BANKING COMPANIES ORDINANCE, 1962

We shall cover the following aspects:

banking laws and practices  BANKING COMPANIES ORDINANCE, 1962

Ombudsman—Defined

Historical Background

Scope of Banking Mohtasib

Ombudsman Defined:

  • According to International Bar Association, Ombudsman is defined as an “office” provided by the constitution or by an action of the legislature or parliament and headed by an independent, high level public official which is responsible to the legislature or parliament, who receives complaints from the aggrieved person, official, and employees or who acts on his own motion and has the power to investigate, recommend corrective action and issue reports.
  • A man who investigates complaints and mediates fair settlements, especially between aggrieved parties such as consumers or students and an institution or organization.
  • A government official, especially in Scandinavian countries, who investigates citizens’ complaints against the government or its functionaries.

Evolution

In the modern world, an ombudsman was first established in 1809 in Sweden. The word “ombudsman” is of Swedish origin and means “representative or agent” of the people. In 1919, more than a century after Sweden appointed an ombudsman, another Scandinavian country, Finland, adopted the Swedish model for the redressal of public grievances against agencies of state. The next country to follow was Denmark – this happened more recently in 1955. The first country outside Europe to establish such an office was New Zealand. This was in 1962 and generated tremendous global interest inspiring many countries, in search of good governance, to launch such schemes. Today, over 100 countries have such a platform in place. In 1995, the European Union established the first European Ombudsman under the Maastricht Treaty.

With the spread of education throughout the globe, the cognizance and awareness as well as the desire for human rights, better living conditions, publics participatory role in the governance of state and establishment of NGO’s and availability of information, this desire for the rule of law and redressing the grievances of the affected parties has emerged as predominant feature in the modern society. Initially the role of of Ombudsman was restricted to the complaints pertaining to the government departments. But now there is a shift of complaints towards private sector and as such Ombudsman in the modern days entertains complaints against public sector as well as private sector. However the aggrieved party has the right to move to a court of law, in case one is not satisfied by any decision of Ombudsman.

Important Features of Ombudsman’s Law

  • Wide scope of Jurisdiction over Agencies and their functionaries.
  • Powers for Suo Motu cognizance.
  • Right to undertake Research and Studies on important issues involving mal-administration.
  • Provision for informal resolution of disputes.
  • Spot inspection where required.
  • Powers to grant compensations to aggrieve party both complainants and public servants.
  • To recommend disciplinary action against delinquent public servants.

Historical Background—in Pakistan’s perspective

Wafaqi Mohtasib: this was established in 1983

Federal Tax Ombudsman: this was established in year 2000

Banking Mohtasib: it became functional from 2005

Wafaqi Mohtasib:

The Constitution of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule. The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President’s Order No. 1 of 1983, which is a form of law). In order to ensure legal autonomy to the institution, it is reflected in Schedule 7 of the 1973 Constitution implying thereby that any amendment can be brought about by a two-third majority of the Parliament.

Objective

The main purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through mal-administration on the part of a Federal Agency or a Federal Government Official. The primary objective of the office is to institutionalize a system for enforcing administrative accountability.

Functional Attributes of the Institution

  • Easily accessible
  • Free of cost
  • Flexible in operation
  • Informal procedure
  • Prompt action
  • Service at the citizen’s door-step

Banking Mohtasib:

Scope:

In relation to all banks operating in Pakistan, the Banking Mohtasib has been empowered to entertain complaints of the following nature:

Failure to act in accordance with banking laws and regulations including policy directives or guidelines issued by the State Bank of Pakistan from time to time.

