognizance of a suit for recovery of Bank loan, held, would not be exercising its jurisdiction under Working Tribunals Ordinance-Proceeding in such suits would :,e regulated by Civil Procedure Code and Rules of respective High Court.
(f) Civil Procedure Code (V of 1908)-
-- S. 9-Banking Tribunals Ordinance (LVIII of 1984), S. 4(1) Suit 161 recovery of Bank loan--Banking Tribunal rendered ineffective and nugatory by Government s inaction---High Court admitting and registering suit in its original jurisdiction with observation that a soon as Banking Tribunal started functioning, plaintiff would file application for transfer of such suit to Tribunal.
Liaquat Merchant for Plaintiff.
Wajihuddin Ahmad, Standing Counsel for Attorney-General on Court's Notice for the Federal Government.
Nemo for the A.-G. (Sind).
Date of hearing : 26th October and 17th November, 1986.
These are two suits waiting to be registered in the office of this Court.
2. A reference has been made by the office for orders as to their registration or any other order that is deemed proper in the circumstances.
3. Mr. Liaquat Merchant, learned counsel for the plaintiff, submits that the Tribunal constituted under the Banking Tribunals Ordinance, 1984, (hereinafter called the Ordinance), though in existence is not functioning, In fact, as submitted by him, when he presented the plaints to the Chairman of the Tribunal, Mr. A. A. Dareshani he declined to accept the same on the ground that the Tribunal was not functioning and did not have any Court or Alice premises or staff or the stationery.
4. It was further submitted by the learned counsel that the Ordinance was promulgated as long as back in 1984 with a view to achieve expedi tious disposal of cases under the Islamic Banking System. After about one and half year of the promulgation of the said Ordinance, the Tribunal comprising of one Chairman and two members has been constituted about six months ago but the Tribunal is not equipped with the necessary staff and other things to start its functions and achieve the purpose, which it was intended.
5. In view of the above, he submits that this Court has jurisdiction to accept and entertain the suit.
6. Reliance was placed by him on case reported as Dost Muhammad Malik v. The Returning Officer and another (P L D 1965 Lah. 560).
7. In the above cited case, the question was whether the provisions of Article 171 of the Constitution and section 58 of Electoral College Act (IV of 1964) exclude the jurisdiction of that Court under Article 98 of the Constitution to entertain disputes arising in connection with an election held under the Constitution The Full Bench summed up its conclusions which are as follows :-
"(i) A right founded on statute can be established in Courts if the Special Tribunal or authority named in the statute for establishment of their rights does not exist ; (ii) if such it Tribunal or authority neglects to exercise its functions or acts improperly in the exercise of its functions, a High Court can grant relief' under clauses (a) and (b) of Article 98(2) of the Constitution ; and (iii) in the matter of elections to Legislatures and other electoral bodies are exception is made in that no dispute arising in the course of an election will be entertained until the election is completed."
8. I expressed my doubt as to the application of the said authority to the facts of the present case, as the case cited pertained to the exercise of constitutional jurisdiction which is extraordinary, whereas in the instant case the question is relatable to the exercise of ordinary civil jurisdiction of this Court. Thereupon, the learned counsel took time and produced another ruling reported as H. H. Ahmed v. Pakistan and another (P L D 1972 Kar. 366).
9. There seems to be a fine distinction between the (1) rights created by an Act and then constituting a Tribunal thereunder giving exclusive jurisdiction to determine these rights and (2) where the right is obtained outside a statute but a Tribunal is provided for its adjudication under the statute. It will be advantageous to reproduce the relevant para. of the said judgment.
" ....The precise rule enunciated on the weight of authority was that where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then: except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive'. In other words, in order to constitute implied ouster of an absolute nature of right or the liability, in relation to which the Statute prescribes a special machinery of adjudication, must also owe its own creation to that very Statute. And where this condition obtains the ouster is complete irrespective of the existence or functioning of or exercise of jurisdiction by the special machinery devised by the Statute. Where however the right or the liability, as the case may be, is not the product of the Statute which provides for its adjudication, the inference of ouster will not follow as a rule."
10. The Banking Tribunals Ordinance, 1984, is not, in any sense, relating a new right. It only provides a procedure or machinery for seeking , the relief for recovery of finance as is evident from reading the preamble of Ordinance itself.
11. In the circumstances, that the Tribunal is unable to exercise it s a functions, the procedure has been rendered nugatory and machiery has been rendered ineffective by the Government's own inaction. The right of repayment, which is available to the plaintiffs, cannot be held in the vacuum or in suspense and as such they should have a right to seek their remedy through this Court in the light of the observations made in P L D 1972 Kar. 365.
12. Yet, there seems to be another difficulty. It is provided in section 5(3) of the said Ordinance that "no Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a banking tribunal extends under this Ordinance' " The question, therefore, arises whether the expression "no Court other than a banking tribunal" includes the High Court In this respect, section 9 of the Ordinance may also be referred which expressly confers a right of appeal against a decree or sentence passed by a Banking Tribunal under the Ordinance to the High Court. Such appeal is to be heard by a Bench of not less than two judges. Mr. Liaquat Merchant, therefore, submitted that two different words have been used in section 5 (3) and section 9, namely: "Court" and "High Court". It is, thus, clear that the Legislature intended different meaning to these two words and therefore, different meaning will have to be attributed to these two words. Reliance was placed on the case reported as The State v. Zia-ur-Rahman and others (P L D 1973 S C 49). Relevant observation in the judgment of Hamoodur Rahman, C. J. appearing at page 82 of the Report is quoted as under;---
"It is a well-established rule that we have to gather the intention of the law maker from the words used by it; and if it has in two clauses of the same Article used different words, then it follows that its intention is not the same, particularly, where such a conclusion also appears to be in consonance with reason and justice."
