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Suit No.141 of 1976, decided on 2nd October, 1986.

--Ss.5,6-A & 8 [as amended by Banking Companies (Recovery of Loans) (Amendment) Ordinance (II of 1983)]--Recovery of loans- Jurisdiction of High Court and Special Courts--Effect on pending cases--Jurisdiction of High Court having been enhanced, cases pending immediately before the Special Courts on commencement of Ordinance II of 1983, stood transferred to the Court which would have jurisdiction in the matter after the amendment--Order of transferring a case contrary to such requirement was recalled.

Mansoorul Arfin for Plaintiff.

Badrudduja for Defendants.

Date of hearing: 2nd October, 1986.

This application has been filed for review of the order whereby the suit was transferred to the Special Court. The suit has been filed for recovery of Rs.860,235.89 under the Banking Companies (Recovery of Loans) Ordinance, 1979 hereinafter referred as 'the Ordinance'. There is no dispute that the transaction in suit is covered by the provisions of the Ordinance and the Special Court has jurisdiction to try it. The Banking Companies (Recovery of Loans) Ordinance was promulgated w.e.f.1-4-1979. Under section 5 Special Courts were established by a notification issued by the Federal Government Section 6 specified the powers of the Special Court. In exercise of civil jurisdiction the Special Court had jurisdiction in a claim filed by a banking Company against a borrower or respect of by a borrower against powers vested company Civil Court under the Code out of a loan all the powers vested in a Civil Court under the Code of Civil Procedure. Section 6(2) provided that notwithstanding anything contained in sub-section (1) a Special Court shall have no civil jurisdiction in a case in which the outstanding amount of loan does not exceed one million rupees, the arbitration proceedings in respect of loan are pending before an arbitrator, and the loan was sanctioned under an agreement between the bank and the borrower which provided for a dispute to be referred to arbitration. Therefore, to begin with, the Special Court had exclusive jurisdiction to try suits in respect of loan borrowed from the bank or for a suit against a Bank by the borrower in which the outstanding amount of loan did not exceed Rupees one million. However section 13(a) provided that notwithstanding anything contained in section 12 any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard and shall be decided by the High Court. Therefore, those suits covered by the Ordinance which were pending in the High Court in which the claim did not exceed Rs. one lac were to be tried by the High Court and were not to be transferred to the Special Court.

The Ordinance was amended by Ordinance 11 of 1983 which substituted Sec. 5 by a new section .5, amended section 6 and added--section 6-A. The definition of the Special Court was changed. It provides that the Federal Government may by Notification in the official Gazette appoint a person who is District Judge or Additional Judge to be a Special Court. In the absence of such appointment, the District Court shall act as Special Court. It further provides that the jurisdiction of the Special Court shall be in respect of loan not exceeding one million of rupees. In respect of any other case the jurisdiction shall be exercised by the High Court in the exercise of original civil jurisdiction. Therefore, by this amendment in cases in which amount was involved more than one million of rupees they were to be tried by the High Court. Section 8(1) of Ord.II of 1983 provides that any case which immediately before the commencement of the Ordinance pending before the Special Court established under section 5 of the said Ordinance (XIX/79) shall on commencement, stand transferred to the Court which would have jurisdiction after the amendment. Under section 8(1) of this Ordinance any case pending immediately before the Special Court established under section 5 of the said Ordinance on commencement of Ordinance II of 1983 stood transferred to the Court which would have jurisdiction in the matter after the amendment. As at the time of promulgation of Ordinance II of 1983 the High Court was not a Special Court under the said Ordinance the cases pending in the High Court, now covered by the said Ordinance after amendment, were not to be transferred. I therefore, recall order dated 16-3-1986. The suit should be recalled from the Special Court and tried by this Court.

H.B.T./U-10/K Suit recalled.

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