SYED JAMSHED ALI, J.---This appeal is directed against the judgment and decree dated 14-9-1998, passed by the learned Banking Court No.II, Lahore whereby the suit for recovery of an amount of Rs.17,83,055 filed by the respondent Citibank, against the appellant was decreed in the sum of Rs.14,85,879.
2. The learned counsel for the appellant contends that the suit was filed by one Aamir Nawab, purportedly acting as Attorney of the respondent-Bank. The objection as to his competency to file the suit was taken before the learned Banking Court but the objection was turned down in an arbitrary manner with the observation that "power of attorney is quite legal which has already been placed on record". The learned counsel maintains that no power of attorney, in favour of Aamir Nawab, was placed on the record. Instead, it appears that Vakalatnama executed by Aamir Nawab in favour of the learned counsel, who instituted the suit, was assumed to be the power of attorney which is on the record. Reliance is being placed on section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XXV of 1997) to contend that the suit could only be filed by the Branch Manager or such other officer "as the Board of Directors of a Banking Company may authorize in this behalf (underlining is ours to supply emphasis).
3. On the other hand, the learned counsel for the respondent-Bank maintains that Aamir Nawab was a duly constituted Attorney of the respondent-Bank and, therefore the suit was competently instituted. He further submits that Aamir Nawab was also a Branch Manager, one of the persons designated in Act XXV of 1997, who could competently institute the suit on behalf of the respondent-Bank. He also relied on the judgment dated 20-9-2000, passed by this Court in R.F.A.
No.307 of 1998 in which the authority of Aamir Nawab as a duly constituted Attorney of the respondent-Bank was recognized.
4. We have considered the submissions made by the learned counsel for the parties. Judicial precedents are not wanting where the suits instituted by incompetent persons have been dismissed. Reference may be made to Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) A v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 Supreme Court 550; Abubakkar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367; Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lahore 381; Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413 and Bankers Equity Ltd. through Attorney and 5 others v. Sunflo CitRuss Ltd. (formerly known as Sunflo Juices Ltd.) through Managing Director PLD 1999 Lahore
450. A perusal of the impugned judgment shows that the record was not carefully examined. We have examined the original record with the assistance of the learned counsel for the parties but could not find any document on the record whereby Aamir Nawab was authorized by the Board of Directors to B institute the suit on behalf of the respondent-Bank. The finding in the impugned order that the power of attorney which had been placed on record is quite legal is, therefore, bereft of any basis.
5. Under section 9 aforesaid, a Branch Manager is competent to institute the suit. In the application of the appellant for leave to appear and defend the suit, it was by the Board of Directors to institute the suit. A perusal of asserted that Aamir Nawab had not been duly authorized C the reply of the Bank shows that it has been insisting on the plea that Aamir Nawab was a duly constituted attorney of the respondent-Bank, but it was no where mentioned that he was also a Manager of the Bank.
6. As far as the reliance on the judgment dated 20-9-2000 in R.F.A. No.307 of 1998 is concerned, we are not impressed because the observations of this Court in para.5 were that "the power of attorney has been produced by the respondent showing that he was authorized to institute the suit". The appeal was decided on 20-9-2000. The judgment being relied upon does not indicate the date of execution of the power of attorney in favour of Aamir Nawab referred to in the said case.
The said judgment also does not reflect that the power of attorney produced before this Court in R.F.A. No.307 of 1998 was executed by the Board of Directors of the respondent-Bank. We may also like to observe that the decision of the objection of the appellant was required to be taken with reference to the material available on the record of this case and, therefore, material on the record of any other case could not be imported to be relied upon.
7. In view of what has been stated above, we have no doubt in our mind that the objection of the appellant as to the competence of the person filing the suit has not been properly decided. The other issues could only be examined after first determining whether the suit had been instituted through a duly authorized person. Accordingly, we allow this appeal, set aside the impugned judgment and decree and remand the suit to the learned Banking Court No.11 for a fresh decision in accordance with law.
8. The suit was instituted on 18-9-1997 and it is already six years old. We, therefore, direct that the learned Banking Court shall finally conclude hearing of the suit within a period of four months. The parties are directed to appear before the learned Banking Court No. II on 13-10-2003.
9. The record shall immediately be returned.
10.No order as to costs.