P L D 1999 Karachi 1 (PLP)

The jurisdiction under Act XV of 1997 evidently is exercised by this Court as the Banking Court created under the said law. The powers of this Court as a Banking Court and the procedure for hearing cases is separately provided under the said Act and the Code of Civil Procedure applies only to the extent of matters not provided by the Act. The question about nature of jurisdiction exercised under Special Laws in contradistinction to the original civil jurisdiction was examined in depth in the case of Pakistan Fishries Limited v. U.B.L. PLD 1993 SC 109 with the following conclusion:- "It seems to us that by the expression 'original civil jurisdiction' as used in the Ordinance, is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some of the High Courts in the Sub-Continent, but has been employed in contradistinction to the appellate and revisional jurisdiction exercised by the High Court. The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature. By virtue of subsection (4) of section 6 in all matters to which under the Ordinance, the jurisdiction of the Special Court extends, no Court other than the Special Court can have jurisdiction to deal therewith. Furthermore, section 11 attaches finality to the orders and categorically lays down that subject to provision for appeal under section 12, no Court or other authority shall call in question or permit to be called in question any order or judgment of the Special Court. Evidently, the Legislature in its anxiety to protect the orders of Special Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in section 12, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and orders passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of section 12. " Similarly, in Civil Appeal No.193-K of 1992 (Ashira Khatoon v. M.C.B. and others, the appeal preferred by leave under Article 185(3) of the Constitution against an order passed by a learned Single Judge of this Court acting as Special Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 was dismissed as not maintainable on the ground that the order was passed by the Special Court envisaged under section 2(8) of the said Ordinance and not by the High Court. 'The term "original civil jurisdiction" signifies identified class of cases and does not include the cases entertained as Special Court under section 2(b) of Act XV of 1997. This Court, therefore, while hearing matters under Act XV of 1997 does not act as High Court in exercise of its original civil jurisdiction but as a Special Court set up under the said Act. Resultantly, exclusion of the principles contained in sections 16 and 20, C.P.C. on the basis of section 120, C.P.C., I am afraid, cannot be urged. The language of proviso to A section. 16, C.P.C. is also pertinent in this respect. Under the proviso, ` notwithstanding the doctrine of lex suits having been incorporated in section 16, C.P.C., a suit to obtain relief respecting immovable property held by or on behalf of the defendant may, at the option of the plaintiff, be instituted in the Court within the local limits of whose jurisdiction the defendant carries on business. The explanation appended to section 16, C.P.C. however, makes the, above provision applicable only to the properties situated in Pakistan. Even so, the exception contained in the proviso and the doctrine prescribed by the section itself can be applied by reference to Common Law principles. On such basis, the learned counsel for the defendant has aptly referred to the principles stated by Dicey in his treatise on the Conflict of Laws (VIIth Edition) to contend that as to immovables, the general rule is that lex situs is the governing law for all questions that arise with regard to such property. The admitted position in the present case is that all the immovable properties, in relation whereto the final relief of injunction is sought, are situated in the United Kingdom. To controvert the above position, the learned counsel representing the plaintiffs has referred to the exceptions to the above stated rule of lex situs. It is urged that the defendant bank had acted fraudulently in procuring documents pertaining to the immovable properties in question, and therefore, jurisdiction in personam can be exercised by this Court. By referring to the various passages from Cheshire and North's Private International Law (12th Edn.) by P.M. North and J.J. Fawacett, quoted with approval by Noorul Arfeen, J. (as he then was) in Yousuf Abbas v. Ismat Mustafa PLD 1968 Kar. 480, it is contended that exercise of jurisdiction in relation to the immovables located in the United Kindgom is justifiable. I may reproduce here, with advantage, the following portion from the cited case: "

10. As to immovables, the general rule is recognised in England that lex situs is the governing law for all questions that arise with regard to such property. Cheshire says: 'An English Court has no jurisdiction to adjudicate upon the right of property in, or the right to possession of foreign immovable', even though the parties may be resident or domiciled in England and that 'this rule is generally based upon the practical consideration that only the Courts of the suits can make an effective decree with regard to land'. However, the rule that lex situs governs immovables, is subject to modifications which have been formulated by Dicey amongst others, in the rule 18 with Exceptions 1 and 2, rule 25, and rule 85 with Exception 9, which are relevant to the present controversy and which it will be convenient to reproduce here:- 'Rule

