2011 PLP 529 (CLD)

MUHAMMAD TASNIM, J.

1. This is an application under Order I, Rule 10 read with section 151, C.P.C. filed by defendant No.2, praying therein that defendant No.2 Messrs EFU General Insurance Ltd., may be deleted from the array of defendants. Brief facts leading to the present suit are summarized as under: Plaintiff No.1 is partnership firm and plaintiff No.2 is the owner of the mortgaged property. The plaintiffs obtained finance from the defendant No.1-bank and opened an L.C. for import of goods from abroad. A part of the imported goods were pledged with the defendant No.1-bank. It is further case of the plaintiff that defendant No.1-bank filed suit being Suit No.B-225 of 2000 against the plaintiffs before this Court in its banking jurisdiction and such suit was decreed in favour of defendant No.1-bank. It is further case of the plaintiffs that pledged goods, which were in custody of defendant No.1, were damaged due to drain-water entered in Godown, which has caused loss to the plaintiffs. It is further stated in the plaint that goods so pledged with defendant No.1-bank were insured with defendant No.2-Insurance Company. Plaintiffs requested the defendant No.1-bank to initiate legal proceedings for recovery of Money and Damages against defendant No.2 and on refusal by defendant No.1-bank present suit was filed by the plaintiffs against defendant No.1-bank as also defendant No.2-Insurance Company for recovery of Amount, Declaration, Mandatory & Permanent Injunction and Damages under Financial Institutions (Recovery of Finances.) Ordinance, 2001. After notice of this application, plaintiff has filed counter-affidavit denying allegations of the defendant No.2 and maintained that defendant No.2 no doubt is Insurance Company, but is necessary party. It was maintained in the counter-affidavit that application be dismissed and name of defendant No.2 may not be allowed to be deleted. In support of his contention, learned counsel for defendant No.2 has invited my attention to the provision of Section 122 of the Insurance Ordinance, 2000, whereby Insurance Tribunal has been created, which enjoys the powers of Civil Court to entertain the claim of policy-holder against Insurance company in respect of, or arising out of a insurance policy, such Tribunal is vested with all powers under Civil Procedure Code, 1908. In view of above referred provision of the Insurance Ordinance, 2000 learned counsel for defendant No.2 says that this application be allowed and name of defendant No.2 be deleted as Special Tribunal has been created for policy-holders to settle their disputes with the Insurance Company. Learned counsel for defendant No.2 has also invited my attention to the provision of section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. A perusal whereof shows that where a customer or financial .institution commits default in fulfillment of any obligation with regard to any finance, financial institution or, as the `case may be, the customer may institute suit in the Banking Court by presenting a plaint. Learned counsel for defendant No.2 submitted that section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 speaks about two parties only, i.e. a Banking- Company and the Customer, but no other party can be joined in proceedings, which are initiated under the Provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001. He further says that this application be allowed as prayed for. On the other hand learned counsel for plaintiff has argued that defendant No.2 is necessary party as policy was issued by said Company. He further submits that plaintiff had asked defendant No.1-Bank to initiate legal proceedings against defendant No.2, but Bank did not take any action. In the circumstances, plaintiff was forced to initiate present proceedings in this Court under the Banking jurisdiction. Learned counsel for plaintiff in support of his contention has placed his reliance on a case of Messrs Bengal Wool House and others v. The Standard Insurance Co. Ltd. and others (1989 CLC 839) and has submitted that in a matter where policy of insurance has been issued through a Bank and some claim is raised by the Insured against the Insurance Company, in that event Insurance Company and the Bank both are necessary parties. He says that in view of above referred judgment, he has joined defendant No.2 as party to the present proceedings. Learned counsel further says that this case cannot be effectively decided unless defendant No. 2 remains in the proceedings. I have heard the learned counsel for the parties and have perused the record as also relevant provisions of law and the case law cited at the bar. An examination of the plaint more particular the prayer-clause would indicate that plaintiff has claimed certain relief, which can only be granted in banking jurisdiction as plaintiff was a customer of defendant No.1. It is also admitted position that defendant No.1 had initiated some legal proceedings against present plaintiff in the banking jurisdiction. It is also admitted position that a decree was passed in favour of defendant No.1 against the present plaintiff. An examination of provisions of section 122 of the Insurance Ordinance, 2000 would show that a Special Court has been created to settle the claims of policy-holder against the Insurance Company and such Tribunal is vested with powers of Civil Court in terms of Civil Procedure Code, 1908. Learned counsel for plaintiff has relied upon the above referred case, which pertains to regular suit decided by this Court in original jurisdiction. It was not a banking suit hence the case cited by the learned counsel for plaintiff is distinguishable on facts and does not improve the case of the plaintiff. The grievance of the plaintiff is that if defendant No.2 is deleted from the array of the defendants, as he has some claim against defendant No.2, he would not be able to get the relief against defendant No.2. In reply learned counsel for defendant No.2 has submitted that plaintiff may delete defendant No. 2 from the present proceedings and may draw proceedings under the Insurance Ordinance, 2000 before the appropriate forum. In view of provisions contained under section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the defendant No.2 is not necessary party as present proceedings are under the Financial Institutions (Recovery of Finances) Ordinance, 2001. Accordingly this application (C.M.A.No.9414 of 2007) is allowed. Defendant No.2 is ordered to be deleted. Plaintiff is directed to file amended title within seven days' time from today. Since these proceedings are pending since 2005 and defendant No.2 has been deleted today. The plaintiff shall be at liberty to file legal proceedings against defendant No.2 in accordance with law before the appropriate Tribunal. It is further observed that if proceedings are initiated by plaintiff against defendant No.2 before the appropriate forum in f accordance with law, same be decided strictly in accordance with law. He is also free to make an application for condonation of delay before such Tribunal or Court under section 14 of the Limitation Act and such application shall be decided by said forum strictly in accordance with law. However the point of limitation in approaching the Tribunal shall be dealt with sympathetically. With these observations the application is disposed of. At this stage learned counsel for plaintiff prays that since defendant No.2 has been deleted from the array of defendants, he may be allowed to file an application under Order VI, Rule 17, C.P.C. for amendment of plaint. Learned counsel may file such application, which will be decided in accordance with law.

2. Deferred. A.R.K./A-140/K Application allowed.