1. ' MRS. QAISER IQBAL, J.--- This order governs an application under Order VII, Rule 11, C.P.C. Filed by the Defendant No,1 seeking rejection of plaint with exemplary costs.
2. ' Precisely the facts leading to the case are that the Plaintiff in a suit for Declaration and Permanent Injunction under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as Ordinance 2001) has assailed that finance agreement 16-5-1996 entered into between the plaintiff and defunct NDFC now substituted as National Bank of Pakistan has become invalidated and unenforceable due to supervising events occurred after 28th May, 1998.
3. Alternatively, a declaration has been sought regarding write off loans scheme launched by State Bank of Pakistan vide its BPD Circular 29 dated 15-10-2002 seeking benefits available on the basis of subjective criteria provided in the State Bank Prudential Regulations. It emerges out that defunct NDFC has proceeded to file a suit under Banking jurisdiction against the Plaintiff bearing No,B-207 of 2000, which was compromised under Order XXIII, Rule 3, C.P.C. And a consent decree was passed by this Court.
4. ' It is specifically pleaded by the plaintiff that its case falls within the write off Loan scheme launched by State Bank of Pakistan despite of the several meeting the deal could not be finalized subsequently the case of the plaintiff for settlement was rejected.
5. ' Learned counsel for defendant No,1 has raised following pleas in support of his contention:--
(i) That the suit in terms of prayer could not be adjudicated upon in the original jurisdiction under the Civil Procedure Code, as the case of the plaintiff after consent decree was passed against him could at best be adjudicated upon in Special Banking jurisdiction.
(ii) The plaintiff did not file a statement of accounts in terms of section 9(2) of Ordinance, 2001. The plaint is not sustainable in law.
(iii) That doctrine of res judicata is applicable to the " plaintiffs case as on the basis of same cause of action, which is accrued in the year 1998, Suit No,B-207 of 2000 was filed which was decreed by consent subsequent thereof the decree was assailed in High Court Appeal, therefore, the cause of action, if any, accrued to the plaintiff could be adjudicated in Banking jurisdiction.
(iv) At best cause of action is accrued to the plaintiff against the defendant No,2, the defendant No,1 has wrongly been arrayed, therefore, the plaintiffs plaint is liable to be rejected.
6. ' Conversely Mr. Jamshed Khan learned counsel for the plaintiff has contended that from taking into consideration the averments of the plaint at this stage, while determining an application under Order VII, Rule 11, C.P.C., a specific cause of action has accrued against both the defendants requiring adjudication of the material questions raised.
7. I have heard learned counsel for the parties and perused the record of the case. So far as the Banking jurisdiction is concerned section 7(4) of the Ordinance, 2001, vests a specific jurisdiction pertaining to the existence of a 'finance' and such exercise shall be conducted by a Banking Court having jurisdiction. The Preamble of the Ordinance 2001 specifically provides for the procedure. Its bare reading would suggest that in case where default has been committed in fulfilment of any obligation with regard to any finance, the customer may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a Financial Institution a plaint shall be verified by a duly authorized officer of the Financial Institution.
8. ' The definition of the customer as defined under section 2 subsection (c) means a person to whom finance has been extended by a Financial Institution and includes a person on whose behalf a guarantee or a Letter of Credit has been issued by a Financial Institution as well as surety or an indemnifier. The expression Finance is defined in clause (d) of section 2. Learned counsel for defendant No,1 has contended that the plaintiff falls within the definition of customer as a finance facility was extended to them within the meaning of the Ordinance, 2001 as a consequence thereof, a suit under Banking jurisdiction was filed by the defendant No,1, which was decreed. In support of the above contentions, reliance has been placed on the following case law:--
(i) Abdul Rehman Allana v. Citibank 2003 CLD Karachi 1843;
(ii) Nasim Siddiqui and others v. United Bank Limited and others 1998 CLC 1718;
(iii) Messrs Grain System (Pvt.) Limited Karachi v. Agricultural Development Bank of Pakistan Islamabad 1993 MLD Lahore 1031.
9. ' Materiality it is borne out that the plaintiff has tried to avail benefit of State Bank's BPD Circular 29, but this benefit was denied. Sought to be adjudged in the present proceedings. In any of the view of the matter, the jurisdiction available to the plaintiff was Banking jurisdiction and the suit filed by the plaintiff does not seem to be tenable in ordinary course of jurisdiction available under the Code of Civil Procedure.
