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Petitioner: MUHAMMAD HUSSAIN VS Respondent: STATE BANK OF PAKISTAN and anothers
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany Title: MUHAMMAD HUSSAIN vs STATE BANK OF PAKISTAN and anothers Case No.: Suit No,872 of 1999 Date of Judgment:1999-07-27 Reported As: 2001 YLR 2259 Result: Application for rejection of plaint dismissed
JUDGMENT
JUDGMENT ' This is an application under Order 7, rule 11, C.P.C. Where by the defendants seek dismissal of the suit on the basis that the plaint does not disclose any cause of action and that the suit is barred under provisions of the Specific Relief Act and the Banking Companies Ordinance. ' The brief facts of the matter are that the plaintiff has a Rupee Deposit Account, as well as US Dollar Account with the defendant No,2 Bank (hereinafter called as Bank) in the amount of Rs,72,199,948 and US$521,330 respectively. The Bank is a branch of Trust Bank Limited, Nairobi, Kenya and has been granted a licence to do business in Pakistan vide the State Bank of Pakistan's letter, dated 18th September, 1996 copy of which has been filed as Annexure 'A' to the plaint. It is stated in the plaint that the Bank has been conducting its business in a satisfactory manner and has been able to attract deposit of up to Rs,330,000,000. Such statement of fact is supported by the balance- sheets of the Bank for the periods ending 31-12-1996 and 31-12-1997 along with the statement of affairs of the bank dated 19-9-1998 copies of which have been filed as Annexures B, B/1 and D. However, notwithstanding this satisfactory financial position the State Bank of Pakistan (SBP) issued a letter, dated 18-9-1998 (Annexure E.1) addressed to the Chief Executive of the Bank drastically curtailing its operations and also placing the same under the control of Mr. Zafar Hussain Siddiqui, Additional Director Bank Supervision Department, SBP. The restrictions placed upon the Trust Bank include prohibition of any withdrawal by any individual customer from its account in excess of Rs,25,000 deposit of all Government securities with SBP, surrendering of all foreign exchange balance after retaining US$50,000 etc. It is pleaded that the in effect the directions contained in the impugned letter has virtually closed down the Bank and it has been specifically pleaded by the plaintiff that such directions violate the fundamental rights of the
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plaintiff. More so since no reason has been given in the impugned letter for the drastic action taken by the SBP. ' It is further stated in the plaint that on 18-9-1998 the plaintiff applied to the Bank for issuance of a pay order of Rs,70,000,000, which was issued and delivered to him by the Bank during office hours and accordingly the plaintiff's account was debited with this amount. However, later on the same day the Bank also asked the plaintiff to send back the pay order as there was some error in it and after correction of the same it would be returned. Nevertheless on 19-9-1998 the plaintiff was informed by the Bank that the said pay order has been surrendered to the SBP on the latter's instructions and accordingly the plaintiff's account was credited for Rs,70,000,000. The exercise as per plaintiff was collusive and fraudulent as the reversal of the entry by crediting the account of the plaintiff which had already been debited was unlawful and without any jurisdiction. Thereafter, the plaintiff along with other account holders filed a Constitutional petition bearing No,1786 of 1998 before this Court which inter alia challenged the impugned letter issued by SBP. However, the said petition was dismissed in limine with the observation that since it raised disputed questions of fact the same could not be considered in writ jurisdiction. It has also been alleged in the plaint that certain preferred creditors have been allowed to withdraw their deposits from the Bank which is discriminatory and hence a violation of the fundamental rights of the petitioner viz Article 25 of the Constitution and hence a suit, with the prayer that declarations be issued by this Court to the effect that directives contained in the impugned letter, dated 18-9-1998 issued by SBP and subsequent actions taken pursuant thereto are without jurisdiction, mala fide, and of no legal effect, that the defendants immediately pay the amounts deposited with them by the plaintiff to it along with 21% interest/mark-up and finally that the defendants be directed to en cash the pay order issued in favour of the plaintiff. A permanent injunction has also been prayed for restraining the defendants from releasing any amounts to other depositors of their choice. Additionally it has been prayed that damages in the sum of Rs,5,00,00,000 (Rupees five crore only) along with mark-up be paid from the date of filing of the suit till realisation of this amount to the plaintiff. ' In support of the application under consideration Mr. Zahid Jamil appearing for the defendants has firstly