2016 PLP 2190 (CLD)

AZIZ-UR-REHMAN, J.

Against the Defendants, on 7.5.2014, 'ex parte order' has already been passed, therefore, no fresh 'ex parte order' needs to be passed against the Defendants.

2. Through this application under Order I, Rule 10 read with section 151, C.P.C., bearing C.M.A. No.12867/2013 one Khurshid Humayun wife of Humayun Kabir, is seeking her joining as Defendant No.5 in the above suit. Per version of the applicant/intervener she has purchased Flat No.2 situated on plot of land bearing No.Com-5, 384 sq. yds. situated at Block No.5, Survey Sheet No.35/P-1, Karachi duly leased vide registered No.M.F. Roll No.U-80476/2174 dated 3.12.2004. By K.A.E.C.H. Society in favour of the Defendant No.2, who has constructed residential flats including said Flat No.2 vide Agreement dated 22.12.1988. Learned counsel for the Applicant/intervener also contends that the applicant/intervener has also filed Civil Suit No.1586/2012, for Declaration, Injunction as well Damages against the Plaintiff Bank and Defendant No.2. Per learned counsel for the Applicant/Intervener herein the act of mortgaging of the 'subject property' also falls within the scope of Ordinance, 1984 i.e. 'Offence in respect' of Banks [Special Courts], Ordinance, 1984. On the other hand, learned counsel for the Plaintiff Bank forcefully contended that the land involved has been duly mortgaged by the Defendant No.2 through equitable and registered Mortgages in favour of the Plaintiff Bank long ago i.e. in the year, 2004 regarding facilities granted to and availed by Defendant No.1 in the above suit. Moreover, the alleged agreement of 'sub-lease' dated 22.12.1988 was executed between one Mrs. Aziza Begum wife of Mohammad Zaki and Mohammad Jamil Defendant No.2 herein but surprisingly Mrs. Aziza Begum has not been made party in Suit No.1586/2012 filed by the present applicant/intervener. Learned counsel for the Plaintiff Bank further contended that the applicant/intervener is not a 'customer' of the Plaintiff Bank as such does not fall within the purview of section 9 of the F.I.O., 2001, thus cannot be joined in the instant suit as a party. Being relevant, section 9 of the F.I.O., 2001 reads as follows:- '

9. Procedure of Banking Courts.

[1] Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other office of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise.' It is significant to note that present suit has been filed under section 9 of the F.I.O., 2001 for recovery of Rs.839,079,537/= along with cost of funds, cost of suit, sale of mortgaged properties etc. including the 'subject plot of land'. Since, the intervener has already filed suit against Plaintiff Bank and Defendant No.2, therefore, the applicant/intervener is at liberty to proceed with the said suit regarding her alleged claim but she has no concern with the present suit filed by the Plaintiff against the Defendants as the intervener being not a 'customer' of the Plaintiff Bank in the present suit, is neither a necessary nor a proper party to be impleaded in the present suit. Moreover, the objections of the intervener, if any can appropriately be seen and considered under section 19 of F.I.O., 2001 at the execution stage. In view of the above, the listed application under Order I, Rule 10, C.P.C. read with section 151, C.P.C. [C.M.A. No.12867 of 2013] at this stage deserves no merits as such stands dismissed, however, with no order as to cost. MH/N-4/Sindh Application dismissed.