18. Sutject to the Exception hereinafter mentioned, the Court ha, no jurisdiction to entertain an action for-- ?????? ` (1) the determination of the title to, or the right to the possession of, any immovable situate out of England (foreign land), or (2) the recovery of damages for trespass to such immovable. Exception 1.--Where the Court has jurisdiction to entertain an action against a person under either rule 25, or under any of the Exceptions to Rule 26, the Court has jurisdiction to entertain an action against such person respecting an immovable situate out of England (foreign land; on the ground of either-- ' (a)? a contract between the parties to the action; or (b)? an equity between such parties; with reference to such immovable Exception 2.--Where the Court has jurisdiction to administer an estate or a trust, and the property includes movables or immovables situated in England and immovables situated abroad, the Court has jurisdiction to determine questions of' title to the foreign immovables for the purposes of the administration. Rule 25.--When the defendant in an action in personam is, at the time for the service of the writ, in England, the Court has jurisdiction it respect of any cause of action in whatever country such cause of action arises, subject however in the case of actions under the Carriage by Air Act, 1932, or in respect of claims to which section 4 of the Administration of Justice Act, 1956 applies, to the limitations there respectively contained. Rule 85:--All rights over, or in relation to, an immovable (land) art (subject to Exceptions hereinafter mentioned) governed by the law o: the country where the immovable is situate (lex situs). Exception 9:--The question whether a legatee of movables under a will must elect between the legacy and foreign land is determined by the law of the testator's domicile. If a testator devises foreign immovable property (foreign land) under a will which on any ground is inoperative to pass the same to the devisee, and also either- (1)?????????? devises English immovable property (English land) to the heir of the foreign immovable property, or (2)?????????? being domiciled in England, bequeaths movable property wherever situate to the' heir of the foreign immovable property, the Court will not allow such heir to take any benefit under the will as regards (1) the English immovable property, or (2) the movable property, unless he fulfils the conditions of the will with respect to the foreign immovable property or compensates for his failure to do so; i.e. the heir is put to his election.

11. Thus the rule that immovable are governed by the lex situs will have no application: , (i)???????????? Where the Court exercises equity jurisdiction in personam, that is, where the issue before the Court is one of a personal obligation enforceable against the person of the defendant, which jurisdiction, according to Cheshire is exercisable in cases of: (a) Contracts relating to foreign lands; (b) Fraud and other unconscionable conduct on the. part of the defendant; and (c) Fiduciary relationship, 'that is, cases where the issue involves enforcement of trusts or personal equities between the parties. (ii)?????????? Where the estate being administered by the Court includes both property within, and outside the jurisdiction, in which case the Court is competent to determine questions of title to foreign immovables. (iii)????????? Where the heir of foreign immovables is put to election, that is, where a will comprising foreign immovables, and immovables and/or movables within jurisdiction, fails with regard to foreign immovables, in which case the heir at law must either take the benefit under the will with regard to movables and immovables within jurisdiction subject to the conditions of the will with regard to foreign immovables, or he must compensate for his failure to do so. This exercise of jurisdiction over immovables located within foreign - jurisdiction is justifiable on the ground that the Court can make its adjudication effective through its control of the defendants or of. deceased's assets, if both or either are within the jurisdiction. " To the same effect is the judgment in the case of Samaj 1934 Sindh 123 wherein it was held that question of fraud in transactions pertaining to immovable properties situated abroad can be examined by the Courts in India. The above stated principle of law is clear from doubts and proceedings seeking enforcement of rights in? personam can always be instituted in Pakistani Courts even if the 8 result affects immovable properties situated abroad. The underlying idea, it seems, is to ensure avoidance of vexation and oppression. The principle of prudence, emerging from the above, is that this Court does not have jurisdiction to entertain an action for the determination of the title to or regulate the possession of and manage an immovable property situate out of Pakistan subject to certain exceptions. One of the recognized exceptions to the said rule is the case of fraud and other unconscionable conduct on the part of the defendant. Now, the principles of pleadings