urged that as per the order of this Court dated 16-7-1999 this suit has been held not to be a Banking suit within the purview of the Banking Companies Recovery of Loans Ordinance, 1997 and hence the suit should have been renumbered and fresh summons issued to the defendants or in the alternative the plaint should have been returned to the plaintiff to be filed afresh as an ordinary civil suit. Consequently according to learned counsel as neither of the above actions have been taken the suit in this present form cannot proceed on the original side and as such is barred under the provisions of Order 7, rule 11, C.P.C. Learned counsel has further submitted that the High Court while acting as a Banking Court does not in fact exercise original civil jurisdiction but acts as a Special Court established under the Banking Companies Recovery of Loans Ordinance, 1997 for the purpose of hearing all cases where the amount involved is over Rs,30 Million whereas for amounts below this figure the other Banking Courts have been set up to exercise jurisdiction. Consequently in the opinion of learned counsel there could not be any intra-High Court transfers from the jurisdiction to another without undergoing an exercise of either renumbering the suit as an original civil suit and issuing fresh summons or returning the plaint to the plaintiff for filing afresh on the original civil side. According to the learned counsel if this exercise was not conducted it would result in absurdities as a Banking Court exercising jurisdiction in a matter below Rs,30 Million could not order the transfer of such a matter to the High Court if it came to the conclusion that in fact the said matter was not a Banking matter but an ordinary civil suit. In support of his contentions learned counsel has relied upon Mst. Parveen Jaffar v. Bankers Equity Limited (1998 CLC 1263) and Value Gold Limited v. UBL (PLD 1999 Karachi 1).
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' Learned counsel's next argument is that a Civil Petition No,1786 of 1998 filed by the plaintiff along with other account holders against SBP for the same relief's and upon the same cause of action has been dismissed in limine one, inter alia, the observation that as disputed question of the SBP to act in the matter under section 41 of the Banking Companies Ordinance, 1962 was not challenged by the petitioner/plaintiff, therefore, the same operated as res judicata and consequently the plaintiff could not file the suit based on the same cause of action with the result that the suit is barred under section 11, C.P.C. And again should be dismissed under Order 7, rule 11, C.P.C. ' Thirdly learned counsel has contended that under section 94 of the Banking Companies Ordinance, 1962 no suit could be instituted against the SBP unless there is any prima facie evidence of mala fides. According to learned counsel a mere statement regarding such mala fides as contained in the plaint is not sufficient and further evidence should be forthcoming in the matter so as to defeat the ouster clause contained in section 94 of the Banking Companies Ordinance, 1962. ' Learned counsel's next contention is that the suit is barred under section 42 of the Specific Relief Act since the relationship between the Bank and the plaintiff is that of banker and customer and in the present circumstances is akin to that of a debtor and creditor. Thus, in the eyes of law, the plaintiff cannot claim any proprietary right over his deposits held by the Bank but only the rights of the creditor and consequently a declaratory decree cannot be passed against the defendants in the matter since the plaintiff has not displayed an entitlement to any legal character or to any right as to any property. In support of his contenting learned counsel has relied upon various books including the Law of Banks by Tannen and the Law of Banker and Customer by Thomas and Megrah as well as the case of Foley v. Hill (1848) 11-H . L.0 . 27. Consequently as per learned counsel the only right which the plaintiff has is to prove his debt in a winding up of the Bank. Similarly learned counsel has further contended that injunctive relief as prayed for in the suit is also barred under section 56(d) of Specific Relief Act which prohibits injunctions where these interfere with the public duties of any department of the Central or Provincial Government or the sovereign acts of a foreign Government. So also as per learned counsel section 56(f) of the said Act is attracted to the facts of the present matter whereby an injunction cannot be granted to prevent the breach of any contract the performance of which could not be specifically performed. Learned counsel has also cited section 21 of the Specific Relief Act, for the proposition that where dames is adequate relief no injunction can he granted. Learned counsel has stressed that the Court should not interfere with economic and financial policies of the Government which is the function of experts and in this regard has submitted that the SBP can best judge whether it