  1. 1. Delays or fraud in relation to the payment or collection of cheques, drafts or other banking instruments or transfer of funds.
  2. 2. Fraudulent or unauthorized withdrawals or debit entries in accounts.
  3. 3. Complaints from exporters or importers, relating to banking services and obligations including letters of credit.
  4. 4. Complaints from holders of foreign currency accounts whether maintained by residents or non-residents.
  5. 5. Complaints relating to remittances to or from abroad.
  6. 6. Complaints relating to payment of utility bills.
  7. 7. Delays or fraud in relation to the payment or collection of cheques, drafts or other banking instruments or transfer of funds.
  8. 8. Fraudulent or unauthorized withdrawals or debit entries in accounts.
  9. 9. Complaints from exporters or importers, relating to banking services and obligations including letters of credit.
  10. 10. Complaints from holders of foreign currency accounts whether maintained by residents or non-residents.
  11. 11. Complaints relating to remittances to or from abroad.
  12. 12. Complaints relating to payment of utility bills.
  13. 13. Complaints relating to remittances to or from abroad.
  14. 14. Complaints relating to payment of utility bills.

Complaints entertained by Banking Mohtasib

Complaints can be filed with the Banking Mohtasib for resolution of grievances against scheduled banks operating in Pakistan. Also banks may lodge complaints against another bank in case of dispute. 

Types of Complaints

All complaints rejected by banks can be entertained by the Banking Mohtasib provided these are not barred by time or records pertaining thereto have not been destroyed by the bank in accordance with its laid down record destruction policies. Rejected complaints may also be sent to Banking Mohtasib along with all related correspondence and the Complaint Form, without the need to give 45 days notice to the concerned bank.

The Banking Mohtasib handles complaints relating to violation of banking laws and regulations, excessive delays and inefficiency, poor service, discriminatory actions, etc.

Appeal Process:

Complainant’s right of appeal A complainant not satisfied with the decision of the Banking Mohtasib has the right to appeal to the Governor, State Bank of Pakistan within 30 days from the date of the order of the Banking Mohtasib. If the complainant does not choose to go into appeal or does not accept the decision of the State Bank of Pakistan in appeal, the complainant has the right to go to a court of law.

Bank’s right of appeal In case a bank is not satisfied with the Banking Mohtasib’s order in the matter of a complaint, it may file an appeal with the Governor, State Bank of Pakistan within thirty days. However, if no appeal is filed, or the State Bank of Pakistan does not uphold the appeal, the Banking Mohtasib’s order shall become final, operative and binding upon the bank.

Benefits of Mohtasib Scheme:

  • Globally a phenomenal success
  • A cost free service
  • Cost effective for both complainants and banks
  • Unlike the courts, legal representation is neither required nor advantageous
  • Accessible, friendly, informal and flexible

  • Complainants retain the right to take the matter to court if not satisfied
  • Ombudsmen are also successful because they may provide remedies where none may be available through the formal system.

The provisions regarding establishment of the office of Banking mohtasib are contained in section 82 of Banking Companies Ordinance, 1962. The respective statutory provisions are reproduced hereunder.

Appointment of Mohtasib: Sec 82-A

  1. 1. There shall be a Banking Mohtasib who shall be appointed by the President in consultation with the Governor of the State Bank of Pakistan.
  2. 2. The Banking Mohtasib shall be a person of high integrity and unimpeachable banking or legal credentials who is not a share-holder of a banking company or financial institution and is not or has not, been a bank defaulter. 
  3. 3. The jurisdiction of the Banking Mohtasib in relation to banking transactions shall be to— (a) enquire into complaints of banking malpractices; (b) perverse, arbitrary or discriminatory actions; (c) violations of banking laws, rules, regulations or guidelines; (d) inordinate delays or inefficiency and (e) corruption, nepotism or other forms of maladministration.
  4. 4. The Banking Mohtasib shall hold office a period of three years and shall not be eligible for any extension of tenure or for re-appointment under any circumstances whatsoever.
  5. 5. The Banking Mohtasib shall not hold nay other office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.