require a plaintiff to state the particulars of fraud with exactness and details. Such particulars in the present case, I must say, are wanting. The plaint does not show what fraud, receipt or misrepresentation had lured the plaintiffs into the transactions, to render the defendant's conduct unconscionable. The delayed remittance of money to Pakistan or debiting wrong account could well lead to incidence of negligence and resultant liability for damages, whereas fraud necessarily envisages assertion of factual nature with knowledge as to its falsity or omission to assert fact with intent to cheat other(s). The present case, therefore, for the relief of injunction, does not qualify for being classified as one falling within the ambit of abovestated exception to the rule of lex situs. Indeed, I cannot remain completely oblivious of the transactions between the parties, out of which the obligation to account or to pay arose. In the present case the various acts alleged in the plaint had manifestly taken place at London which appears to be the place with which the transactions had the natural and most real connection. However, these are merely the rules of convenience or propriety which are rather alien to the question of jurisdiction. Moreover, as regards the properties of Valuegold, after its exclusion from the proceedings through order dated 27th October, 1997, no relief can, in my view, be sought by the remaining plaintiffs whose status is merely of shareholders of Valuegold or its former Directors. Here it appears pertinent to consider if the cause of action for continuing the present proceedings subsists after deletion of Valuegold. Mr. Vellani's contention is that the present plaintiffs did not possess any existing right which had been infringed or threatened to be infringed and consequently, the plaint was liable to rejection for want of cause of action. It is further urged that if at any given time, cause of action ceases to subsist or bar under any contemporary law comes into operation and that position is discernible from the plaint itself, the proceedings must not be allowed to continue any further. Reliance for the above, is placed on the view expressed in University of the Punjab, Lahore v. Syed Mohsan Tirmizey PLD 1958 (W.P.) Lah. 943; Sardar Balbir Singh v. Atma Ram Srivastava AIR 1977 All. 211; Abdul Rehman v. Wahid Bakhsh and 9 others PLD 1977 Lah. 1243 and Diamond Rubber Mills v. Pakistan Television Corporation Limited and 2 others 1989 CLC 1989. In the last-mentioned case, following observation was referred with some emphasis: "The principle is that while a suit is to be dealt with at all its stages, on the cause of action as it exists at the date of its commencement yet a Court, both at primary and appellate stages, may take notice of intervening events and afford relief on the basis of altered conditions. Thus if on a meaningful

nor formal

reading of the plaint it is found to be meritless, as not disclosing a cause of action or a clear cut relief, duly based, the power under Order VII, Rule 11, C.P.C., would be clearly attracted. " , Mr. Pirzada, in reply, has asserted the plaintiffs' right as the exclusive shareholders and submits that the veil of incorporation of Valuegold having already been pierced, the plaintiffs enjoy a very special status vis-a-vis the company. Contextually, reference is mad- to the judgment in Haji Muhammad Khan v. Muhammad Younus and 2 others 1991 SCMR 2030 holding: "The vagueness of the ,plaint, of the relief claimed, the deficiency in the court-fee, the defective form of suit, the repugnancy of the compromise to the Islamic principles and the question of limitation are all questions which arise. only when there is a cause of action. If there is no cause of action, all these subsequent questions do not arise. The test of pause of action is that if what the plaintiff states is taken to be correct does, it entitle him t9 a relief or not in law . ... ... ... ... ... ... .. . ... ... ... ... ... ...If it is held that the claim is not within time, the parties were not parties to the compromise, the compromise is not in accordance with the low applicable to the parties, then it .is a decision on merits which must take place in proper form. If there was found any defect in the flame of the suit or deficiency in court-fee, then an opportunity had to be allowed to the party to correct that defect and to remove the deficiency." The abovestated principle, applied to the present case, does not leave much to dilate upon and a fair and meaningful reading of the plaint shows, per se, the plaintiffs have asserted cause of action with sufficient details. The vagueness and defects in the plaint pointed out by Mr. Vellani, are attributable to the informal manner of pleadings, usually noticed in the drafting of a non-Karachite counsel in our country. Such defect is always curable. The non joinder of receivers or the liquidators, again, cannot result in rejection of plaint as postulated under Order I, rule 9 of the Code of Civil Procedure. Notably, the factum of .Valuegold having gone under liquidation, the appointment of liquidators to manage its affairs and vesting the management and control of Valuegold in the liquidators, although resignedly disputed by the plaintiffs, appears to have been acted upon by them when application under Order