Section 2 : Definitions
2009 CLD 761 LAHORE-HIGH-COURT-LAHORE
INTERNATIONAL FINANCE CORPORATION VS SARAH TEXTILES LTD.
S.2(a)—Banking Tribunals Ordinance (LVIII of 1984), S.2—Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.2—‘Financial institution’—Scope—Legislative history started with promulgation of Banking Tribunals Ordinance, 1984, wherein “Banking Company” was defined and institutions covered under the definition were mentioned—Definition of “Banking company” under S.2 of Banking Tribunals Ordinance, 1984, ended with word “means” which held that Banking company was to be construed in narrow and restrictive sense; thereafter provisional enactments were made but next substantive enactment Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, was enacted repealing Banking Tribunals Ordinance, 1984—Section 2 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, again used word “Banking company” and it ended with the word “means”, such definition was also narrow and restrictive—Finally Financial Institutions (Recovery of Finances) Ordinance, 2001 was enacted, wherein clear departure from previous definitions on the subject was made and word “Banking company” was dropped and substituted with word “Financial institution”—With inclusion of word “includes” definition of “Financial institution” stood enlarged in S.2(a) of Financial Institutions (Recovery of Finances) Ordinance, 2001.
2008 CLD 935 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD YAQOOB VS UNITED BANK LTD
Ss. 2(c) & 11–‘Customer’—Definition—Suit for recovery of loan—Employee—Directors of the company, who had defaulted, as per plaint, could not at all be termed as customers within the meaning of S.2(c), Banking Tribunals Ordinance, 1984—Judgment and decree to their extent was wholly without jurisdiction.
2004 CLD 1344 LAHORE-HIGH-COURT-LAHORE
NATIONAL DEVELOPMENT FINANCE CORPORATION VS NATIONAL DEVELOPMENT FINANCE CORPORATION
—-S.2(e)—Finance’—Interpretation—Scope—Term finance’ does not include the liquidated damages under the Banking Tribunals Ordinance, 1984—Claim of the bank with regard to liquidated damages on the basis of finance availed ,by the borrower under
2004 CLD 444 LAHORE-HIGH-COURT-LAHORE
Messrs FANCY MANUFACTURES LIMITED VS EQUITY PARTICIPATION FUND
—-S.2(a) & Sched.—“Banking Company “—Connotation–Company neither defined in Banks (Nationalization) Act, 1974 nor otherwise a `Banking Company” would be deemed to be a “Banking Company” within the meaning and scope of Banking Tribunals Ordinance, 1
2004 PCRLJ 464 LAHORE-HIGH-COURT-LAHORE
Ch. MUHAMMAD ASIF VS THE STATE
—-S: 498—Penal Code (XLV of 1860), Ss.380/409—Banking Tribunals Ordinance (LVIII of 1984), Ss.2(d) & 5(6)—Bail, grant of—Jurisdiction of Banking Court—Scope—Allegation against accused was that because of his alleged act, the complainant had
2003 CLD 109 LAHORE-HIGH-COURT-LAHORE
TAJ ZARAI INDUSTRIES VS HABIB BANK LIMITED
Banking Tribunals Ordinance 1984 —-Ss. 2(a), 6, 9 & 11(4)—General Clauses Act (X of 1897), S.24-A (as added by General Clauses (Amendment) Act (XI of 1997)]—Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.5—Decree for recovery of loan amount with liquidated damages—Appellants submitted reply to show-cause notices under S. 6(2) of the Banking Tribunals Ordinance, 1984 along with application for condonation of delay caused in filing such reply—Banking Tribunal on finding such reply being time-barred decreed the suit without passing any order on the said application–Validity —Appellants pursuant to show-cause notices issued for 12-12-1993 appeared before Banking Court, but without filing reply sought adjournment—Banking Tribunal instead of passing decree against appellants as required under S.6(4) of the Banking Tribunals Ordinance adjourned the case—Appellants subsequently on 4-1-1994 filed reply to show-cause notices along with application seeking condonation of delay, which was supported by affidavit–Neither reply to such application had been called from the Bank nor the Bank had filed its counter-affidavit controverting the contents of application filed by appellants—Banking Court had decreed the suit without deciding said application, which would be presumed to be till pending—Bank was not entitled to recover the amount debited in appellant’s account as liquidated damages–Banking Court without taking into account the statement of accounts which was the mainstay of the case of Bank, had proceeded to decree the suit—Impugned judgment was sketchy, slip-shod and devoid of reasons as the same was not at all a speaking order and could not be called a judicial order”– -Banking Court had completely misread the record and had not decided the case in accordance with law on the subject and had committed grave legal errors in decreeing the suit—High Court accepted appeal, set aside impugned judgment/decree and remanded the case, directing that the suit, appellants ‘reply to show-cause notices and their application for condonation of delay would be deemed to be pending before Banking Court.