Terms and conditions of the Banking Mohtasib Sec 82-b

  1. 1. The Banking Mohtasib shall be entitled to the same salary and allowances as a Judge of a High Court.
  2. 2. The Banking Mohtasib may be removed from office on the ground that he has been guilty of misconduct or that he is incapable of properly performing the duties of his office by reason of physical or mental incapacity. Provided that he shall have the right to file an appeal before the Federal Services Tribunal.
  3. 3. The Banking Mohtasib shall be provided with a secretariat to be appointed in consultation with the State Bank. Appointments to the Secretariat may be made on deputation from the State Bank of Pakistan or other banks or otherwise on the basis of professional qualifications and the costs of the Secretariat shall be shared by banks in such proportions as may be determined by the State Bank of Pakistan.
    The Banking Mohtasib shall have the power and responsibility—

a) To entertain complaints from customers, borrowers, banks or from any concerned body or organization;

b) To facilitate the amicable resolution of complaints after giving hearings to the complainant and the concerned bank; and

c) In the event that complaints cannot be resolved by consent, to give finding which shall be acted upon in the manner set out herein.

  1. 4. The Banking Mohtasib shall exercise his powers and authority in the following manner:-

a) In relation to all banks operating in Pakistan.— The Banking Mohtasib shall be authorized to entertain complaints of the nature set out herein below:-

  1. a. failure to act in accordance with banking laws and regulations including policy directives or guidelines issued by the State bank from time to time.
  2. b. Provided that if there is a dispute as to the proper interoperation of any regulations, directions or guidelines, the same shall be referred to the State Bank for clarification. delays or fraud in relation to the payment or collection of cheques, drafts or other banking instruments or the transfer of funds;
  3. c. fraudulent or unauthorized withdrawals or debit entries in accounts;
  1. Complaints from exporters or importers relating to banking services and obligations including letter of credits;
  2. Complaints from holders of foreign currency accounts, whether maintained by residents or non-residents;
  3. Complaints relating to remittances to or from abroad;
  4. Complaints relating to mark-up or interest rates based on the ground of a violation of an agreement or of state bank directives; and
  5. Complaints relating to the payment of utility bills.
  1. In relation to banks in the public sector. — The Banking Mohtasib shall be authorized to entertain complaints against such banks on the following additional grounds as well—
    1. i. Corrupt or mollified practices by bank officers;
    2. ii. Gross dereliction of duty in dealing with customers; and
    3. iii. Inordinate delays in taking decisions.

Reference to Banking Mohtasib by Court: Sec 82-C

if at any time during the pendency of a case, a court trying a case relating to recovery of loan by a banking company is of the opinion that the management of the banking company has prima facie acted in a malafide manner, or in violation of banking rules and regulations, it may reference to the Banking Mohtasib for inquiring into the matter and passing such order in accordance with the provisions hereof as may deem fit: Provided that the making of a reference shall not prevent the court from deciding the claim before it on merits.

Procedure for making complaints: Sec 82-D

(1) A complaint shall be made on solemn affirmation or oath in writing addressed to the Banking Mohtasib. The complaint shall set out the full particulars of the transaction complained of and the name and address of the complainant. (2) Prior to making a complaint the complainant shall intimate in writing to the concerned bank his intention of filing a complaint and if the bank either fails to respond, or makes a reply which is unsatisfactory to the complaint, within a period of three months, the complainant may file a complaint at any time thereafter within a further period of three months (3) The Banking Mohtasib may adopt any procedure as he considers appropriate for investigating a complaint: Provided that the shall not pass any order against a bank without first giving it a notice and an opportunity of a hearing. (4) Subject to section 82C, the Banking Mohtasib shall not have any power to issue an order in the nature of a stay order or to entertain any complaints if the matter is pending before a court or other legal forum.

(5) The Banking Mohtasib may reject a complaint summarily or he may accept the same or pass any other order he deems fit:

Provided that in each case he shall pass a reasoned order for his decision 

The Banking Mohtasib shall hold office a period of three years and shall not be eligible for any extension of tenure or for re-appointment under any circumstances whatsoever.

Banking Mohtasib shall not hold any other office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.