I, Rule 10, C.P.C. for deletion, of Valuegold from the present proceedings was filed. The plaintiffs, however, have opted not to amend the contents of the plaint and have rather, made motion for proceedings against the bank alleging disobedience of injunction. Reverting to the plaintiffs' locus standi, it is axiomatic that a shareholder does not enjoy any right to agitate what is commonly known as corporate rights vis-a-vis the company of which he/she is a member. The various resolutions pertaining to management of the company are binding upon the shareholders who can seek enforcement of their individual rights alone to which entitlement is recognized by the Articles of Association of the Company and the statutory contractual rights conferred under law. The shareholders, in contradistinction to the status of Directors who are in fiduciary relationship with the company, cannot agitate against infringement of corporate rights enjoyed by a company. I am supported in this view by the opinion expressed by Saleem Akhtar, J. as he then was, in Haroon Ayoob Abdul Karim v. Suleman and others 1983 CLC

162. In any event, after appointment of liquidator(s), the management of the company under liquidation, vests in the former who alone are authorised in law to bring an action on behalf of the company under liquidation for protection of its interest. The present plaintiffs, therefore, cannot seek relief pertaining to the properties belonging to Valuegold and even a direction in the nature contained in Fargro Limited v. Godfery and others (1986) 3 AER 279 requiring the liquidators to seek relief for the benefit of Valuegold, cannot be given for the simple reason that the latter are not party to the present proceedings and have apparently been kept away quite wilfully. The present plaintiffs cannot sue derivatively on behalf of Valuegold without impleading the' company itself through the liquidators. Reverting to the relief of injunction pertaining to the personal properties of the two plaintiffs, the impugned action? has evidently been taken under the English Law in their capacity as the mortgagors. The Receivers who have undertaken action pursuant to their appointment in terms of clauses 5 and 6 of the Mortgage Deeds are not party to the present proceedings and as already observed, the relief of injunction against the defendant-bank or its agents and subordinates does not fall within the exceptions pointed out by Noorul Arfeen, J. in the case of Yousuf Abbas (supra). The liability of the present plaintiffs, as mortgagors, is co-extensive with that of Valuegold and I have not found any allegation of fraud and other unconscionable conduct, even innuendo, committed by the defendant-bank pertaining to the mortgages executed by the plaintiffs. All the allegations of fraud and unconscionable or unprofessional conduct on the part of the defendant have been made pertaining to the transactions between Valuegold and the bank. The company Valuegold having consciously been deleted from the present proceedings and the liquidators who, in law, alone, could represent Valuegold, having not been joined, this Court cannot embark upon an enquiry relating to the issues involving the defendant-bank and Valuegold which is a total stranger hereto. The well-established principle of lex situs, in the circumstances, is attracted to the present case in regard to the relief of injunction. The learned counsel for the defendant-bank has rightly referred in this behalf to the dictum contained in the cases of Haroon Ayoob Abdul Karim (supra) and Hamid Hassan and others v. Mst. Saleha Begum and others 1990 CLC

991. In the former case which pertained to accounts of a company business at Rangoon, it was averred that the head office was situated at Karachi. Notwithstanding such assertion, upon finding that no fiduciary relationship between the parties had been established, the learned Judge of this Court held that this Court could not interpose its authority on the defendants pertaining to the matters and properties located abroad and in possession of strangers to the suit. The following observation contained in para. 25 of the judgment may be reproduced with advantage:- "

25. It is not every action where mere presence of the defendants within the jurisdiction of the Court vests the Court with jurisdiction to pass a decree in respect of properties situate outside the jurisdiction. The account relates to a company which has its branch office at Rangoon. All the records of business were at the material time at Rangoon except the copies of the balance sheets which are available at Karachi and have been filed in Court. In 1961 the Government of Burma took over the company and the entire record and properties are in its possession. In the circumstances even by obedience of the defendants no effective order can be passed. In the present suit no fiduciary relationship between the parties has been established nor the defendants are liable to render accounts. In these circumstances the Court will have no jurisdiction to interpose its authority on the defendants in respect of matters and properties which are situated outside the jurisdiction of the Court which are not in the control and possession of the defendants and are in possession of a person which is not a party to the suit. In the absence of any fiduciary