P L D 1977 Supreme Court 457 (PLP)

After hearing the learned counsel for the parties at some length we have formed the view that there is no merit in any of these submissions. As to the maintainability of the suit, we have already stated that this point was previously agitated by the petitioner in Civil Petition No. 176/75, but his plea was rejected. It is true that the Court was careful to say that this was only a tentative finding and the petitioner was not precluded from agitating this point in the final appeal. We have accordingly once again examined the relevant provisions of the Banks Nationalisation Act, 1974, and we find that the view previously formed by this Court in this behalf was fully justified. The relevant sections of the Act are sections 5, 15 and

16. They are reproduced here for facility of reference "

5. Transfer and vesting of ownership etc. of banks.-(l) The ownership, management and control of all banks shall stance transferred to, and vest in, the Federal Government on the commencing day. (2) All shares in the capital of a bank held by persons other than the Federal Government, a Provincial Government, a corporation owned or controlled by the Federal Government or the State Bank shall stand transferred to, and vest in, the Federal Government on the commencing day, free of all trusts, liabilities and encumbrances. (3) The vesting of any shares in the Federal Government under subsection (2) shall not affect the rights inter se of a shareholder and any other person who may have an interest in such shares and such other person shall be entitled to enforce his interest against the compensation awarded to the shareholder under section 6. (4) The safety of all deposits in banks shall stand guaranteed by the Federal Government. (5) The provisions of this Act and the vesting of the shares of the banks in the Federal Government thereunder shall not in any way affect the status of the banks as bodies corporate under the Companies Act, 1913 (VII of 1913).

15. Schemes for reorganisation of banks etc.-(1) The. Council may, in consultation with the State Bank and with due regard to the interest of the depositors, prepare a scheme for improving the management and operation of a bank or group of banks to serve the needs of development of the economy. (2) A scheme prepared under subsection (1) may Inter alia provide for all or any of the following matters, namely: (i) the reconstitution of a bank or a group of banks into a new bank registered under the Companies Act, 1913 (VII of 1913), or a Corporation incorporated under a Federal law, the amalgamation of two or more banks or the merger of one or more banks in another bank; (ii) formulation or reformulation of memorandum or articles of association of a bank or reconstituted or amalgamated bank; (iii) modification of the capital structure of a bank or reconstituted, or amalgamated bank; (iv) additions to or deletions from the kind of business in which a bank may engage and the places where it may carry on its business; and (v) changing the name of an existing bank or naming a reconstituted or amalgamated bank. (3) A scheme prepared under subsection (1) shall be submitted to the Federal Government for approval and shall. after it has been approved by the Federal Government, with or without modification, be published in the official Gazette and shall take effect on such date, as may be specified therein. 16.? Removal of doubts.-For the removal of doubts, it is hereby declared that (a) all assets, rights, powers, authorities and privileges and all property, movable or immovable, cash balances, reserve funds, investments and all other rights and interests arising out of such property as were immediately before the commencing day in the ownership, possession, power or control of a bank, whether within or outside Pakistan, shat), unless other provisions are made for their predisposition in accordance with m scheme prepared under subsection (1) of section 15, continue to vest? in that hank, and all borrowings, liabilities, including contingent liabilities, and obligations of a bank of whatever kind subsisting immediately before the commencing day shall , unless other provisions as aforesaid are made for their discharge or performance,, continue to be the borrowings, liabilities and obligations of that bank; (b) all contracts, deeds, agreements, powers of attorney, other than those in favour of a person vacating his office under this Act, grant of legal representation and other instruments of whatever kind subsisting or having effect immediately before the commencing day to which a bank is a party or which are in favour of a bank shall be of as full force and effect against or in favour of a bank as they were immediately before the commencing day; and (c) if, on the commencing day, any suit. appeal or other legal proceeding of whatever nature which is by or against the bank or to which the bank is a party is pending in any Court or before a tribunal or other authority, the same shall not abate, be discontinued or be, in any way, prejudicially affected by any provision of this Act." It will be seen that even though under subsection (1) of section 5, the ownership, management and control of all the banks stands transferred to, and vests in, the Federal Government with effect from the commencing day, yet subsection (5) of the same section makes it clear that the provisions of this Act and the vesting of the shares of the banks in the Federal Government thereunder shall not in any way affect the status of the banks as bodies corporate under the Companies Act, 1913. Section 16 of the Act has further placed the matter beyond doubt by stipulating that all assets, rights, powers as well as liabilities shall continue to be those of the bank concerned and similarly, all contracts, deeds, agreements, powers of attorney etc. shall C be of full force and effect against or in favour of a bank as they were immediately before the commencing day, and pending legal proceedings shall continue without in any way being prejudicially affected by the provisions of this Act. In the face of these provisions it is difficult to accept the view that as a result of the nationalisation of the banks all contracts and litigation should be in the name of the Federation as required by Articles 172 and 174 of the Constitution a4 well as section 79, C. P. C. The Act under which the nationalisation has been undertaken, itself makes special provisions in this behalf, and we see no reason why they should not be given full effect. In this view of the matter, we would endorse the view taken in this behalf by a Division Bench of the former High Court of Sind & Baluchisian in Badruddin Mavani v. Messrs Commerce Bank Limited (P L D 1975 Kar. 182). As to the locus standi of the Muslim Commercial Bank limited, the matter is covered by the scheme notified by the Banking Council on the 8th of April 1974 under section 15 of the Act regarding the reconstitution of the banks. It is not disputed that in this reconstitution the Premier Bank Limited has been merged with the Muslim Commercial Bank Limited, with the result that the latter has become a successor-in-interest of the Premier Bank Limited for all purposes, Including the present litigation. The learned trial Judge was, therefore, right in permitting the substitution of the Muslim Commercial Bank Limited in place of the original plaintiff. On the question of limitation, we again have a previous order of this Court in Civil Petition No. 29-R of 1975 which was dismissed on the 13th of August 1975, holding that section 19 of the Act was applicable in vie of the two acknowledgments in writing made by the petitioner in favor of the plaintiff. This order would appear to be res judicata between the parties, and the petitioner cannot be permitted to reagitate the same point once again in the present proceedings. However, learned counsel for the petitioner submitted that this order needed to be reviewed as it referred to Articles 158 and 159 of the Schedule to the Limitation Act, which were not directly relevant in this context, as the period of limitation in the present suit was governed by Article 64-A of the said Schedule. He further contended that there was authority for the view that section 19 was not applicable to a summary suit under Order XXXVII, rule 2 of the Code of Civil Procedure. We do not think that in the present proceedings we can review an order made by this Court on a previous occasion, when that order has become final between the parties on the controversy in question, namely, the question of limitation. We have no doubt at all that reference tot' Article 158 and 159 is only a clerical error, as the controversy brought before the learned Judges in that petition clearly related to a suit governed by Article 64-A, and it was in this context that they expressed the view that the acknowledgments relied upon by the plaintiff brought the matter within purview of section 19 of the Limitation Act. We consider, therefore, that the question of limitation stands already decided by this Court in this case by its order dated the 13th of August 1975. It is correct that the learned Judges composing the Division Bench which decided the petitioner's appeal had previously dealt with the case in their individual capacity, but they had not passed the final decree which was brought under appeal before them. It would perhaps have been more appropriate if the appeal had been placed before another Bench, but as the view taken by the learned Judges in the order under appeal on all the disputed questions is being upheld by us, this is not a fit case for being remanded for a rehearing of the appeal on this ground. For the foregoing reasons, the petition fails and is hereby dismissed. S. A. H.?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.