ORDER SHEET
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Date Order with signature of Judge
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DATE OF HEARING 19.02.2014
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Syed Daanish Ghazi, Advocate
for the Appellant.
Mr. Khursheed Ahmed Qureshi
Advocate for Respondent.
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Syed Hasan Azhar
Rizvi J; Being
aggrieved and dissatisfied with the judgment dated 05.04.2012 passed by the
learned Banking Court No.V, Karachi in Banking Suit No.529/2007 the Appellant
filed present Appeal.
The Appellant on 12.03.1997
entered into a Deed of Assignment and Partnership with the Respondent, the House
Building Finance Corporation and acquired a sum of Rs.4,82,000/- and the said
Deed was novated and a new deed was executed by the Appellant. Appellant paid
fixed monthly instalments at the rate of Rs.27948/- to the Respondent. However,
by several letters the Appellant had intimated the discrepancies in the
calculation and legitimate demand made by the Respondent. Respondent’s
Officials caused great harassment, mental torture and discomfort to the
Appellant by demanding exorbitant and arbitrary claim. Appellant had decided to
defend her claim as the Respondent had failed to maintain proper account.
Hence, the Appellant served a letter dated 12.09.2013 on the Appellant and
instead of Appellant’s letter the Respondent approached to the Chief of CIB
Banking Supervision Department, State Bank of Pakistan. Appellant sent a
detailed reply of that letter and thereafter, filed claim before the Federal
Ombudsman. Appellant tendered two pay-orders dated 17.08.2005 amounting to Rs.5,49,263/- and Rs.5,61,521/- as full and final settlement of
the principle amount as well as markup and monthly charges.
Since the Appellant on
account of torture and malafide act of the Respondent had suffered a lot of
mental torture, discomfort, loss of health, agony, pain and loss of reputation as
such the Appellant filed a Suit for declaration, specific performance,
permanent injunction and damages in the sum of Rs.10 Million against the
Respondent in this Court, which was dismissed for want of pecuniary
jurisdiction in the Banking Court No.V at Karachi. Banking Court dismissed the
leave to defend application of the Respondent. Evidence of the parties were recorded by the Banking Court. The Banking Court
dismissed the suit on non-maintainability on the ground that the entire
pleadings of the Appellant (Plaintiff) was silent towards mandatory
requirements to the effect that neither the Appellant had given details of any
amount paid by her to the Respondent/Defendant nor any date of payment was
given nor the details that how much amount of finance was payable by her to the
Respondent and the Appellant had also failed to comply with the mandatory
requirement of Section 9(3) (a)(b) and (c) of the Financial Institutions
(Recovery of Finances) Ordinance, 2001.
Syed Daanish Ghazi,
Advocate for the Appellant contends that the learned Trial Court has wrongly
applied section 9(3) (a)(b) and (c) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001, which is mandatory if the
sit is filed by the Financial Institution and not by a customer.
Mr. Khursheed Ahmed
Qureshi Advocate for the Respondent has supported the impugned judgment and
argued that the suit as framed by the Appellant was not found in conformity
with Section 9(3) (a)(b) and (c) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001. He urged that the
Appellant had failed to provide required information/material statement of her
account with details of payments as per legal requirements. He also argued that
the Appeal is liable to be dismissed in limine.
By consent of both the
learned Counsel, the matter was heard and decided at Katcha Peshi stage.
For ready reference
Section 9(2) and (3) (a)(b) and (c) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001
“9. Procedure of Banking Courts.-(1)……………..
(2) The plaint
shall be supported by a statement of account which in the case of a
financial institution shall be duly certified under the Bankers Books Evidence
Act, 1891 (XVII of 1891), and all other relevant documents relating to the
grant of finance. Copies of the plaint, statement of account and other relevant
documents shall be filed with the Banking Court in sufficient numbers so that
there is one set of copies for each defendant and one extra copy.
(3) The plaint, in the case of a suit for recovery
instituted by a financial institution, shall specifically state ¾
(a) the
amount of finance availed by the defendant from the financial institution;
(b) the amounts paid by the defendant to the financial
institution and the dates of payment; and
(c) the
amount of finance and other amounts relating to the finance payable by the
defendant to the financial institution upto the date of institution of the suit”.
Bare reading of
aforementioned provisions of law, it is crystal clear that Section
9(3)(a)(b)&(c) of Financial Institutions (Recovery of Finances) Ordinance,
2001 is not applicable on the customer but is applicable to the Financial
Institution. Banking Court has wrongly applied Section 9(3) (a)(b) and (c) of the Financial Institutions (Recovery of
Finances) Ordinance, 2001 and dismissed the suit by holding that the same was
not maintainable. The appellant has enclosed the statement of Account as stated
in paragraph No.23 of the memo of Plaint. The learned Counsel for the Appellant
has drawn out attention to the statement of account,
copy of the same is enclosed as Annexure “Z-11” at page No.217 with the memo of
Appeal. Hence, the appellant has fully complied with the section 9(2) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001. Since the impugned
judgment suffered from legal defect, Banking Court has misinterpreted section
9(2) & 9(3) of the Financial Institutions (Recovery of Finances) Ordinance,
2001 therefore, we cannot restrain ourselves from setting-aside the impugned
judgment.
Above
are the reasons of our short order dated 19.02.2014 whereby instant Appeal was
allowed.
The impugned judgment was set-aside and the case was remanded to the Trial
Court for deciding the same afresh on merit.
J U D G E
J U D G E
Karachi
Dated __________