2002 PLP 1789 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This petition has been filed for leave to appeal against the order of High Court of Sindh, dated 22nd November, 2000, whereby Constitutional Petition No. D‑296 of 2000 filed by respondent in the month of February, 2000 challenging the letter of delisting of Insurance Companies from the Bank's approved list dated March 5, 1998 has been allowed.

2. Precisely stating the facts of the case are that National Bank of Pakistan (the petitioner) under the cover note No.95324, dated 1st September. 1996 purchased a policy from Union Insurance Company of Pakistan, Gujranwala on behalf of Messrs Saleem Plywood Industry (Pvt.) Ltd. for a sum of Rs.22 million, insuring the building, machinery and stock .of the said mortgagor situated at 24‑25 K.ms, G.T. Road, Gujranwala for a period commencing from 1‑8‑1996 to 31‑7‑1997 against risk of fire and atmosphere disturbance riots etc. subject to mortgage and atmospheric disturbance clause. The first instalment of the premimum amounting to Rs.86,330 as per Policy No.GRW/FP/01/00251/96, dated 26‑11‑1996 was paid by the Bank to the Insurance Company. It is the case of the petitioner that according to the cover note the name of the respondent Insurance Company i.e, Crescent Star Insurance Company and Platinum Insurance Company Ltd. and Standard Insurance Company were duly mentioned. On 25th May, 1997 the fire broke out in the factory of Messrs Saleem Plywood Industry (Pvt.) Ltd., which was followed by windstorm damaged on 6‑6‑1997. The petitioner‑Bank being mortgagee estimated the loss of factory to the tune of Rs.1,38,62,

525. The quantum of loss was duly brought by the petitioner in the notice of Messrs Union Insurance Company by sending fax massage and calling upon it to investigate the matter by appointing Mr. Islam Naseer, Surveyor. It is the case of the petitioner that the respondent, as well as Union Insurance Company and Platinum Insurance Company jointly appointed Mr. Islam Naseer, as Surveyor After his appointment on the request of Messrs Union Insurance Company, the respondent i.e. Crescent Star Insurance Company Ltd., supplied copies of the cover note also together with the co‑insurance clause attaching thereto. Later on in a surprise move all the three Insurance Companies except the leading Insurance Company claimed that they were never a party to the insurance and also denied the signature on the said co‑insurance clause etc. for the reason of the same not being of any of their authorized officer/representative and stated that all the documents were fake, false, fictitious and fabricated. Petitioner took up the matter with the respondent and other co‑insurance companies for settlement of dispute but they refused to do so. Under such circumstances, RI.R. No.100 of 1998 was lodged by petitioner at Civil Lines Police Station Gujranwala on 29‑1‑1998 under sections 403/406/410/420/ 468/471, P.P.C. It appears that police did not challan Insurance Companies but only proceeded against one Muhammad Arif Butt, the Manager of Union Insurance Company, City, Branch, Gujranwala. Later on petitioner filed a suit against Messrs Saleem Plywood Industry Ltd. for the recovery of Rs.2,60,04,623.67 through its Directors as well as Union Insurance Company. But the name of Union Insurance Company was deleted by the Banking Judge holding that the Insurance Company does not fall within the definition of borrower, therefore, it has no jurisdiction to proceed with the matter against it However, later on the suit was decreed against Messrs Saleem Plywood Industry Ltd. on 22nd March. 1999. Under the circumstances, petitioner filed a separate suit against all the Insurance Companies in the Court of competent jurisdiction on 3rd of June, 1999 petitioner also lodged a complaint against all the Insurance Companies before the Controller of Insurance urging him to cancel registration of the Insurance Companies due to non‑payment of claim but the Controller of Insurance did not proceed against them. As the Insurance Companies including respondent failed to make payment of the petitioner, therefore, it was of the opinion that the Insurance Companies are acting with mala fide intention and the stand taken by them is not justified, therefore, National Bank had no option but to delist all the four companies from the panel of the Bank.

3. Against this order respondent filed Constitutional Petition No. D‑296 of 2000 before High Court of Sindh at Karachi on February, 2000. Petitioner submitted written statement/counter affidavit repudiating the claim of the respondent and also pointing out that civil suit for recovery of the claim has been filed against it and three other Insurance Companies. The respondent has been served and is contesting the suit but this fact was intentionally concealed as it was not mentioned in the petition. Learned High Court vide impugned order, dated 22nd November, 2000 allowed the petition declaring that letter of delisting the respondent and other co‑Insurance Companies from panel of the Bank is without lawful authority and jurisdiction. As. such instant petition has been filed.

4. After hearing learned counsel for both the parties, we are of the opinion that inter alia' following points emerge for consideration: (i) As to whether petitioner under Article 199 of the Constitution of Islamic Republic of. Pakistan filed by respondent in the High Court of Sindh in the month of February, 2000 challenging order, dated 5th March, 1998 was hit by doctrine of laches as such was liable to be dismissed on this score alone? (ii) As to whether learned High Court exercising Constitutional jurisdiction in violation of settled principle of law that disputed question of facts cannot be decided in the Constitutional jurisdiction by the High Court to give relief to respondent, if so, to what effect? (iii) As to whether impugned judgment is not sustainable because stand taken by the petitioner relating to filing of suit for recovery against respondent and other insurance companies in the jurisdiction of Lahore High Court was not considered in the impugned judgment? (iv) Whether writ petition filed by respondent was liable to abate because suit filed by petitioner for recovery of money against' respondent and other Co‑Insurance Companies was earlier in time? Thus to examine the above points leave to appeal is granted. Pending decision of appeal, operation of impugned order, dated. 22nd November, 2000 is suspended. Learned counsel for respondent requested for early hearing of the case. Office may fix this case at an early date subject to prior approval of Hon'ble Chief Justice. Q.M.H./M.A.K./N‑72/S Leave granted.