2005 PLP 1486 (CLD)

MIAN HAMID FAROOQ, J.

Appellant/plaintiff, through the filing of the present appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has called in question judgment and decree dated 12-8-2002, whereby the learned Judge Banking Court dismissed its suit for declaration, rendition of accounts and permanent injunction.

2. Appellant/plaintiff filed the suit for declaration, rendition of accounts and permanent injunction, before the learned Judge Banking Court, wherein the respondent-Bank filed the reply to the show-cause notice and written statement. In the meantime the respondent-Bank filed the suit for recovery of Rs.29,59,843.20, before the same Court, wherein the appellant filed the application, seeking leave to defend the suit. Appellant's application for the amendment of the plaint, filed in its suit was dismissed by the learned Judge Banking Court, vide order dated 8-3-2000. After the promulgation of Ordinance, XLVI of 2001, the learned Banking Court directed the respondent-Bank, being the defendant in appellant's suit, to file the amended application as required by section 10(12) of Ordinance, 2001, however, the Bank never filed the said application. The learned Banking Court decreed respondent-Bank's suit and dismissed appellant's suit, vide consolidated judgment dated 12-8-2002. Against the said decrees the appellant filed two appeals, i.e. R.F.A. No.728 of 2002 (present appeal) and R.F.A. No.729 of 2002 (which was withdrawn).

3. Learned counsel for the appellant has contended that the suits were never consolidated and the learned Banking Judge without deciding the controversies between the parties in appellant's suit, has dismissed its suit only on the ground that the suit of the respondent-Bank was decreed. He has further submitted that even the respondent-Bank's application, seeking leave to defend the suit, was not decided.

4. Despite service for today, none has entered appearance to represent the respondents, thus they are proceeded ex parte.

5. Perusal of the summoned record fortifies the contention of the learned counsel for the appellant that the two suits i.e. "Allied Bank of Pakistan v. Messrs Abdul Sattar Cotton and Oil Industries (Pvt.) Ltd." and "Messrs Abdul Sattar Cotton and Oil Industries (Pvt.) Ltd. v. Allied Bank of Pakistan" were never consolidated, however, both the suits have been decided through a consolidated judgment. Upon the examination of the impugned judgment, we find that the learned Banking Court, while dismissing appellant's suit, did not render its independent findings on the issues involved in appellant's suit and proceeded to dismiss the same only on the ground that the decree has been granted in the suit for recovery, filed by the respondent-Bank. Under the present set of circumstances, the learned Banking Court was under obligation to render separate findings, may be in single judgment, on each case separately. Thus appellant's suit could not have been dismissed without rendering independent findings and in the manner it has been dismissed. The learned Banking Court, while dismissing the suit, has definitely committed legal error, which needs rectification by this Court.

6. There is another aspect of the case. Admittedly, the respondent-Bank filed the application, seeking leave to defend the suit, but the same was not decided either way, by the learned Banking Court Although the learned Banking Court directed the respondent-Bank to file amended application, vide order dated 17-9-2001, yet the said order was not complied with. Meaning thereby that the earlier application, filed by the respondent-Bank, shall be deemed to be pending and had to be decided on its own merits. However, the said application, as noted above, was not decided. Under the law, the learned Banking Court was obliged to decide the application on its own merits, before embarking upon merits of the suit. The impugned judgment is violative of the law laid down by this Court in the cases of Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager 2003 CLD 245 and Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Brach/Recovery Officer 2004 CLD 1645.

7. Placing the afore-narrated facts in juxtaposition with the provisions of section 10 of Ordinance XLVI of 2001, it is evident c that the learned Banking Court did not adopt the procedure, a prescribed in the said statute and has, in fact, gone outside the scope of section 10 of Ordinance. Admittedly, the respondent-Bank filed the application seeking leave to defend the suit, but the learned Banking Court without deciding the application, c dismissed appellant's suit. The impugned judgment is thus violative of said provisions of law.

8. In the above perspective, we have examined the impugned judgment and find that it is not sustainable in law, inasmuch as the same is violative of law laid down in the aforesaid two cases, thus we are inclined to set it aside.

9. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 12-8-2002, to the extent appellant's suit, titled "Messrs Abdul Sattar Cotton and Oil Industries (Pvt.) Ltd. v. Allied Bank of Pakistan" was dismissed, is set aside with no order as to costs. Resultantly appellant's aforenoted suit and the respondent-Bank's application for leave to defend shall be deemed to be pending before the learned Judge Banking Court, who shall decide the said application and the suit, after, hearing the parties and of course in accordance with law. S.A.K./A-426/L Appeal accepted.