relationship between plaintiff and defendants and there being no equity between the parties arising from contract, fraud or trust the Court cannot exercise its jurisdiction in personam in the matter particularly when partly the claim relates to claim in which foreign immovable properties are also involved." The second case cited above, was indeed for possession and recovery of mesne profits relating to the land situated outside the Province of Sindh and notwithstanding the provisions contained in section 20 of the Code of Civil Procedure, the suit instituted before this Court, was found incompetent. Indeed, in the circumstances of the case, the plaint was returned for presentation before the proper Court. My conclusion on the basis of above is that the relief of injunction, both mandatory and prohibitory, sought in the main suit cannot be D granted in the present proceedings. Both the learned counsel had extensively argued in relation to the doctrine of forum-non-convenience but I do not consider it necessary to expatiate thereon in view of the finding about jurisdiction of this Court to grant relief of injunction. The application under Order VII, Rule 11, C.P.C. seeks rejection of plaint on the ground of want of jurisdiction. The plaint, however, besides the relief of injunction, as already observed, contains prayer for award of damages allegedly sustained by the two plaintiffs. The jurisdiction of this Court to award damages is not circumscribed by the limitations contained in the principle of lex situs. The claim for damages is made on the basis of transactions which had taken place in the United Kingdom namely the delay in transmitting money to supplier of Valuegold in Faisalabad, unauthorized demand of interest on the amount of Pound Sterling 2729.50, recovery of Pound Sterling 31,000 for issuance of letters of credit and various other acts noted by the Enquiry Officer appointed by the then Investment Minister, Government of Pakistan; and, on such basis it is urged that the English Courts alone could adjudicate upon grievances urged by the plaintiffs. Notably, the various acts of misfeasance, stated in the plaint, are alleged to have been tainted with mala fides and intent to commit fraud. The plaint, besides the allegations of misfeasance and malfeasance against the defendant-bank in relation to affairs of Valuegold, further contains averments to the effect that the personal properties of the plaintiffs are stipulated to be sold at a price far below the forced sale value thereof at the instance of the defendant-bank. Resultantly, it is alleged that the plaintiffs are exposed to financial loss entitling them to decree for damages. For the purpose of deciding the maintainability of suit under Order VII, Rule 11 of the Code of Civil Procedure, Mr. Pirzada has rightly urged that the contents of plaint alone need be examined. Such principle also finds support in the case of Mst. Zubaida Begum v. Muhammad Saeed 1991 MLD 1312. I have already observed that the plaint, in my view, contains the necessary pleadings for claiming damages and despite the legal position emanating, as above, to the effect that the present plaintiffs cannot sue for the damages allegedly sustained by Valuegold (under liquidation), the claim for reimbursement of losses sustained by the plaintiffs themselves cannot be brushed aside at this stage without affording them an opportunity to establish their assertions. On behalf of the defendant rejection of plaint has additionally been sought on the ground that the provisions of Act XV of 1997 whereunder the present proceedings have been entertained, do not apply to transactions of foreign branches of a banking company based in Pakistan. By reference to section 9(1) of Act XV of 1997, it is urged that the various averments contained in the plaint do not constitute a default in fulfilment of any financial obligation. The jurisdiction of this Court, it is urged, is limited to the cases where default is committed by a banking company or a customer in fulfilling any obligation arising out of a loan or finance. The various provisions of Act XV of 1997, referred in this behalf, may be reproduced for convenient reference: "Section 1(2). It extends to the whole Pakistan. "Section 2(a) 'banking company' means (i) any company whether incorporated within or beyond Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan and includes a Government saving bank." Section 2(b). "Banking Court" means

(i) in respect of a case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the trial of offences under this Act, the Court established under section 4 of this Act; and (ii) in respect of any other case, the High Court; Section 2(d). "customer" means a person who has obtained finance under a system which is not based on interest from a banking company or is the real beneficiary of such finance, and includes a surety or an indemnifier; " The said Act has apparently been enacted, inter alia, to regulate recovery of outstanding amount of finances and loans with conferment of jurisdiction upon Banking Courts to entertain proceedings on account of default in fulfilling any obligation with regard to any loan or finance. The law does not envisage any extra-territorial application nor could the same have been visulized by the Legislature being opposed to the principles of Judicial