2004 PLP 913 (CLD)

Saalim Salam Ansari for Applicant. Arshad Tayebaly for Respondent No.

1. Khawaja Muhammad Amir for Respondent No.2. This transfer application has been moved on behalf of the applicant who filed a suit which is Suit No.B‑20 of 2002 pending in the banking jurisdiction of this Court. This is a suit for declaration(s), permanent injunction(s), redemption/release of mortgage property/ hypothecations/securities, recovers‑ of excess paid amount of PKR 51,649,261 only and US Dollars 209,850 only with cost of fund of, mark up + costs) and consequential relief(s) under section(s) 9 of the Financial Institutions (Recovery of Finances), Ordinance No. XLVI of 2001. The cause of action for the suit was the export refinance facilities granted by respondent No.1 to the applicant. In respect of the same export refinance facilities respondent No.1 has filed a suit being Suit No.297 of 2001 for recovery of Rs.48,959,776 which is pending in Banking Court No.III, Karachi. The contention of Mr. Saalim Salam Ansari, Advocate appearing on behalf of the applicant is that the cause of action giving rise to the aforesaid suits is one and the same i.e. export refinance facilities granted by respondent No.1 to the applicant, It is the contention of the applicant that he had repaid the amount utilized by him in pursuance of the above export refinance facilities and as a matter of fact had made excess payment for which the suit had been filed. The contention of Mr. Arshad Tayebaly, Advocate appearing on behalf of respondent Bank is that the funds utilized by the applicant under the aforesaid finance facilities have not been repaid, for the recovery of which the Bank was forced to file the above suit. Both the learned counsel conceded that the cause of action giving rise to the above two suits was one and the same and similar and identical questions and issues are involved for adjudication in both the above suits. The anxiety of Mr. Arshad Tayebaly is that in suit No.B‑20 of 2002 evidence of applicant Nazim‑ud‑Din has been recorded, cross‑examination has been completed and the matter is now fixed for the evidence of bank's officers/representatives; whereas in Suit No.297 of 2001 application for leave to defend the suit has not yet been decided and in view of the above, the respondent Bank is likely to suffer as consolidation of suits will result in inordinate delay in disposal of the bank's suit. In the first place, this is no ground for refusing permission for two identical suits between the same parties before one and the same Court and secondly this situation can be brought to the notice of the learned Judge on the banking side of this Court and appropriate measures can be taken to ensure that the suit of the Bank is not unnecessarily delayed or prolonged. With the above observations, this transfer application is allowed. Suit No.297 of 2001 pending in Banking Court No.III, Karachi stands transferred on the banking side of this Court to proceed alongwith Suit No.B‑20 of 2002. M.B.A./N‑149/K Application allowed.