' MAULVI ANWARUL HAQ, J.---Through this C.M. a prayer has been made by the applicants for setting aside of the judgment and decree dated 31-1-2006 passed by Banking Tribunal-III in a suit filed by the respondent-Bank, inter alia, against the applicants.
2. Before proceeding further, I may note here that the application was dismissed by this Court on 6- 4-2002 being not competent C.A.No,592 of 2003 filed by the applicants has been allowed by the Honourable Supreme Court of Pakistan vide judgment dated 19-9-2006 and the matter has been sent back for decision on merits.
3. Learned counsel for the applicants contends that the applicants were the employee-directors of Messrs Shah Din Limited and they had not furnished any guarantee or otherwise undertaken to secure the re-payment of the loan taken by the said Company. The precise plea is that the Tribunal had no jurisdiction to pass a decree against the applicants as there was no privity as such between them and the respondent-Bank vis-a-vis the finance/loan in question. Learned counsel for the decree-holder/respondent-Bank does not controvert the fact that the applicants were the employee Directors but he insists that they had furnished personal guarantees.
4. I have examined the records of the Banking Tribunal. The applicants, namely, Muhammad Yaqoob and Sohail Ashraf were defendants Nos.6 and 7 in the plaint filed by the respondent-Bank.
In para.3 it was stated that the defendants Nos. 2 to 8 are the Directors of defendant No,1 (the said Company) having signed and executed various securities and other documents which envisaged the liability of the defendants towards the said plaintiff. In para-6 the details of the security documents have been stated and it is mentioned that these were furnished by defendants Nos.2 to
5. In para.7 the details of mortgages have been given and it is stated that these were created by defendants Nos.2, 3 and 8.
5. In the entire plaint, there is no reference to any document of any sort, of course, including a personal guarantee having been executed by the applicants. We have also checked up the entire file of the said suit, with the assistance of the learned counsel for the parties and we do not find any document including a guarantee executed by the applicants. The only letter of guarantee is available at pages 253 to 259 and this has been executed by the Chief Executive Salah-ud-Din Sahaf and defendants Nos.3 to 5 in the suit. We further find that in the reply filed by the applicants to the notice issued by the said Tribunal, it was specifically stated that they ceased to be Directors w,e,f, 30-12-1992 while the suit was instituted in the year 1995 and further they had not signed any personal guarantee and they particularly referred to the relevant paras of the plaint for this purpose. We also find that in the impugned judgment (para-4) the Tribunal itself referred to the security documents mentioned in para-6 of the plaint with reference to the relevant executants. However, it is apparent that the learned Tribunal failed to read the reply and, of course, the plaint itself while proceeding to decree the suit against the applicants as well.
6. Section 2(c) of the Banking Tribunals Ordinance, 1984 (which was the applicable law at the relevant time) defines a "customer" to mean a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes a surety and an indemnifier. Even going by the plaint, the applicants cannot at all be termed as customers within the meaning of the said law. I, therefore, do find that the judgment and decree dated 31-1-1996 to the extent of the applicants is wholly without jurisdiction. The C.M. Accordingly is allowed and the judgment and decree dated 31-1-1996 to the extent of the applicants is set aside. No orders as to costs.