Recommendations for implementations 82-E

In the event the Banking Mohtasib comes to the conclusion that the complain is justified, in part or in whole, he shall try and facilitate an amicable resolution or settlement by resort to mediation and failing that communicate his findings to the concerned bank with the direction—

  1. a. to reconsider the matter; to modify or cancel the earlier decision, action or failure to take the appropriate action;
  2. b. To pay reasonable compensation to the complainant as fixed by the Banking Mohtasib;
  3. c. To take the requisite steps to improve the functioning or efficiency of the bank; and
  4. d. To take such other remedial steps or actions as may be specified by the Banking Mohtasib.

The Banking Mohtasib may, in any case, he deems fit or proper, forward a report to the State Bank recommending—

  1. a. An inquiry, or the taking of the requisite steps or legal proceedings against a bank which has acted in violation of banking laws, procedure, regulations or directives of the State Bank; and
  2. b. In the case of a bank in the public sector in cases of banking malpractices or corruption, nepotism or gross and flagrant dereliction by bank officers of their duties and responsibilities, the initiation of such action including a criminal prosecution or disciplinary proceedings as the State Bank may deem fit, either by itself, or through filing a report with the Government of Pakistan.

In no case whatsoever shall be Banking Mohtasib have the power to direct that loans, advances or finances be given to a complainant. (4) Any bank, or official of a bank or a complainant aggrieved by an order passed by the Banking Mohtasib may file an appeal with the State Bank within thirty days which shall pass any order thereon it deems fit. 

Any order passed by the Banking Mohtasib which has not been appealed against, or any order passed by the State Bank in appeal, as the case may be, shall become final and operative and if not implemented shall render the bank concerned to such action including the imposition of a fine or penalty as the State Bank may deem fit, and in relation to a bank officer, to the appropriate disciplinary or other proceedings.

Nothing contained herein shall prevent a complainant from filing a suit against a bank in the event his complaint is rejected.

Power to call for information: Sec 82-F

The Banking Mohtasib shall have the power for purposes of disposing a case, to require a bank to disclose to him any information subject to the following conditions:-

  1. a. The Banking Mohtasib shall make every endeavor to ensure that banking confidentiality is maintained as required by banking law and procedure and shall take no action which is volatile thereof.
  2. b. The Banking Mohtasib may call for any or all such documents which are relevant or pertinent for purposes of deciding a complaint: –Provided that he shall not be entitled to call for unrelated documents or documents which may compromise the bank’s position in relation to other customers:
  3. c. In the event of a bank refusing to furnish information, or copies of relevant documents, the Banking Mohtasib shall not be authorized to compel the bank to comply with his order but he may draw an adverse inference and comment on the same in his findings.

The banking companies rules, 1963

– These rules may be called the Banking Companies Rules, 1963.

– They extend to the whole of Pakistan.

– They shall come into force on such date as the Federal Government may, by notification in the official Gazette, specify in this behalf.

Definitions:

“Ordinance” means the Banking Companies Ordinance, 1962 (LVII of 1962):

“Principal office of the State Bank” means the office of the State Bank to which the returns required under the Ordinance or these rules are to be submitted;

“Principal office of the banking company” means the office of the banking company which shall be responsible for the submission of returns under the Ordinance or these rules:

“Quarter” means a period of three months ending on the last day of March, June, September and December of any year ; and

“Place of business” of a banking company includes any sub-office, pay-office, sub-pay-office or any place of business at which deposits are received, cheques cashed or moneys lent.

List of Officers: Sec 4

A banking company shall, within one month of the commencement of these rules or of the commencement of its business, whichever is later, send to the principal office of the State Bank a written statement containing a list of –

The names, the official designations and specimen signatures of the officers authorized to sign on behalf of the banking company returns required under the Ordinance or these rules; and the names and addresses of the directors of the banking company.

Any change in the list referred to in clause (i) shall be intimated to the principal office of the State Bank within one month of such change.