Comity. However, a particular transaction or party being amenable to jurisdiction of more than one Court is neither impossible nor an unknown phenomenon. In the present case, all and various banking transactions between the parties and the alleged illegalities committed or threatened to be committed by the defendant-bank had taken place abroad on a foreign soil. However, the head office of the defendant Bank is situated in Pakistan and it has been carrying on business within the jurisdiction of this Court. The claim for damages on the basis of fraudulent and mala fide actions alleged against the officers of defendant-Bank is an action in personam which clearly falls within the exceptions to the doctrine of lex situs expounded by the various notable authors of treatises on Conflict of Laws. For such reasons, I am of the view that an action for damages can lawfully be maintained by the plaintiffs against the defendant-Bank here in Pakistan. Indeed, the defendant-bank is vicariously liable for the acts of its officers or its nominees and cannot evade responsibility for damages if otherwise proved by the plaintiffs. The London Branch of defendant-bank, an agency of the defendant bank, can claim distinct entity only for limited purposes. However, the right to sue for an actionable wrong at the place of residence of defendant has its own logic. Indeed, a plaintiff can more conveniently enforce decree passed by the Court within whose jurisdiction the defendant resides or carries on business. The ordinary law of Civil Procedure which applies to this Court in the absence of any provision to the contrary in Act XV of 1997, too, permits institution of such proceedings against the defendant-bank who has its head office within the jurisdiction of this Court. The claim for damages cannot be termed as localised liability enforceable through the English Courts alone. The plaintiffs had the choice of forum in the matter of claim for damages which having lawfully been exercised cannot be denied. The mere fact that no part of the transaction or the cause of action for the suit, had arisen within the jurisdiction of this Court cannot divest the plaintiffs of their privilege to choose between the two fora and sue the defendant-bank for damages here. Should the need be, following passage from the judgment of Hamoodur Rehman, C.J., as he then was, in the case of M.A. Chaudhry v. Mistui O.S.K. Lines Limited PLD 1970 SC 373 at page 389 supports my said view:- "The principle that where two Courts are equally competent to try a cause or matter, then it is open to the plaintiff to choose his forum or for the parties to the dispute to agree to a particular forum in advance, must in my opinion, be read subject to the laws of the country in which the contract was made and in which it was intended to be performed. Such a choice or election by the parties cannot be in defiance of the law or opposed to public policy or to statutory provisions expressly prohibiting the making of such agreements or rendering the same, if ??????? made, invalid." The choice of forum by the plaintiff(s) can be objected on the grounds of mala fides, vexation and intent to defeat justice etc. In the present case, however, no such element, ex facie, is shown to exist and the objection regarding choice of forum is merely based on the assertion that the defendant-bank would be exposed F to enormous difficulties in bringing complete material and proper evidence, available in London, before this Court for a just determination of the issues involved in the proceedings. Reference has been made in this behalf to two cases from Indian jurisdiction. The first is judgment by the Supreme Court of India in Delhi Cloth and General Mills Company Limited v. Harman Singh and others AIR 1955 SC

590. The other case cited by Mr. Vallani is of Hans Raj Bajaj v. The Indian Overseas Bank Limited AIR 1956 Calcutta

33. In the first case, the plaintiffs carried on business with the defendant-company having branch office at Faisalabad (formerly Lyallpur). The account between the parties was a mutual running account and at the time of partition of the sub-continent, a balance of about Rs.12,000 was left in favour of the plaintiff. After partition, suit for recovery of the said balance with interest was brought before the Court at Delhi where defence was taken, amongst others, on the ground that the balance being a debt was to be paid at Faisalabad and not elsewhere and the place of primary obligation stood localized. It was additionally contended that the elements of contract between the parties were most densely grouped at Faisalabad which was the natural place with which the transaction between the parties had its closest and .most real connection. In such background, Bose, J. speaking for the Court, expressed as follows: "In banking transactions the following rules are now settled: (1) the obligation of a bank to pay the cheques of a customer rests 'primarily' on the branch at which he keeps his account and the bank can rightly refuse to cash a cheque .at any other branch: 1912 AC 212 at p.219(E); AIR 1942 PC 6 at pp.7-8(C) and 1924-2 Ch. 101 at p.117(D); (2) a customer must make a demand for payment at the branch where his current account is kept before he has a cause of action against the bank: --'Joachimson v. Swiss Bank Corporation', 1921-3 KB 