would be the operation of a Banking Company. Learned counsel has relied upon M.A. Nasser v. Chairman, Pakistan Eastern Railways (PLD 1965 SC 83) Obaidullah v. Habibullah (PLD 1997 SC 835) Muhammad Rashid Bhatii v. KDA (PLD 1986 Karachi 130), M/s Qasimabad Enterprises v. Province of Sindh and others (1998 CLC 441) and Peerless General F & 1 Co Ltd., v. Reserve Bank of India (AIR 1992 SC 1033). ' In reply Mr. Khawaja Shamsul Islam for the plaintiff has submitted that as far as the first issue is concerned vis the conversion of the matter from the Banking suit to an ordinary civil suit, this happens almost every day in the High Court and there is neither any need of renumbering the suit and issuing fresh notices or for that matter returning the plaint to the plaintiff for filing afresh and hence by no stretch of imagination could the suit be dismissed under Order 7, rule 11 based on the above consideration alone. For this proposition he has also relied upon the case of Parveen Jaffer v. Bankers Equity Limited (supra) and Value Gold Ltd. v UBL (supra). As regard section 11 of the C.P.C. It is submitted by learned counsel that the only reason why Civil Petition No,1786 of 1998 filed by the plaintiff along with other depositors against the SPB was dismissed was that the same displayed factual controversies which a learned Division Bench of this Court sitting in Constitutional jurisdiction declined to enter into. Learned counsel submits that as far as the observation of the
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learned Companies Ordinance is concerned, these were merely obiter and the rights and obligations of the parties in terms of said section and the facts as displayed in the petition were not adjudicated and hence it cannot be said that any final determination of such rights and obligations were made in the dismissal order of said petition which would oblige this Court to dismiss the suit base solely upon section 11 of the C.P.C. In this regard learned counsel has relied upon the cases of Muhammad Sharif v. Inayatullah and 24 others (1996 SCMR 145), Pakistan Steel Mills Corporation v. Muhammad Ashique (1995 CLC 1000) and Haji Ashfaq Ahmed Khan and others v. Custodian of Evacuee Property and others (PLD 1966 (W.P.) Karachi 597) and Additional Commissioner II-K Division v. Shahid Raza (1997 MLD 2444). ' Next learned counsel has contended that section 94 of the Banking Companies Ordinance, only places an embargo upon filing of civil suits etc., against the SBP where good faith is displayed and not in cases like the present one where prime facie the SBP has not followed the provisions of sections 41, 41-A, 41-B, 41-C, 43-B, C&D and section 47 of the Banking Companies Ordinance with regard to the Bank's affairs. In this regard learned counsel says that it has been shown in the plaint, prima facie, that the ' impugned order dated 18-9-1998 has virtually closed down the Bank without following the provisions of the Banking Companies Ordinance referred to above which hardly establishes the SBP's good faith. Illustrating his arguments learned counsel has referred to section 41(A) of the Banking Companies Ordinance. Learned counsel submits that neither any notice was given to the Bank regarding control of its affairs by the SBP and nor was the Federal Government involved in this exercise and hence the virtual closing down of the Bank based on the impugned latter is prima facie, mala tide and no legal effect. Similarly learned counsel has contended that sections 41, 41-A and 41-B do not empower SBP to close down the Bank and that too without notice to the Bank. As per learned counsel section 41 merely empowers the SBP in the public interest or to prevent affairs of any Banking Company being conducted in a manner detrimental to the interest of the depositors or prejudicial to the interest of the Banking Company generally, to issue such directions as it deems fit which would be complied with by the concerned Banking company. These directions/powers have been further illustrated in section 41-A viz removal of any Chairman or Director or Chief Executive of the Banking Company under sections 41-B to supersede the Board of Director of Banking Company. Similarly, the functions of the SBP have been enumerated in his regard viz where it under section 41 gives any direction to any Banking Company. It is further contended that in any event the provisions of section 41-C of the Ordinance have been totally violated as SBP cannot exercise any powers under sections 41-A and 41-B except where these are done by the Governor of the SBP on a report by a Standing Committee set up by the SBP for this purpose. Consequently as per learned counsel the powers under sections 41, 41-A and 41-B given to the SBP are purely of a regulatory nature where the SBP can only .Regulate the functioning of any Bank and do not entitle to close down the Bank as has been done in the present case. Learned counsel further submits that in order to suspend the business of the Bank the provisions of Part 3 of the Banking