13. Learned counsel also placed his reliance on the cases reported as Mirza Jawad Beg v. The State (P L D 1975 Kar. 628) and Chaudhry Zahur Ellahi v. The State (P L D 1977 S C 273).
14. In the first case, the interpretation of the words "no Court" coming up for consideration before this Court, section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1974, was noticed which provided a right of appeal to the High Court against the sentence passed by a Special Court but further went on to say that :
"No Court shall have the authority to revise any sentence or transfer any case from the Special Court or to make any order or have any jurisdiction of any kind in respect of any proceedings of a Special Court." The Division Bench which decided the above case held that the words-
No Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Court." if made applicable to the High Court, would deprive the High Court of its power to hear appeals under section 7 of the said Ordinance because the hearing of the appeal would be the exercise of jurisdiction falling within the exclusive domain of the Special Court.
15. In the present case a similar situation has arisen in the sense that while section 5(3) seeks to exclude any other Court from exercising jurisdic tion with respect to any matter to which the jurisdiction of the Banking Tribunal extends, section 9 confers right to appeal to the High Court. If, therefore, the words "no Court" appearing in section 5(3) is applied to the High Court, section 9 of the Banking Tribunal Ordinance would become redundant and this would not be the intention of the legislature.
16. In the second named case, the words "no Court", also coming up for consideration before the Hon'ble Supreme Court, the learned Supreme Court, while considering section 13 of the Defence of Pakistan Ordinance which also provided a right of appeal to the High Court against a sentence passed by the Tribunal and further provided that -
"No Court shall have authority to revise such order or sentence or transfer any case from the Special Tribunal or make any order under Cr. P. C. or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal." by a majority judgment held that the words :--
" No Court', cannot be interpreted to include a superior Court or a High Court. It was (held that the jurisdiction of a High Court cannot be abolished or ousted unless this was done by express word or clear intentment."
Relying on the above two judgments, it appears that the word Court' used in section 5 (3) of the Banking Tribunals Ordinance does not include 'High Court'. It is however, noticeable that the ouster clause of jurisdiction not only mentions the words "no Court", but also the words "other than the tribunal". The expression "other than the tribunal" indicate the manifest intention of the Legislature that the tribunal' alone is conferred exclusive jurisdiction to try the above suits under the Ordinance, as also submitted by Mr. Wajihuddin Ahmad, but the tribunal, as observed earlier, is unable to exercise its functions. In this circumstance, it seems, the High Court, on its original side, will have jurisdiction to entertain the above suits, under section 9, C. P. C. till such time that the Tribunal start functioning.
17. A question may, however, be raised as to the procedure by which the proceedings in the above suits will be regulated. The Ordinance, inter alia, provides that on plaint being filed with the Banking Tribunal in accor dance with the provisions of subsection (1) of section 4 of the Ordinance, the Banking Tribunal shall issue notice requiring the defendant to show cause, within ten days of the service of such notice, as to why decree as prayed for in the plaint should not be passed against him, Notice shall be served on the defendant in accordance with the procedure for service of notice laid down in subsection (3) of section 4 of the Banking Companied (Recovery of Loans) Ordinance, 1979. Upon the defendant failing to fill a reply within 10 days of the service of the notice or upon rejection by the Tribunal of the plea taken by him in the reply, the Tribunal shall pass decree in favour of the Banking Company as prayed for in the plaint. The Ordinance further provides that all suits filed in the Rankmg Tribunal shall be disposed of within 90 days of filing of the plaint and in case pro ceedings continue beyond the said period, the defendant shall be asked to deposit in cash or to furnish security, acceptable to the Tribunal, equal in value to the claim in suit, and, on failure of the defendant to mane such deposit or furnishing such security, the Banking Tribunal shall past decree in favour of the Banking Company, as prayed for in the plaint. It further provides that where the claim filed before the Tribunal is for the enforcement of a mortgage of an immovable property, "decree" shall mean final, decree for foreclosure, sale or redemption, as the case may be, as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure. It therefore, seems that there will be no preliminary decree, as generally is the case with the suits filed under Order XXXIV in the High Court. Mr. Merchant submits that the procedure laid down in the Banking Tribunal Ordinance, 1984 will apply to the suits. The submission does not stem to be correct. The High Court will not be exercising its jurisdiction under the Banking Tribunal Ordinance and so the proceedings cannot he governed by the said Ordinance. I am, therefore, of the view that the proceedings in above suits will be regulated by Code of Civil Procedure read with Sind Chief Court Rules (O. S.) as also submitted by Mr. Waiihuddin Ahmad.
18. The upshot of the above discussion is that the above suits shall be admitted and registered in this Court, if otherwise proper.
19. Before parting with the matter, I would like to place on record the statement of Mr. Merchant, who also happens to be Deputy Attorney General, that as soon as the Tribunal starts functioning he will file an H application in this Court for transfer of the suits to the said Tribunal.
20. Let a copy of this order be sent to the Secretary, Ministry of Justice and Parliamentary Affairs (Justice Division), Government of Pakistan, Islamabad for taking necessary steps in the matter so as to make it possible to achieve the objects underlying the Ordinance.
A. A. Suit registered.
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