A banking company incorporated outside Pakistan, which at the commencement of these rules has a place of business in Pakistan, and every such company which after the commencement of these rules establishes a place of business in Pakistan, shall, within one month of the commencement of these rules or of the establishment of such place of business, as the case may be, furnish to the principal office of the State Bank the full address of the principal place of business declared in terms of clause (e) of sub-section (1) of Section 277 of the Companies Act, 1913 and  the name and address of one or more persons resident in Pakistan authorized to accept on behalf of the company any notice or order required to be served on the company under the Ordinance or these rules and shall intimate the principal office of the State Bank any change in such name or address within one month of such change:

Provided that information furnished by a banking company under rule 4 of the Banking Companies (Control) Rules, 1949, shall be deemed to have been furnished under this rule.

Withdrawals of Deposits: Sec 6

The principal office of the State Bank shall not be bound to return securities actually deposited, but may substitute therefore new scrip of securities of the same description and amount.

Changes in deposits: Sec 7

The office of the National Bank of Pakistan holding securities under sub-rule (1) of rule 5 shall permit the withdrawal of foreign approved securities only under instructions from the principal office of the State Bank.

When the form or amount of deposit is changed by reason of a subsequent deposit or withdrawal, the principal office of the State Bank of Pakistan shall, as soon as possible, send to the principal office of the banking company a fresh certificate in Form 1.]

Maturing of security deposits: Sec 8

When a security in deposit matures or when any yield on such a security ceases to accrue, the principal office of the State Bank shall not be bound to inform the banking company; but upon the receipt of a requisition in writing from the banking company, the principal office of the State Bank shall, as soon as possible, collect the discharge value and hold the amount in deposit for purposes of sub-section (3) of section 13 of the Ordinance.

Interest on deposits: Sec 9

No interest shall be payable on cash deposits

The principal office of the State Bank shall credit, as soon as possible, the current account of the banking company maintained with it with the interest realised on securities subject to the usual charges.]

Licensing of banking companies: Sec 10

A company desiring to have a license under section 27 of the Ordinance shall apply to the Director, Banking Control Department, State Bank of Pakistan, Central Directorate, Karachi.

In Form IV in the case of a company incorporated in Pakistan and desiring to commence banking business; In Form V in the case of a company incorporated in Pakistan and in existence at the commencement of the Ordinance;In Form VI in the case of a company incorporated outside Pakistan and desiring to commence or carry on banking business in Pakistan.

Opening of new places of business: Sec 11

An application by a banking company for permission to open a new place of business or change the location of an existing place of business under Section 28 of the Ordinance shall be submitted in form VII to– the Director, Banking Control Department, State Bank of Pakistan, Central Directorate, Karachi in the case of banking companies having their principal offices in West Pakistan, and the Deputy Chief Officer, Banking Control Department; State Bank of Pakistan, Dacca, in the case of banking companies having their principal offices in East Pakistan.

List of offices: Sec 12

A banking company shall, within a period of one month from the close of every quarter, send to the principal office of the State Bank a list in Form VIII of all its offices in Pakistan at which it was doing business during that quarter.

Manner of publication of accounts and balance-sheet: Sec 14

The balance-sheet and profit and loss account prepared in terms of Section 34 of the Ordinance together with the auditor’s report shall be published within a period of six months from the end of the period to which they relate in a newspaper which is in circulation at the place where the banking company has its principal office.

Explanation.—For the purposes of this rule, the expression “newspaper” means any newspaper or journal published at least once a week, but does not include a journal other than a banking, commercial, financial or economic journal.

List of Debtors: Sec 15

The list of debtors under Section 63 of the Ordinance shall be in Form XIII or as near thereto as circumstances permit.

Power to exempt in certain cases: Sec 16

The Federal Government may, on the recommendation of the State Bank, declare by notification in the Official Gazette that any or all of the provisions of these rules shall not apply to any banking company or to any class of banking companies either generally or for such period as may be specified.

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