Companies Ordinance, 1962 should have been followed which provides for said suspension, scheme, of amalgamation and reconstruction and winding-up of Banking Companies. It is,. Therefore, submitted that since this has not been done in the present case consequently neither could the Bank's business be suspended nor the other impugned actions be taken and hence it could not be said that the same were done in good faith so as to attract the ouster contained in section 94 of the Banking Companies Ordinance. ' In support of his contentions learned counsel has relied upon Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi (PLD 1991 Supreme Court 14), The Federation of Pakistan v. Shaukat Ali Mian (1991 SCMR 1229), Muhammad Banaras Khakan v. Rubina Chaudhry (1997 CLC 997), Shoukat Ali Mian and another v. The Federation of Pakistan (1999 CLC 607) and Hudaibiya Egineering (Pvt.) Ltd. v. Pakistan (PLD 1998 Lah. 90).
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' As regards section 42 of the Specific Relief Act, learned counsel contends that under such section the enforcement of any obligation arising under law is always justifiable. Consequently as per learned counsel what the plaintiff is seeking is the enforcement of SBP's obligation arising under the Banking Companies Ordinance, 1962. Such enforcement of obligations according to learned counsel is the possession of the legal character as provided under section 42 of the Specific Relief Act. In this regard learned counsel has relied upon Shahid Mahmood v. KESC (1997 CLC 1936) and Additional Commissioner-II K-Division Karachi v. Shahid Rua (1994 MLD 2444). Similarly as regards section 56(d) of the Specific Relief Act learned counsel submits that prima facie it has been established that SBP has not performed its duties in accordance with law, consequently its action could not be treated as performance of public duties and hence does not come within the mischief of section 56(d) of the Act, which prohibits the grant of injunctions in the case of public officials while in performance of their duties. ' Finally, learned counsel has contended that the impugned actions of the State Bank of Pakistan cannot by any stretch of imagination be interpreted as being in the interest of the plaintiff and the other depositors since a discriminatory policy was being followed as some preferred depositors were allowed to withdraw their money while the plaintiff was refused which is a manifest violation of Article 25 of the Constitution and hence to that effect also the impugned action are unlawful and should be struck down. ' I have heard both the learned counsel and my view are as follows. As regards the learned counsel for the defendants first contention that since the suit has been held not to be a Banking Suit vide order, dated 16-7-1999, consequently either the suit should have been numbered and fresh notice issued or the plaint returned to the plaintiff for filing afresh, suffice it to say that no separate register is being maintained in this Court for Banking Suits, and therefore, when the plaint was presented the suit was admitted as a Banking Suit and given Its number in normal course. It was only at the behest of the learned counsel for the defendants that the issue whether the suit should be treated as a Banking suit or a normal suit was heard and decided by my learned brother Zahid Qurban Alavi, J., on 16-7-1999. In the said order my learned brother had come to the conclusion that the suit was wrongly filed under the Banking jurisdiction of this Court and directed the office to treat the same as an ordinary suit. ' In view of the foregoing facts I am afraid that I am unable to agree with learned counsel that the suit should have been renumbered and fresh summons issued or that the plaint should have been returned to the plaintiff for filing afresh. The conversion of suit filed under the Banking jurisdiction into ordinary civil suits and vice versa happens every day in this Court and in my opinion it would be an unnecessary burden on the litigants as well as this Court to insist that upon every such conversion the proceedings should start de novo. Learned counsel has also not been able to point out any prejudice which the defendants may have suffered where such action as is contemplated has not been carried out and neither has he been able to pinpoint any law which requires the carrying out of such action. At the most it could be said that where an ordinary suit is converted into a Banking suit, the defendant should be required to file an application for leave to defend the suit within ten days from the date of order of conversion which in my opinion would satisfy the requirements of law. Such is not the case in the present matter as exactly the opposite has happened viz that the suit was treated by the office as a Banking suit and was subsequently converted into an appearance and consequently there is no need to issue fresh notice etc. Consequently in my opinion this objection A must fail moreso because it is a hyper-technical one' which should not stand in the way of equitable administration of justice so as to non-suit the plaintiff on this score lone. Regarding the issue of res judicata it would be seen that in the dismissal order of Constitution Petition No,1786 of 1998 the main ground was the non-inclination of a learned Division Bench of this
