Banking Courts, Special Tribunals and High Court's Banking Jurisdiction

BANKING COMPANIES ACT 1997

(RECOVERY OF LOANS, ADVANCES, CREDITS AND FINANCES)

Section 2 Definition (b) Banking court: means-

(1)   In respect of a case in which outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or trial of offences under this Act, the court under section 4: and

(2)   In respect of any other case, the High court;

Section 4 ESTABLISHMENT OF

BANKING COURT

(1)   The federal government may, by notification in the official gazette, establish as many banking courts as it considers necessary to exercise jurisdiction in respect of the cases covered by section 2(b)(i) and appoint a judge for each of such courts and where it establish more banking court than one, it shall specify in  the notification the territorial limits within which each of banking court shall exercise jurisdiction under this Act.

(2)   Where more banking courts than one have been established to exercise jurisdiction in the same territorial limits the federal government shall either prescribe a procedure for the distribution of , or authorize a judge of any of one such court to distribute, cases among such courts.

(3)   Where more banking courts than one have been established in the same or different territorial limits, the High court may, if it considers expedient to do so in the interest of justice or for the convenience of parties or Plaintiff the witnesses, transfer any case from one banking court to another.

(4)   A judge of a banking court shall be appointed by the federal government after consultation with the chief justice of the high court of the province in which the banking court established and no person shall be appointed a judge of a banking court unless he has been a judge of a high court or is or has been a District judge.

(5)   A banking court shall hold its sitting at such places within its territorial jurisdiction as may be determined by the federal government.

(6)   A judge of a banking court, not being a District judge, shall be appointed for a term three years from the date he enters upon his office.

(7)   The salary, allowances and other terms and conditions of service of a person appointed as a judge of a banking court shall be such as may be determined by the federal government.

(8)   Nothing contained in this section shall apply to a high court in the exercise of its jurisdiction under this act.           

Section 5: HIGH COURT. The chief justice of each high court shall, for securing the expeditious disposal of the cases under this act, nominate one or more judges to exercise jurisdiction in respect of cases hereunder:

                                                Provided that federal government may request the Chief justice to ensure the expeditious disposal of cases by assigning no other work to such judge.

Section 7(4):                            Subject to sub-section (5), No court other than a banking court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a banking court extends under this act.

Section 21: Appeal.—(1)        Subject to sub section (2), any person aggrieved by a decree, or an order refusing to set aside a decree, or ant order permitting or preventing the sale of property, or a sentence passed by a banking court established under section 4 may, within thirty days of such order, decree or sentence, prefer an appeal to the high court.

FINANCIAL INSTITUTIONS (RECOVERY OF FINANCE) ORDINANCE 2001

Section 7: POWERS OF

BANKING COURT

(1)    Subject to the provisions of this ordinance, a banking court shall:-

(a) In the exercise of its civil jurisdiction have all the powers vested in a civil court under the code of civil procedure 1908.

(b) In the exercise of its criminal jurisdiction, try offences punishable under this ordinance and shall, for this purpose have the same powers as are vested in a court of session the code of criminal procedure 1898.

Provided that a banking court shall not take cognizance of any offence punishable under this ordinance except upon a complaint in writing made by a person in this behalf by the financial institution in respect of which the offence was committed.

(2)   A banking court shall in all matters  with respect to which the procedure has not been provided for in this ordinance, follow the procedure laid down in the code of civil procedure 1908 and the code of criminal procedure 1898.

(3)    All proceedings before a banking court shall be deemed to be judicial proceedings within the meaning or section 193 and 228 of Pakistan penal code, and a banking court shall be deemed to be a court for purpose of the code of criminal procedure1898.

(4)   Subject to sub-section (5), no court no court other than a banking court shall have or exercise any jurisdiction with respect to any other matter to which the jurisdiction of a banking court extends under this ordinance, including a decision as to the existence or otherwise of a finance and the execution of  a decree passed by a banking court.

(5)   Nothing in sub-section 4 shall be deemed to affect –

(a)     The right of a financial company to seek any remedy before any court or otherwise that may be available to it under the law by which the financial institution may have been established; or

(b)     The powers of the financial institution or jurisdiction of any court such as referred to in clause (a); or

Require the transfer to a banking court of any proceedings pending before any financial institution or such court immediately before the coming into force of this ordinance.

(6)   All proceedings pending in any banking court constituted under the banking companies (Recovery of loans, Advances, credits or finances) Act 1997, including suits for recovery of “loans” As defined under that act shall stand transferred to, or be deemed to be transferred to, and heard an disposed of, by the banking court having the jurisdiction under this ordinance. On transfer of proceedings under this sub-section, the parties shall appear before the banking court on the date previously fixed

(7)   In respect of proceedings transferred to a banking court un sub-section (6) the banking court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the court from which the proceedings were transferred.           

