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Zeeshan Jamil Vs Judge Banking Court Faislabad (2010 C L D 274)

 2010 C L D 274

 [Lahore]

 Before Umar Ata Bandial, J

 ZESHAN JAMIL—Petitioner

 Versus

 JUDGE BANKING COURT, FAISALABAD and 2 others—Respondents

 Writ Petition No. 8096 of 2009, decided on 9th July, 2009.

 Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)—

 —-S.16(3)—Constitution of Pakistan (1973) Art.199—Constitutional petition—Obtaining property through finance lease—Taking over of possession of said property by the Bank—Petitioner was the purchaser of vehicle from Bank after its possession from its defaulting financee—Defaulting financee thereafter filed a suit for declaration and permanent injunction against the auction of the vehicle and for the return of its possession to him—Petitioner who claimed to have purchased the vehicle in question, was impleaded as defendant in the said suit—Submission of petitioner was that a banking suit was maintainable by or against only the parties to a finance, namely, the creditor financial institution and its customer—Petitioner was not a customer, but a third party to whom vehicle in question had been sold by the Bank free from encumbrance—Petitioner had contended that he having no connection with the finance in question, was not liable to be impleaded as a party in the suit—Suit was still at the stage of determination of the dispute raised therein—By order passed by Banking Court, petitioner was asked to produce the vehicle in question in the court for the entrustment of its custody to the entitled person—Counsel for the petitioner had contended that said order of Banking Court had violated the mandatory jurisdictional limits—Validity—Proviso to S.16(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 had provided compensation as an appropriate mode of relief to a disappointed lease finance rather than the return of the financed asset in question—Keeping that proviso in mind, impleading of petitioner in the suit before the Banking Court, was contrary to law-High Court declared that the impugned order fell into error in concluding that petitioner’s impleadment was lawful—Said order was declared to be without lawful authority and of no legal effect. 

 Messrs Data Laboratories (Pvt.) Ltd. through Chief Executive and 3 others v. Judge Banking Court No.III, Lahore and 4 others 2008 CLD 1326; Procter and Gamble Pakistan (Pvt.) Ltd., Karachi Bank Al-Falah Limited Karachi and 2 others 2007 CLD 1532; Zaeem A. Malik through Attorney v. Muslim Commercial Bank Ltd. through Manager and 2 others 2006 CLD 1553; M. Manzoor Ahmad Paracha and 5 others v. Habib Bank Ltd. through President and 2 others 2007 CLD 571 and Ghulam Mustafa Khar’s case PLD 1989 SC 26 ref.

 Ahsan Masood for Petitioner.

 Awais Anwar for Respondent No.2.    

 ORDER

 UMAR ATA BANDIAL, J.—The respondent No.3 has been served through his brother but none appears on his behalf. He is stated to be abroad. The question raised in this petition is purely related to the law, therefore, there is no need to prolong these proceedings to await the return of respondent No.3.        

 2. The petitioner is a purchaser of a vehicle from respondent No.2 Bank after its repossession from its defaulting financee, the respondent No.3. Respondent No.3 thereafter filed a suit for declaration and permanent injunction against the auction of the vehicle and for the return of its possession to him. The petitioner who claims to have sold the vehicle, was impleaded as defendant in the said suit. Learned counsel for the petitioner relied on Messrs Data Laboratories (Pvt.) Ltd. through Chief Executive and 3 others v. Judge Banking Court No.III, Lahore and 4 others 2008 CLD 1326; Procter and Gamble Pakistan (Pvt.) Ltd., Karachi Bank Al Falah Limited Karachi and 2 others 2007 CLD 1532, Zaeem A. Malik through Attorney v. Muslim Commercial Bank Ltd. through Manager and 2 others 2006 CLD 1553 and M. Manzoor Ahmad Paracha and 5 others v. Habib Bank Ltd. through president and 2 others 2007 CLD 571 to submit that a banking suit is maintainable by or against only the parties to a finance, namely, the creditor financial institution and its customer. The petitioner is not a customer but a third party to whom the subject matter of the finance the vehicle has been sold by the Bank free from encumbrance. He has no connection with the finance in question. Therefore he is not liable to be impleaded as a party in the suit.

 3. The learned counsel for the respondent Bank has pointed out that the Financial Institutions (Recovery of Finances) Ordinance, 2001 does contemplate the impleadment of a third party stranger to a finance extended by a financial institution but at the stage of execution of decree and not trial. The suit is still at the stage of determination of the dispute raised therein. By order dated 15-4-2009 passed by the learned Banking Court the petitioner was asked to produce the vehicle purchased by him in Court for the entrustment of its custody to the entitled person. The learned counsel for the petitioner submits that the said order violates the mandatory jurisdictional limits contained in the statute and is thereby without jurisdiction. He relies on Ghulam Mustafa Khar’s case PLD 1989 SC 26 to submit that an act without jurisdiction is challengeable before a Court of law notwithstanding any ouster of the jurisdiction clause. In the present case his petition arises out of an interim order allegedly passed by the learned Banking Court without jurisdiction.

 4. The submission made by the learned counsel for the petitioner have weight and the support of substantial authority. It is to be noted the proviso to section 16(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides compensation as an appropriate mode of relief to a disappointed lease finance rather than the return of the financed asset in question. Keeping that provision in mind and in particular the afore-noted judgment of the superior Courts the impleadment of the petitioner in. the suit before the learned Banking Court is contrary to law. It is accordingly directed that the impugned order dated 1.5-4-2009 falls into error in concluding that the petitioner’s impleadment is lawful, therefore, the said order is declared to be without lawful authority and of no legal effect. This petition is allowed with no order as to costs.

 H.B.T./Z-64/L                                                                                      Petition allowed.

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