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Court to enter into factual controversies as partially displayed in the petition. In my opinion the right and liabilities of the parties as contemplated in the relevant sections of the Banking Companies Ordinance including section 41 thereof were not adjudicated by the learned Division Bench. It was only observed that both the learned counsel did not controvert the State Bank of Pakistan was not restrained from resorting to section 41 of the Banking Companies Ordinance Whereby power has been given to issue directions to Banking Companies generally or to any Banking Company in particular where the same are merited in the public interest or to prevent the affairs of any Banking Company being conducted in a manner detrimental to the interest of the depositor etc., or to secure the proper management of any Banking Company. In my opinion this was a mere observation of the learned Division Bench and being obiter by no stretch of imagination, could amount to adjudication of the rights and liabilities of the parties in terms of section 11 of C.P.C. As same have not been heard and finally decided by the learned Division Bench. Reference in this regard can be made to Haji Ashfaq Ahmed Khan and others v. Custodian of Evacuee Property and others (supra) wherein a Division Bench of this Court held that if a writ was dismissed in limine the issue of res judicata in a subsequent suit depends on the nature of the order and if the order does not consider all the aspect of the questions raised in the petition and disposes it off on a technical ground, it would not be an order on merits. This as observed above was not done in Civil Petition 1786 of 1998. ' The next issue raised in the matter by Mr. Zahid Jamil is regarding the bar of jurisdiction contained in section 94 of the Banking Companies Ordinance, 1962 whereby no suit could be instituted against the State Bank of Pakistan for any thing which is done in good faith or intended to be done in pursuance of the Ordinance or of any rules and orders made thereunder. In this connect learned counsel has suggested that the action taken by the State Bank of Pakistan vide the impugned letter, dated 18th September, 1998 was totally bona fide and in the interest of the depositors as well as of the general public and unless the assets of the Bank had been frozen there would have been a run on the Bank and the depositors would have lost all their money. Learned counsel in this regard submits, albeit rather weakly, that if the statutory provisions contained in the Banking \Companies Ordinance would have been folded and the State Bank of Pakistan forced thereby to take the necessary permission before issuing the impugned notice, this would have caused delay and would have made any exercise of power infructuous. Learned counsel has further stated in this regard that the action in fact was not taken against the Management of the Trust Bank, but due to the collapse of the Trust Bank's Head Office in Kenya. I am afraid again that I am not able to confer to the view expressed by learned counsel as aforesaid. It would be seen that the Banking Companies Ordinance provides a complete and comprehensive remedy and gives concurrent powers to the State Bank of Pakistan for exercising such remedy whenever the affairs of any bank are not being run in accordance with law or to the detriment of its depositors or the general public. In this connection it would be seen that the State Bank of Pakistan has various powers to regulate the functions of Banks, as provided in Part I of the Banking Companies Ordinance which essentially relate to the regulation of Banking business transacted by Bank licensed under the Ordinance to do say by the State Bank of Pakistan. These include, inter alia, section 41 of the Ordinance whereby the Stat Bank of Pakistan has been empowered to generally issue direction to Banking Companies in order to prevent the affairs of any such Company from being conducted in a manner detrimental to the interest of the depositors or prejudicial to the interest of the Banking Company and/or to secure the interest of the banking company. Section 41-A to D to thereafter provide for the particular manner in which such powers if to be exercised viz by removal of the Board of Directors, prosecution of Director. However, nothing in section 41-A to D or for that matter in section 42 of the Banking Companies Ordinance empowers the State Bank of Pakistan to close down any Bank as virtually done through the impugned direction. The powers mentioned thereon only entitle the
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State Bank to regulate…
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