10. ' Adverting to the second contention regarding applicability of section 11 of C.P.C. Learned counsel for plaintiff has contended that it is a recognized principle that in suits filed under summary chapter (Order XXXVII Rule 5, C.P.C.) empowers the Court to attach the property of the defendant arising from the facts contained therein. It is next urged that the power to grant relief necessarily implies power to take all such steps as may be needed to ensure the grant of full relief to the plaintiff otherwise shall tantamount to paper decree. It is only when the decree is satisfied that a party gets full relief and the Court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order be expressly or by necessary implication prohibited as held in case of Mohiuddin Molla v. The Province of East Pakistan 2 others PLD 1962 SC
119. The facts of the present suit are different then first suit is not barred as laid down in Qalandar Din and 4 others v. Rasul Khan 1991 SCMR 525. It is next urged that the plaintiff has filed second suit for seeking declaration and injunction based upon the fresh cause of action therefore suit is not barred under Order II, Rule 2, C.P.C. As held in case of Fayyaz Hussain v. Tahir Naseem PLD 1992 Karachi 423. It is well-settled law that for rejection of plaint under Order VII, Rule 11, C.P.C. Unless until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings. It was not possible for the Court to reach at the conclusion that the suit involved the same controversy which was decided in the earlier proceedings. In this context reliance is placed on the case of Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826, it was observed as under:- "We fail to understand as to how the above statement made by Jewan was relevant for the purpose of rejecting the plaint on the ground that it failed to disclose any cause of action or that suit instituted by him was mala fide and based on concocted facts. On the contrary the statement referred to above shows, and it is also admitted by the learned counsel for the respondents before us, that the appellants are tenants on the land in question and therefore they could not be dispossessed from there except in accordance with due process of law. The above statement of Jewan recorded by the trial Court on 22-4-1990 neither shows that the plaint had failed to disclose any cause of action nor it is sufficient to reach to the conclusion that the suit was barred on the principle of re judicata applied by the Court. With regard to the observation of the courts below that there was earlier proceedings between the parties and therefore, the present suit instituted by the appellants was barred on the principle of the res judicata may only observe that the record of the earlier proceedings is to be brought before the Court on record in accordance with law and only then it is to be considered whether the controversy decided in the earlier proceedings is the same which is agitated by the appellants in the present suit. Until such time the documents (relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings. It was not possible for the courts below to reach the conclusion that the present suit involves the `Same controversy which was decided in the earlier proceedings. We, accordingly, allow this appeal, set aside the orders of the lower Courts rejecting the _plaint under Order VII Rule 11, C. P. C.
11. ' The above question also arose, decided in case of Haji Mitha Khan v. Muhammad Younus and 2 others 1991 SCMR 2030, the element and ingredients constituting cause of action. Test of cause of action was that if what plaintiff had stated was taken to be correct, was he entitled to relief or not, in case of defect in the frame of suit, opportunity had to be allowed to the party to correct that defect and to remove the deficiency, if any, in court-fee. It is further held that vagueness of the plaint, of the relief claimed, the deficiency in the court-fee, the defective form of suit, the repugnancy of the compromise to the Islamic principles and the question of limitation were all questions which would arise only when there was a cause of action. If there was no cause of action, all these subsequent questions would not arise. The test of cause of action was that if what the plaintiff had stated was taken to be correct would it entitle him to a relief or not in law. In the case in hand the appellant clearly claimed that he had entered into a valid compromise, the defendants were party to it or bound by it, and that the rights of the plaintiff under the compromise were being violated. This would afford a cause of action to the plaintiff and it would only be on merits that he could be defeated, it was held that the claim was not within time, the compromise was not in accordance with the law applicable to the parties, then it was a decision on merits which must take place in proper form. If any defect was found in the frame of the suit or deficiency in court-fee, then an opportunity had to be allowed to the party to correct that defect and to remove the deficiency. Adverting to the bar under Order II, Rule 2, C.P.C. Nature of exception to the right of a party has to be strictly construed, and has not to be lightly inferred as held in case of Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd. Karachi and 4 others PLD 1985 Karachi 481, in a suit for possession, it was held that claim for future mesne profit not included in suit for possession a separate subsequent suit for mesne profit was not barred under Order II, Rule 2, C.P.C. Which view finds support from the case of Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63.
12. It is well-settled that the. Jurisdiction of the Court is based on the relief claimed and the Court has power to pass all such orders as may be required to the satisfaction of the decree unless any such order by express or by necessary implication is prohibited.
13. From the averments of the plaint it reflects that Suit No,B-207 of 2000 as a result of negotiations was resolved under the agreement dated May 16th 1996 the Directors of the plaintiff entered into the compromise with defunct NDFC apprehending that their names might be sent to NAB which will cause serious effect on their business resulting in financial loss would have rendered hundreds of the workers Jobless. Plaintiff has resorted to the doctrine of unconscionable bargains' by avoiding economic duress. The plaintiff approached the defendant on 2nd April, 2003 for right of its outstanding dues under the guidelines provided in State Banks BPD Circular No,29 dated 15-10- 2002, the competent authority on its part vide its letter dated 29-12-1999 waives interest on ADBP loans which were disbursed through defunct NDFC. As a consequence of imposition of economic sanctions in the aftermath of nuclear test in May 1998, the consequent withdrawal of financial assistance by the project's local and foreign lenders .The plaintiff offer to seek revival of the project undisputedly to be an end to the acceptance of all the parties concerned. The project launched by the plaintiff never materialized became sterile before it could be operational, conditions of performance of the obligation arising out of the contract and the decree passed consequent thereto in the case against the plaintiff has not frustrated and the plaintiff did, not stand discharge of its obligation arising thereto.
14. ' The defendant No,1 successor of defunct NDFC under decree in Suit No,B-207 of 2000 which has been malafidely challenged by the plaintiff based upon a compromise thereby all material questions stands adjudicated. The plaintiff in order to frustrate the execution cannot seek setting aside of the decree as it tantamount to review of the consent order. The principle of viability of the contract having been entered under duress cannot be reopened the case on the basis of undue coercion and duress. The proper remedy for plaintiff was to assail consent decree in appeal. On account of the implication of principle of promissory estoppel applicable to the compromise decree the plaintiff has surrendered all rights could no longer enforce them after filing of the compromise application in the earlier suit the allegations of the plaintiff amounts to waiver of its right therefore plea raised in the earlier suit in connection with wilful default under National Accountability Ordinance, 1999 cannot be reopened.
15. ' In view of the above circumstances, I am of the considered opinion that the plaintiff suit is barred by law, plaint is liable to be rejected under Order VII, Rules 11, C.P.C. In view of the above circumstances, C.M.A. No,7925 of 2005 is hereby allowed in above terms.