2002 CLD 1018 LAHORE-HIGH-COURT-LAHORE
NATIONAL BANK OF PAKISTAN VS FIRST TAWAKAL MODARABA through Tawakkal Management (Pvt.) Ltd.
Banking Tribunals Ordinance 1984 —-Ss. 2(c)(e) & 6—Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980), Ss.2(a) (b)(c) & 24—Suit for recovery of money was filed by Bank before Banking Tribunal—Plaintiffs case was that it negotiated the export bills of defendant-company from time to time, credited the value of respective export bills into account of defendant maintained with Bank and the amounts were then withdrawn by defendants from said account as reflected in the statement of accounts–Defendant-company objected to jurisdiction of Banking Tribunal for not being a Modaraba Tribunal as envisaged by law—Validity—Jurisdiction of Banking Tribunal would extend in cases, where claim was to be filed by “Holder of Modaraba Certificate” against the “Modaraba Company’ or by a “Modaraba Company” against any “other party with whom it had entered into business”—Nature of transaction undertaken by the parties to suit had to be seen for determining the question of jurisdiction of Modaraba Tribunal—Transaction undertaken by the parties was neither a “Modaraba Business” nor plaintiff was holder of “Modaraba Certificate” nor same was “Modaraba Company”– -Plaintiffs case fell within the definitions of finance” as given in S.2(e) and “customer” as given in S.2(c) of Banking Tribunals Ordinance, 1984, thus, the same did not fall within the jurisdiction of Modaraba Tribunal.
2002 CLD 303 LAHORE-HIGH-COURT-LAHORE
MESSRS EXTRACTION PAKISTAN LTD. THROUGH CHIEF EXECUTIVE VS CHAIRMAN, BANKING TRIBUNAL COMMERCIAL III, LAHORE
Banking Tribunals Ordinance 1984 —-Ss. 2(a)(e), 6, 13 & Sched.—Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.7(6)—Financial Institutions (Recovery of Finances) Ordinance (XLV1 of 2001), Ss. 5, 7(6) & 29—Constitution of Pakistan (1973), Art 199—Constitutional petition—Suit for recovery of money–Respondent being a leasing company leased out a vehicle to petitioner and on committing default in payment of its monthly rent, respondent filed suit against petitioner—Contention of petitioner’was that respondent was not a banking Company, thus, notification of inclusion of its name in Schedule of Banking Tribunals Ordinance, 1984 could not be issued and on such score, Banking Tribunal could not assume jurisdiction in the matter—Validity—Definition of “Banking company” as given in S.2(a) of the Banking Tribunals Ordinance, 1984 includes a company specified in its Schedule–Definition of Finance” as given in S.2(e) of the Ordinance, includes a “lease” also—Federal Government in exercise of its powers conferred under S.13 of the Ordinance had included the name of respondent-company at Serial No. 18 in the Schedule of the said Ordinance—No exception, thus, could be taken by petitioner with regard to issuance of such notification or filing of recovery suit against him by respondent-company under S.6(1) of the Ordinance–Constitutional petition was dismissed being devoid of merits –Suit as a result of repeal of Banking Tribunals Ordinance, 1984 and Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, would be deemed to be transferred and pending before Banking Court established under S.5 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which would decide same in accordance with law.
2002 CLD 301 LAHORE-HIGH-COURT-LAHORE
ALLIED BANK OF PAKISTAN LTD., MCLEOD ROAD, BRANCH, LAHORE VS MESSRS LUCKY AUTOS AND RICKSHAW EXCHANGE, ROYAL PARK, MCLEOD ROAD, LAHORE
Banking Tribunals Ordinance 1984 Ss. 2 & 6 Banking Companies (Recovery of Loans) (Amendment) Ordinance (II of 1983), Ss. 2, 4 & 5 Execution of decree passed by Civil Court during the period between the date of promulgation of Banking Companies (Recovery of Loans) (Amendment) Ordinance (II of 1983) and 17-4-1988 i.e. the date of judgment of Supreme Court passed in Yasmeen Nighat’s case (PLD 1988 SC 391) settling the law qua absence of jurisdiction in Civil Courts as to suits for recovery of Bank loans valuing Rs.1,00,000 or below???Special Banking Court dismissed the Bank application for execution of such decree holding same as void???Contention of the Bank was that decree passed by Civil Court prior to judgment of Supreme Court had become final by non?filing of appeal by respondents, and thus, had assumed character of “past and closed transaction”??? Validity??Judgment and decree so passed by Civil Court being a judgment in personam, had become “final” in absence of challenge arid was thin “a past and closed transaction”??Special Banking Court had exceeded its jurisdiction by dismissing execution application of the Bank???Appellate Court accepted the appeal and set aside the impugned order as a result of which, execution petition filed by the Bank would be deemed to be pending before Banking Court, who would decide same in accordance with law.
