' ANWAR ZAHEER JAMALI, J.- This High Court Appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is directed against the judgment and decree dated 1-9- 2005 and 16-9-2005 respectively, passed by the learned Banking Judge of this Court in Suit No,B- 178 of 2000, whereby the said suit for recovery of Rs,163,17,804.84 instituted by Messrs National Development Finance Corporation (now merged with the appellant National Bank of Pakistan) on 18-9-2000 was dismissed on the sole ground, that it was instituted by a person not competent to- do so.
2. The relevant facts gathered from the case record are that in the above-referred suit for recovery instituted by appellant predecessor Messrs National Development Finance Corporation, leave to defend application submitted by the respondents was granted, and from the pleadings of the parties, following two issues were framed by the Court on 1-2-2001;-- "(1) Whether the suit has been filed by authorized person?
(2) What amount if any is due and form which of the defendant?"
3. After recording of parties' evidence on the above issues, the arguments of learned counsel were heard, where after the learned Banking Judge answered the Issue No,1 in the negative with the following observations:- "8. In the present case the plaintiffs had passed the resolution authorizing Zafar Iqbal to conduct the business of Corporation, therefore, the said business is to run by Zafar Iqbal alone or by some person duly authorized by, him to carry out such functions. As the plaintiffs have failed to produce power of attorney given by Zafar Iqbal authorizing Mutiullah, Khan to file the suit, therefore, he is not competent to file the present suit. As such a competent person has not filed the suit, hence the plaint is nonexistent in the eye of law for all intents and purposes, therefore, the suit is liable to be dismissed. Reliance is placed on Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. PLD 1966 SC 684 and Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd, PLD 1971 SC 550."
' And consequently dismissed the suit of the appellant, only on this account,
4. Mr. Muhammad Aslam Butt learned counsel for the appellant, at the outset, vehemently contended that the findings of fact recorded by the learned Banking Judge, that the power of attorney executed by Mr. Zafar Iqbal in favour of Mr. Mutiullah Khan was not produced in Court, is factually incorrect, as, such power of attorney was filed in the suit along with the Vakalatnama at the very time of institution of suit and it was all along available in the suit file and for this short reason alone the findings of the learned Banking Judge on Issue No,1 contained in the impugned judgment, being based on misreading of case evidence, are liable to be set aside.
5. In reply, Dr. Muhammad Farogh Nasim learned counsel for some of the respondents in this appeal did not dispute this factual assertion, rather he conceded to this position. He, however, supported the impugned judgment by making reference to section 20 of the National Development Finance Corporation Act, 1973 (Act XIII of 1973). He contended that such provision of law had not authorized the Board of Directors to delegate the power of sub-delegation to any person, therefore, subsequent Gazette Notification published in the Gazette of Pakistan dated 29-8-1997 relating to the Resolution No,0025 of 1997 dated 29-5-1997 passed by the Board of Directors of National Development Finance Corporation and the consequent execution of power of attorney dated 29- 5-1997 by the Directors had not legally empowered the Chairman. Mr. Zafar Iqbal to further delegate any power, delegated to him through this process to Mr. Mutiullah Khan or any other person. Thus, delegation of such powers by him to Mr. Mutiullah Khan vide power of attorney dated 11-4-1998 was of no legal consequence. In support of his arguments, he placed reliance on the following cases:--
(1) Bankers Equity Ltd. And 5 others v. Sunflo Cit-Russ Ltd PLD 1999 Lah. 450, (2) Messrs Secretary Leasing Corporation Ltd. And 3 others v. Diamond Food Industries Ltd. 2003 CLD 861, (3) Tahira Haq v. A.H. Khan Niazi, Additional Commissioner (Revenue), Multan and others PLD 1968 Lah. 344, (4)
Phullan (deceased) through L.Rs, and others v. Muhammad Sarwar and 2 others 1992 CLC 1975, (5)
National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar.
260, (6) Khalil Ahmed and others v. Mst. Muhammad Jan and others 2004 SCMR 1034.
6. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record as well as the R&P's of Suit No,B-178 of 2000 called from the office. It is evident from the record that while passing the impugned judgment the learned Banking Judge of this Court has recorded his findings on Issue No,1 in the negative for the sole reason that the power of attorney given by Mr. Zafar Iqbal authorizing Mr. Mutiullah Khan to file the suit was not produced by the appellant. The factual position is not only strongly questioned by Mr. Muhammad Aslam Butt, learned counsel for the appellant, with specific reference to such power of attorney filed in the suit file, but Dr. Muhammad Farogh Nasim has also conceded to the position that copy of such power of attorney was filed in the suit at the time of its institution, which is still available in Court file.