110 (F), quoted with approval by Lord Reid in--'Arab Bank Ltd. v. Barclyas Bank' 1954 AC 495 at p.531(G). The rule is the same whether the account is a current account or whether it is a case of deposit. The last two cases refer to a current account; the Privy Council case AIR 1942 PC 6(C) was a case of deposit. Either way, there must be a demand by the customer at the branch where the current account is kept or where the deposit is made and kept, before the bank need pay, and for these reasons the English Courts hold that the 'situs' of the debt is at the place where the current account is kept and where the demand must be made. " Without any cavil to the principles, stated above, the facts involved therein, make it distinguishable from the present case. The claim was for recovery of debt which was rightly held to be governed by the proper law of the contract i.e. the law of the country with which the contract was connected. However, the claim for damages, in the present case, which is to be assessed upon liability being determined, does not, in my view appear to be barred by any law. Even the doctrine of forum-convenience cannot be applied to the claim for damages for the reason that the burden to prove the loss sustained by the plaintiffs is upon them and the defendant-bank, quite likely, may not even be called upon td produce complete record of its transactions in London. In any case, should the need be, with the fast developing means of communication, the necessary evidence can conveniently be produced in the present proceedings. Alternatively, even commission can be issued for recording evidence in the United Kingdom. However, it is too early to express anything definitely at this stage in this behalf. The Calcutta case cited on behalf of the defendant-bank again, is not applicable to the present matter. the claim involved therein related to a tangible asset being Demand Draft which was alleged to have wrongly been cancelled by the defendant. The defendant had alleged that the choice of forum by the plaintiff was, mala fide, vexatious, embarrassing and intended to defeat justice by preventing it from bringing material and proper evidence to the Court. The entire cause of action was stated to have arisen in foreign countries and all the necessary witnesses and documents of the bank were located abroad. In such perspective the following finding was recorded: "(6) It is clear, therefore, that both in respect of witnesses and in respect of documents, continuance of the suit here will not only mean mere inconvenience for the defendant but will also lead to failure of justice and such vexation as would amount to injustice. It has also been contended by the applicant, and in my view rightly, that the rights and liabilities of the parties in respect of the draft in suit should be determined by the laws of foreign countries, i.e., the laws of Penang and Singapore because the draft was issued by the bank at Penang on its branch at Singapore and payable there. Both lex loci and lex fori are foreign. (7) These are considerations which show that the Penang or the Singapore Court is the proper Court where this suit should normally have been instituted." Upon the above stated consideration the proceedings were stayed by P.B. Mukharji, J. of the Calcutta High Court. Unlike the above-referred Indian cases, the amount claimed by way of damages, in the present case, cannot be termed tangible and/or ascribed known location. After deletion of Valuegold from the present proceedings, the controversy has substantially narrowed down to the claim of the present plaintiffs on account of losses allegedly sustained by them. Even the alternate prayer made on behalf of the defendant-bank for staying the proceedings does not seem appropriate for the reason that claim for damages need not await the outcome of the proceedings under the English Law before the Courts there. The material issues in relation to claim for damages are not subject-matter of the proceedings which have come to pend before the English Court nor are relevant thereto. The plaintiffs can, independently, pursue the present case and establish their right and entitlement. In this behalf, even the illustrative comments contained in Abidin Daver case (supra), cited by Mr. Pirzada, do not change the position. I feel tempted here to reproduce the opinion expressed by Lord Diplock in the abovestated case wherein he observed:- "My Lords, the essential change in the attitude of the English Courts to pending or prospective litigation in foreign jurisdiction that has been achieved step by step during the last ten years as a result of the successive decisions of this House in the Atlantic Star, MacShannon and Amid Rasheed is that judicial chauvinism has been replaced by judicial comity to an extent which I think the time is now ripe to acknowledge frankly is, in the field of law with which this appeal is concerned, indistinguishable from the Scottish legal doctrine of forum non conveniens. " In the earlier part of his opinion the following observations of Lord Reid from (1973) 2 AER 175 was quoted: "My Lords, with all respect, that seems to me to recall the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races." The next question which needs to be attended is if the plaint can be I rejected in view of my above-recorded finding that