2001 PLD 313 LAHORE-HIGH-COURT-LAHORE
EFU GENERAL INSURANCE LTD VS CHAIRMAN, BANKING TRIBUNAL NO. 1, LAHORE AND 3
OTHERS
Banking Tribunals Ordinance 1984 —-S. 2(c)—Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.8—Constitution of Pakistan (1973), Art.199—Constitutional petition—“Customer”—Definition—Indemnifer—Concept—Respondents, a Banking Company filed a suit for recovery of certain amount—Other respondents applied for impleading of the Insurance Company (petitioner) as a party which was allowed—Insurance Company (petitioner) raised a number of objections against the order but the Court, instead of deciding same, decreed the suit again;: , Insurance Company (petitioner) and other respondents– Validity—Insurance Company having only insured the goods of customer against theft and robbery and having nothing to do with the transaction, between the Bank and its customer, could not be said to be an indemnifier against non-payment of the suit amount—Liability of the Insurance Company could only be created if the goods of customer had been lost on account of theft or robbery.
2001 MLD 1955 LAHORE-HIGH-COURT-LAHORE
ALLIED BANK OF PAKISTAN LIMITED, FAISALABAD VS ASISHA GARMENTS
—-S, 2(a)—Term “finance” -“Liquidated damages” not included in the term “finance” —Definition of the term “finance” as given in S.2(a) of Banking Tribunals Ordinance, 1984, does not include and cover the amount of liquidated damages and the damages
2001 YLR 1549 KARACHI-HIGH-COURT-SINDH
UNITED BANK LTD., KARACHI VS GRAVURE PACKAGING (PVT.) LTD.
Banking Tribunals Ordinance 1984 —-S.2(e)—BCD Circular No. 13, dated 20-6-1984—Expression ‘accommodation’ or facility’—Meaning—Word ‘accommodation’ or facility’ has to be read in conjunction with the words ‘not based on interest’ and in reading the fact that it is not based on interest, reference has to be made to the proceedings of BCD Circular No.13, dated 20-6-1984 issued by State Bank of Pakistan in respect of the finances to be granted in terms of the Islamic System of Banking.
1997 SCMR 521 SUPREME-COURT
MANDVIWALLA MAUSER PLASTIC INDUSTRIES LIMITED, PECHS, KARACHI VS FEDERATION OF PAKISTAN
—-S. 2(1)(c)—Banking Tribunal’s Ordinance (LVIII of 1984), S.2(a)(iii)–.Constitution of Pakistan (1973), Art. 185(3)—“Modaraba Company”–Connotation—Leave to appeal was granted to consider whether “Modaraba Company” defined by S.2(1)(c), Modaraba
1997 PLD 62 KARACHI-HIGH-COURT-SINDH
ABDUL RAHIM VS U.B.
2(e)—Finance—Contract of service—Amount and nature of service–Concept—Agreement for finance between a Bank and its customer is not a contract concerning service and the amount of service renderable by a Bank is not reliable to the principal or outstanding amount of loan, finance or interest–Contract for finance based on interest and contract for finance-based on mark-up and structured on Islamic mode of finance—Distinguished.
1997 CLC 886 KARACHI-HIGH-COURT-SINDH
UNITED BANK LIMITED VS SHAFIQ TEXTILE MILLS LIMITED
8 (2)(b)—Banking Tribunals Ordinance (LVIII of 1984), Ss.2(e) & 5— Suit for recovery of Bank loan on basis of negotiable instrument filed in High Court—Objection to jurisdiction of High Court—Banking Tribunal had jurisdiction in respect of claims filed by Banking Company against customer in respect of, or arising out of, finance provided by it—No Court other than Banking Tribunal would have jurisdiction with respect to any matter to which jurisdiction of Banking Tribunal extended—Provision of S.5 of Banking Tribunals Ordinance being substantive provision would exclude jurisdiction of all Courts, including that of High Court to entertain suits of such kind as referred to in S.5(1)(a), Banking Tribunals Ordinance, 1984—Jurisdiction of Special Courts to entertain cases included in S.8(2)(b), Banking Companies (Recovery of Loans) Ordinance, 1979 has thus, been excluded—High Court having no jurisdiction to entertain and decide such cases returned plaints to plaintiffs for presenting such plaints before proper forums.
