MUHAMMAD MUZAMMAL KHAN, J.---Instant constitutional petition challenged the order dated 24-1- 2006 passed by the Banking Court No.IV, Lahore to be declared illegal, void and of no legal consequence, whereby petitioner's application for consolidation of 2 suits between the parties was dismissed.
2. Succinctly, relevant facts as deciphered from the petitioners plaint under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 and counter-suit for recovery on the basis of L/C documents filed by respondents Nos.2 and 3, are that the petitioners entered into a contract with A.I. Enterprises, Lahore for supply of Australian origin Thermo Couples Immersion. This contract was to be fulfilled with within 90 days from the date of mobilization/advance i.e. 29-8-1997. To perform the contract/supply of above referred goods, on petitioners request/instructions the respondents Nos.2 and 3 opened an irrevocable confirmed Letter of Credit bearing No.800371/0813 on 13-9-1997 for US$ 224,250 in favour of Messrs Mybak Pvt.
Ltd. Sydney NSW 200, Australia with Habib Finance (Australia) Ltd., National Australia Bank House, Sydney NSW 2001, Australia as the confirming/negotiating bank. Since the petitioners were to supply the goods to purchaser in 90 days, therefore, after opening the above L/C on September, 13, 1997, the petitioners pursued the matter with Australian Exporter/Su,pplier i.e. Messrs Mybak Pvt. Ltd., who informed the respondents Nos.2 and 3 in mid-November, .1997 that the merchandise had been shipped per Vessel "HANJIN CHEJU V 761" in Container No.GTU 6164157 with Seal No.23416007., This B/L was said to be not in accord with the terms of L/C No.800371/0813 dated September 13, 1997: The petitioners allegedly by fax dated 21-11-1997 requested carrier' Agent i.e. "Land Ocean (Pvt.) Ltd." as to arriving schedule of Vessel "Hanjin. Cheju V 761" which was replied by fax dated 22-11-1997 and the said agent informed the petitioners that your Cargo Due on, CV, Damman Bay, Voy 20 W, DUE; KHI, on 26-11-1997. This fax was said to have revealed that the Vessel originally carrying the merchandise has been changed.. According to petitioners the goods had been unloaded from the Vessel at Singapore, which were de-stuffed from container and the seal was broken, as those had been restuffed into another container. New seal was allegedly affixed to the new container which was reloaded in another Vessel which originated from Singapore port with Karachi as destination. The B/L No.682266-010 was assertedly contrary to; discrepant of and in contradiction with the express terms of the Letter of Credit, besides number of other illegal acts were claimed to had been committed by the respondents Nos.2 and 3 owing to which the petitioners pleaded losses financial, as well as, to their reputation. As against it, the respondents Nos.2 and 3 attributed non-payment of the availed finance by the petitioners and pleaded that they failed to fulfil their obligations and committed default.
3. Leave to defend in both the suits was unconditionally granted to the petitioner as well as to respondents Nos.2 and 3 on 6-4-2000 and 2-2-1998, respectively. Thereafter, petitioners moved an application in their suit for its consolidation with the -suit filed by the respondent-Bank, on the grounds that dispute between the parties is related to the same Transaction/L.C; subject-matter is the same; similar evidence is required for decision of both the suits and there is likelihood of conflict of judgments. This application was opposed by the respondent-Bank and was accordingly.
Dismissed through the impugned order dated 24-1-2006.
4. Respondents in response to notice by this Court have appeared and were represented through their counsel who - could not refute the claim of the writ petitioners of decision of both the suits, out of consolidated proceedings and there was no answer with him to the judgment by the apex Court in the case of Messrs First Woman Bank Limited v. Registrar High Court of Sindh, Karachi and 4 others 2004 SCM R 108 wherein it was graciously held that trial of both the suits between the parties, out of consolidated trial was not only expedient in the interest of justice but was also in the interest of the parties and was also necessary to avoid possibility of conflict of judgments and he accordingly concurred to the prayer of consolidation of both the suits, made through instant petition.
5. In view of the above, instant petition is accepted and impugned order dated 24-1-2006 passed by the Banking Court No.IV Lahore is declared to be void and non-existent in the eye of law, with the result that Banking Court cognizant of the suit by the parties noted above, is directed to hold trial of those, out of consolidation and framing of consolidated issue, in accordance with law. There will be no order as to costs.