We have also verified this fact from the R&P's of Suit No,B-178 of 2000, and seen that a copy of power of attorney in favour of. Mr. Mutiullah Khan was filed in the suit at the time of its institution and photostat' copy of such power of attorney, received by the concerned Officer of this Court under his signatures and the seal "original seen and returned" is available along with the Vakalatnama of Messrs Zahid F. Ebrahim, Faisal Arab Advocates, dated 16-9-1999. In addition to it another photostat copy of same power of attorney dated 11-4-1998, executed by Mr. Zafar Iqbal Chairman National Development Finance Corporation in favour of Mr. Mutiullah Khan is also available with the counter-affidavit of Mr. Mutiullah Khan dated 22-11-2000 as its Annexure "A".
7. In our opinion, in such circumstances, even if formally .Copy of such power of attorney was not produced in evidence still the same could have been looked into, to verify the legal status and authority of the person under whose signatures/verification on oath suit was instituted, so as to avoid failure of the suit on mere technical lapse, not otherwise affecting the merits -of the case. If any case-law is needed to fortify this view, reference can be made to the case of Nathe Khan v.
Mst. Rehmat Bibi PLD 1961 BJ 96. It is therefore, obvious that the institution of the suit and verification of the plaint by Mr. Mutiullah Khan, being duly competent and authorized person on behalf of the plaintiff Messrs National Development Finance Corporation, was valid and legal.
8. In order to examine the other.:contention raised by Dr. Muhammad Farogh Nasim to support the impugned judgment, it will be advantageous to reproduce hereunder section 20 of Act XIII of 1973, relevant Resolution No,0025 of 1997 passed by the Board of Directors of National Development Finance Corporation in its 148th meeting dated 29-5-1997 and the relevant clause viz. Clause (28).
Of the power of attorney dated 29-5-1997,, in favour of Mr. Zafar Iqbal executed in furtherance to the Board resolution referred to above, and also the relevant clause viz. 12 and 13 of the power of attorney dated 114-1998 executed by Mr. Zafar Iqbal Chairman, National Development Finance Corporation in favour of Mr. Mutiullah Khan son of Abdul Majeed Khan.
"20. Delegation of powers.- The Board may, for the purpose of ensuring efficient functioning of the Corporation and facilitating transaction of the daily business, by a resolution published in the official gazette, delegate to the Chairman or any other officer of the Corporation, subject to such conditions and limitations, if any, as may be specified therein, such of its powers and duties under this Act as it may deem necessary."
Resolution No,0025 of 1997, dated 29-5-1997 "National Development Finance Corporation ' Resolution No,0025 of 1997, passed by the Board of Directors of National Development Finance Corporation in its 148th Meeting held on May 29, 1997.
' Delegation of powers to the Chairman under section 20 of the NDFC Act and authority to sign a power of attorney 'in his favour. The following resolution was passed: ' RESOLVED. (i) That the Chairman, Mr. Zafar Iqbal, be issued a General Power of Attorney granted to his predecessor enabling him to exercise the authorities delegated to him and that any two Directors of Corporation be and are hereby authorized to sign the power of attorney and take all further steps as may be required to make the same fully valid and effective.
(ii) That the exercise of the powers and authorities delegated by the above resolution, the Chairman shall report to the Directors at the next meeting of the Board on all loans and advances granted or guaranteed by the Chairman to an eligible enterprise or the subscription to the capital of such enterprise, of the investment in shares, bonds, debentures, participation term finance certificates or term finance certificates of such .Enterprise or other provision of financial assistance thereto in any other manner as authorized under paragraph 3 of the Resolution delegating powers and duties to the incumbent from time to time of the office of the Chairman of the Corporation.
(iii) That the appointments as attorneys authorized to act on behalf of the Corporation or its Chairman of all such persons who are presently in the employment of the Corporation whether as officers or executives or other staff under powers of attorney presently in force and granted by the present or any prior incumbent of the office of the Chairman of the Corporation and all such powers of attorney as aforesaid whether special or general and the powers thereby granted be and are hereby ratified and confirmed and shall remain valid and in full force and effect until revoked.
' Certified to be true copy.
Khalid A. Tanwri, Secretary."
Clause 28 of Power of Attorney dated 29-5-1997 in favour of Mr. Zafar Iqbal.