1996 PLD 99 LAHORE-HIGH-COURT-LAHORE
CAPITAL FARMS, ISLAMABAD VS NATIONAL DEVELOPMENT FINANCE CORPORATION
Ss. 2, 4, 5 8—Suit based on agreement of finance—Jurisdiction—Suit based on agreement of finance on mark-up basis was exclusively triable by Banking Tribunal constituted under Banking Tribunals Ordinance, 1984: -[Jurisdiction].
1996 CLC 1718 KARACHI-HIGH-COURT-SINDH
ORIENT MATCH COMPANY (PVT.) LTD. VS TANKING TRIBUNAL FOR KARACHI AND SUKKUR
Banking Tribunals Ordinance 1984 Ss. 2(a)(iii), (e) 5(3) & 13–=Constitution of Pakistan (1,973), Art. 199–Constitutional jurisdiction—Jurisdiction of Tribunal—Validity—“Finance”– Definition—Petitioner-Company which took on lease five motor vehicles from respondent, having failed to pay to respondent lease amount according to terms of agreement arrived at between the parties, respondent filed suit for recovery of lease amount against petitioner before Banking Tribunal—Petitioner had challenged jurisdiction of Banking Tribunal contending that transaction in question was not covered by definition of “finance” as appearing in Banking Tribunals Ordinance, 1984—Tertn “finance” included an accommodation or facility under a system which provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, lease, rent sharing and licensing etc. —Accommodation/facility as envisaged in the agreement arrived at between the parties, was availed by petitioner-Company and agreement in essence related to financial transaction between the parties—Terms of agreement clearly showed that agreement in question was .covered by definition of “finance” as given in S. 2(e) of Banking Tribunals Ordinance, 1984 and respondent was a company within meaning . of S. 2(a)(iii) of that Ordinance—Tribunal under S. 5(3) of Banking Tribunals Ordinance, 1984 had exclusive jurisdiction to decide question as to existence or otherwise of the “finance”—Tribunal, thus, was the only forum available to respondent for deciding his claim—Contention of petitioner that Tribunal had no jurisdiction to decide case of respondent, was repelled. —[Words and phrases–Jurisdiction].
1996 MLD 1273 KARACHI-HIGH-COURT-SINDH
MURTAZA FLOUR MILLS (PVT.) LTD. VS FEDERATION OF PAKISTAN
Banking Tribunals Ordinance 1984 —-Ss.2, 13 & Sched.—Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980), Ss.2, 5, 7 & 12—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Banking Tribunals —Modaraba Companies’inclusion in the Schedule of Banking Tribunals Ordinance, 1984–Effect—Jurisdiction and validity—Inclusion of Modaraba Companies in the Schedule of Banking Tribunals Ordinance, 1984, vests Banking Tribunals with exclusive jurisdiction to try claims filed by Banking Companies against customers—Specified procedure has been prescribed for resolution of such claims and appeals filed against any order, decree or sentence passed by Banking Tribunal—Term “Modaraba” as defined in S.4, Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 can be included in term “company “—Even if Modaraba could not qualify as company as defined in Banking Companies Ordinance, 1962, yet no restriction has been imposed in regard to its inclusion in the Schedule of Banking Tribunals Ordinance, 1984–Mere fact that Modaraba can sue or be sued through Modaraba Company, would not lead to inference that claim relating thereto could have been filed before Tribunal to be constituted under Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 and not before Banking Tribunals Ordinance, 1984—Banking Tribunal, thus, has jurisdiction to try suits pending against petitioner filed by Modaraba Companies. —[Words and phrases].