SECTION22. APPEAL: (1) Subject to section (2), any person aggrieved by any judgment, decree, sentence or final order passed by a banking court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to high court.

THE BANKIG COMPANIES (RECOVERY OF LOANS) ORDINANCE, 1979

SECTION 2 DEFINITION:

                        (f) “

SPECIAL COURT

” means

(i) In respect of a case in which the outstanding amount of the loan does not exceed, one million rupees or the trial of offences punishable under this ordinance, a person who is or has been a district judge or an additional district judge and is appointed by the federal Government, by notification in the Official Gazette, to be a special court to exercise jurisdiction within such territorial limits as may be specified in the notification, and, in the absence of such appointment, the District Judge, and

(ii)  In respect of any other case, the High Court in the exercise of original civil jurisdiction.

Section 6         POWER OF THE

SPECIAL COURT

     

(1)        A special Court shall--

            (a)        in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);

            (b)        in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for that purpose have the same powers are vested in the court of Sessions under the Code of Civil Procedure, 1898 (Act V of 1898):

provided that a Special Court shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorized in this behalf by the banking company in respect of which the offence was committed; and

            (c)        exercise and perform such other powers and functions as are, or may be conferred upon, or assigned to it by or under this Ordinance.

            (2)        notwithstanding anything contained in sub-section (1), a

Special Court

shall have no civil jurisdiction in a case in which—

            (a)        [Omitted by the Banking Companies (Recovery of Loans) Ordinance, II of 1983];

            (b)        arbitration proceedings in respect of the loan are pending before an arbitrator; or

            (c)        the loan was sanctioned under an agreement between the banking company and the borrower which provides for a dispute between the parties being referred to arbitration.

(3)        all proceedings before a special court shall be deemed to be judicial proceedings within the meaning of Sections 93 and 288 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and the special court shall be deemed to be a court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).

(4)        no court other than a special court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a special court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a special court: and all proceedings, including proceedings following the filing of any arbitration award and proceedings for the execution of a decree within the jurisdiction of a special court, by whatever court passed, which may be pending in any court immediately before the commencing day shall stand transferred to the special court.

            [Provided that nothing in this sub-section shall be deemed to affect—

            (a)        the right of a banking company to seek any remedy before any court that may be available under the law by which the banking company may have been established or under that law as amended from time to time; or

            (b)        the jurisdiction of any court such as is referred to in clause (a), or to require the transfer to a special court of any proceedings pending before any such court immediately before the commencing day.]

            (5)        in respect of proceedings transferred to a special court by virtue of sub section (4), the said court shall not, by reason of the said transfer, be bound to re-call and re-hear any witness who has given evidence before the transfer and may act on the evidence already recorded by or produced before the court from which the proceedings are so transferred.

SECTION 12 APPEAL  (1) Any person aggrieved by any order, judgment, decree or sentence of a special court may, within thirty days of such order, judgment decree or sentence, prefer an appeal to the High court within whose jurisdiction the order, judgment, decree or sentence is passed:

                                                Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the special court.

(2)   An appeal under sub-section (1) shall be on any one of the following grounds, namely:--

(a)    The decision being contrary to law or to some usage having the force, or

(b)   The decision having failed to determine a material issue of law or usage having the force of law, or

(c)    A substantial error apparent in the procedure provided by or under this ordinance, which may possibly have produced error in the decision on merits.

(3)   An appeal may be preferred under this section from decision made ex-parte.

(4)   An appeal under this section shall be heard by a bench of not less than two judges.

(5)   No appeal shall be admitted for hearing unless the appellants deposits in cash with the High court an amount equivalent to the judgment debt or, at the discretion of the High court, furnishes security equal in value of such amount.

OFFENCES IN RESPECT OF BANKS ORDINANCE 1984

Section 3: Constitution of Special courts.

(1)   The federal government may, by notification in the official gazette, constitute, for the whole or any part of the Pakistan. Special court consisting of a person who has been or is, or is qualified for appointment as a judge of the High court.

                    (1-A) A person to be appointed as a special court under sub- section (1) shall be appointed in consultation with the high court in which the special court is established and shall hold office for term of three years from the date he enters upon his office.

                    (1-B) A person, not being a judge of a High court, appointed as special court under this section may, by notice in writing in his hand address to the federal government resign from his office or may be removed from his office on the ground of misconduct.

                        (2) A special court shall sit at such place as the federal government may, by notification in the special gazette, specify in this behalf.