this Court does not have jurisdiction to grant the relief of injunction sought in the main proceedings. The answer, however, is quite simple. A plaint cannot be rejected piecemeal and C, even if one prayer contained in the plaint is found entertainable, the proceedings are liable to be continued. I have found that the plaintiffs can maintain action for damages and, therefore, the application under Order VII, Rule 11, C.P.C., C.M.A. No.6020 of 1997 is dismissed. In relation to the application under -Order VII, Rule 10, C.P.C., C.M.A. No.6019 of .1997, Mr.S.S. Pirzada has referred to the case of M.A. Chaudhry v. Mitsui, O.S.K. Lines Limited (supra) and has urged that the provision for return of plaint does not apply to the present case since the alternate forum suggested on behalf of defendant-bank is located abroad and is necessary governed by different rules of procedure. In the cited case, claim for damages on account of short landing was resisted on the ground that the bill of lading contained the term "any dispute arising under this bill of lading shall be governed by Japanese Law except as may be otherwise provided herein and any such dispute shall be decided by Tokyo District Courts in Japan" and application was filed under Order VII, Rule 10, C.P.C. for return of the plaint. While dealing with such aspect the following observation was made:- "Again the question of returning the plaint can only arise where the same plaint can be presented in a foreign Court. This may well not be possible, for, the rules of procedure of the foreign Court may require the plaint to be in the form prescribed by that Court in the language of the country in which that Court is situated and affixed with court-fees, if any prescribed, in the manner laid down by the laws of that country. Obviously this procedure of returning the plaint can only apply where both the competing Courts are situated in the same country and following the same laws." The dictum laid down, as above, has its logic with which I am in complete agreement and am even otherwise bound to follow. The alternate prayer for staying the suit, too, cannot be granted in view of my observations hereinbefore. C.M.A. No.6019 of 1997 under Order VII, Rule 10, C.P.C. in the circumstances, is dismissed. Coming to the third application, filed on behalf of the defendant for grant of leave, a claim for damages, necessarily, requires proof of liability and the quantum. In the absence of proof of damages, decree cannot be awarded. Proof, however, can come forth after the defendant is allowed to enter defence and issues involved in the proceedings are settled. The defendant-Bank is, therefore, granted leave to defend the proceedings and is directed to file its H written-statement within 30 days from today with copy in advance to the other side. I am unable to accept the motion made on behalf of the plaintiffs that the leave be subjected to conditions. The law as provided in section 10 of the Act XV of 1997 does not contemplate imposition of any conditions nor have any special or extraordinary circumstances been shown for making the leave conditional. Even otherwise, the conditions suggested on behalf of the plaintiffs do not sound logical or reasonable. The application, C.M.A. No.6021 of 1997 is accordingly granted. Taking up the application for interim injunction, the mainstay of the plaintiffs is the report submitted by the Enquiry Officer appointed by the then Investment Minister, Government of Pakistan. The various allegations made against the defendant-bank were allegedly found correct by the Enquiry Officer. According to the plaintiffs, the general control and management of the defendant, a Nationalized Bank, vests in the Government of Pakistan by virtue of section 5 of Banks Nationalization Act, 1974. It is further urged that even the London Branch of.the defendant cannot claim an independent status since it could be set up only subject to grant of permission by the State Bank of Pakistan under section 28 of the Banking Companies Ordinance, 1962. The instructions issued by the State Bank of Pakistan as are referred in its reply dated 24th June, 1997 addressed to the plaintiffs' counsel are binding on the defendant-bank in view of the rule laid down in the case of Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC

315. I do not, however, feel pursuaded to examine the various contentions raised in support of the injunction application for I have already found that the relief of injunction sought in the main suit cannot be granted by this Court since such issue would not necessarily involve adjudication of matters falling outside the jurisdiction of this Court. The interim relief must, necessarily, be granted in aid of the final relief and therefore orders, interlocutory in nature, cannot be passed augmenting the final relief which, in the opinion of Court, cannot ultimately be granted. I am fortified in this view by the judgment of the Hon'ble Supreme Court in Marghub Siddiqui v. Hamid Ahmed Khan 1974 SCMR

519. Even otherwise, interim injunction cannot be granted in this case, for, the damages apprehended by the plaintiffs can always be compensated in terms of .money. The application for interim injunction is consequently dismissed and the ad interim order, passed on 28-8-1997, stands recalled. A.A./M-351/K Order accordingly.