1995 PLD 360 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD SHAFI & CO VS NATIONAL BANK
Banking Tribunals Ordinance 1984 Ss. 5 & 2(c)—Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), Ss.6 & 2(b)—Civil Procedure Code (V of 1908), S.24—Constitution of Pakistan (1973), Art.203—Suit filed by Banking Company against customer (petitioner) pending adjudication before Banking Tribunal—Petitioner’s suit for damages against Banking Company pending adjudication before Banking Court—Petitioner’s application before High Court for consolidation of both suits and transfer to one Court/Tribunal—Maintainability—Distinct scope of two Ordinances viz. Banking Tribunals Ordinance, 1984 and Banking Companies (Recovery of Loans) Ordinance, 1979—Suits based on loan repayable with interest are to be tried by Special Courts established under Banking Companies (Recovery of Loans) Ordinance, 1979 while cases of financing of non-interest bearing character ate triable by Banking Tribunal established under Banking Tribunals Ordinance, 1984—Term “borrower” has been used in S.2(b), Banking Companies (Recovery of Loans) Ordinance, 1979 while term “customer” has been used in S.2(c), Banking Tribunals Ordinance, 1984—Banking Tribunal-has no jurisdiction to adjudicate suit filed by a “customer” while “borrower” . can sue Banking Company in terms of S.6(a), Banking Companies (Recovery of Loans) Ordinance, 1979—Tribunals/Special Courts have exclusive jurisdiction in the matters assigned to them under the statutes which are responsible for their creation—Tribunals/Special Courts, thus, possess limited jurisdiction which could not be equated with Courts of general jurisdiction—Suit pending in Banking Tribunal, therefore, could not be transferred to Banking Court constituted under Ordinance of 1979 and suit of petitioner pending in Banking Court could not be sent to Banking Tribunal–Subject-matter of suits being distinct these could not be consolidated–Application for consolidation and transfer of suit to one Court/Tribunal being misconceived, was not maintainable in circumstances.
1994 SCMR 1299 SUPREME-COURT
GHULAM MUSTAFA JATOI VS ADDITIONAL DISTRICT & SESSIONS JUDGE/RETURNING OFFICER, N.A.158, NAUSHERO FEROZE
—-S. 12 [as amended by Representation of the People (Amendment) Ordinance (XVI of 1993) and Representation of the People (Amendment) Ordinance (XX of 1993)]—Banks Nationalization Act (XIX of 1974), S. 12(5) [as incorporated by Banks Nationalization (A
1994 CLC 2272 KARACHI-HIGH-COURT-SINDH
BANQUE INDOSUEZ VS BANKING TRIBUNAL FOR SINDH & BALOCHISTAN
Banking Tribunals Ordinance 1984 S 2(c)—Contract Act (IX of 1872), S. 62—Banking Tribunal–Jurisdiction—Banking Tribunal, in case of novation of contract was required to look into the new agreement and to determine whether same was in conformity with definition of “finance” as given in S.2(c), Banking Tribunals Ordinance, 1984—Agreement between parties being in conformity with the definition of “finance”—Banking Tribunal was under legal obligation to exercise jurisdiction in the matter—Banking Tribunal, thus, erred in declining to exercise such jurisdiction—Plaintiff’s suit being competent, Banking Tribunal was directed to proceed with the same in accordance with the provisions of Banking Tribunals Ordinance, 1984.
1993 SCMR 1996 SUPREME-COURT
GRAIN SYSTEMS (PVT.) LTD. VS AGRICULTURAL DEVELOPMENT BANK
—-Ss.5 & 6—Banking Tribunals Ordinance (LVIII of 1984), S. 2 (e)—Banking Companies (Recovery of Loans) Ordinance, 1979–Banking Tribunals Ordinance, 1984—Distinguishing features.
1993 MLD 1571 KARACHI-HIGH-COURT-SINDH
HABIB BANK LTD. VS FAROOQ COMPOST FERTILIZER CORPORATION LTD
Banking Tribunals Ordinance 1984 —-S.2(e)—Enforcement of Shariah . Act (X of 1991), Preamble—Banking Tribunal declining to grant mark up beyond the transaction period —Validity–Word “finance” used in S.2(e), Banking Tribunals Ordinance, 1984–Connotation—Agreements calculating to advance concept of trade and to forestall extension of interest are to be construed in the light of Islamic Fiqh.
1991 CLC 1743 KARACHI-HIGH-COURT-SINDH
UNITED BANK LIMITED VS SHAHID CORPORATION
Banking Tribunals Ordinance 1984 —-S.2 (e)—Word-`finance’–Meaning, scope and import of. The word `finance’s defined under clause (e) of section 2 of the Banking Tribunals Ordinance, 1984. It includes an accommodation or facility under a system which was not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, lease, rent sharing, licensing, charge or fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trade marks and copy rights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika certificate, modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof was a person other than the person to whom or in whose name it was provided.