"28. To appoint from time to time any persons to be the attorneys, agents, nominees, proxies and/or representatives of the Corporation with such powers (including power to sub-delegate) and upon such terms as he may.Think fit."
Clauses 12 and 13 of Power of Attorney dated 4-11-1998 in favour of Mr. Mutiullah Khan.
"12. To sign and verify all plaints, written statements, petitions, claims, objections, memoranda of appeal and petitions and applications of all kinds and to file them in any Court, Tribunal or office.
13. To appoint any legal practitioner, solicitor, pleader, Advocate or barrister to appear and act for the Corporation and to represent the Corporation in any matter and to fix and pay the remuneration of any such person."
9. Upon careful reading of section 20 of Act XIII of 1973 one can see that under this provision of the statute the Board of Directors of National Development Finance Corporation was fully authorized to delegate to the Chairman or any other officer of the Corporation such of its powers and duties under the Act subject to such conditions of limitation, as it may deem necessary, and copy of such resolution was to be published in the official gazette. Thus, from the plain reading of section 20
(ibid) it is clear that the Board of Directors was duly authorized to delegate its powers and duties, subject to such condition and limitation, which it may deem .Fit. Keeping in view the clear language of section 20 (ibid) when the Board Resolution dated 29-5-1997 is perused, one can easily see that by this resolution unrestricted powers were delegated to Mr. Zafar Iqbal, even to appoint other attorneys on behalf of the Corporation. This position is further clarified from the power of attorney dated 29-5-1997 executed by the Directors on behalf of the National Development Finance Corporation in favour of Mr. Zafar Iqbal, which had authorized him to appoint further attorneys and agents including further power of sub-delegation. Thus, it was on the basis of this unbroken chain of delegation of powers from one stage to another, that on 11-4-1998 i,e, much before the institution of the suit, the signatory to the plaint Mr. Mutiullah Khan was holding power on behalf of National Development Finance Corporation for institution of the suit and verification of plaint on oath. This being the factual position the institution of Suit No,B-178 of 2000 under the signatures sand verification of Mr. Mutiullah Khan was strictly in accordance with law.
10. Moreover, as evident from the Board resolution dated 29-5-1997, powers on behalf of National Development Finance Corporation delegated to Mr. Zafar Iqbal were not subject to any limitation.
Though such limitations could have been imposed by the appellant-Corporation in terms of section 20 of Act XIII of 1973. In this regard we may also mention that where the intention of law- makers had been that the delegatee should not further delegate the delegated power to any other person, then such provision could be incorporated in the statute itself. Here a reference to section 210 of the Income Tax Ordinance, 2001, which, looking to its object, i,e, delegation of powers, is "pari materia" to section 20 of the Act XIII of 1973 will be useful, which reads thus:-- "210. Delegation. --- The Commissioner may, by an order in writing, delegate to any Taxation Officer all or any of the powers or functions conferred upon or assigned to the Commission subject to subsection (1A), under this Ordinance, other than the power of delegation, (1A) The Commissioner shall not delegate the powers of amendment of assessment contained in subsection (5A) of section 122 to a Taxation Officer below the rank of Additional Commissioner of Income Tax.
(2) An order under subsection (1) may be in respect of all or any of the persons, classes of persons or areas falling in the jurisdiction of the Commissioner.
(3) The Commissioner shall have the power to cancel, modify, alter or amend an order under subsection(1)."
' Thus, a comparative reading of section 20 of Act XIII of 1973 and section 210 of the Income Tax Ordinance, 2001 makes it further clear that the arguments of Dr. Muhammad Farogh Nasim that by virtue of section 20 of the Act XIII of 1973 the Board of Directors could not have either resolved or conferred powers to the Chairman Mr. Zafar Iqbal to further delegate or sub-delegate such powers to any third person have no force.
11. There is no cavil to the proposition of law as regards delegation of powers, propounded in the cases cited at the bar by Dr. Muhammad Farogh Nasim, but in the facts and circumstances of the case, as discussed above, which show proper and legal delegation of powers firstly in favour of Mr. Zafar Iqbal and thereafter, in favour of Mr. Mutiullah Khan, these cases are distinguishable and have no applicability in the present case. The ratio of two cases referred by the learned Banking Judge in the impugned judgment was also misapplied, having no applicability to the facts of the case in hand.
12. Foregoing are the reasons for our short order whereby this appeal was allowed, impugned judgment and decree were set aside, and case was remanded to learned Banking Judge for disposal of Suit No,B-178 of 2000 in accordance with law.