1. ' SYED PIR ALI SHAH, J.---Both the titled suits are between the same parties in respect of recovery of sums and almost on the same grounds. In both these suits the respective written statements/applications under section 10 of the Financial Institutions (Recovery of Finances)
2. Ordinances, 2001 filed by the defendant were heard together.
3. ' Learned counsel for the defendant raised preliminary objections with regard to the maintainability of the suits on the basis that suit is not maintainable for mis-joinder and non-joinder of proper party and that the plaints do not disclose any cause of action.
4. ' Through titled written statements, which are also applications under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 prayer is made to allow the defendant leave to defend this suit. In the written statements/applications, the defendant has denied all the adverse allegations made against it and further mentioned that the defendant i,e, NDLC-IFIC Bank Ltd. Was not incorporated at Karachi on 5-3-2003 under the Companies Ordinance, 1984 but this written statement is filed on behalf of the defendant's Karachi Branch to be on safe side only. It is further stated that the defendant was incorporated under the Companies Ordinance, but S.B.P. Issued a letter dated 19-4-2003 under section 27 of the Banking Companies Ordinance, 1962 allowing establishment of defendant Bank subject to 14 conditions which are yet to be fulfilled in toto and has only issued license dated 21-4-2003. This entity has to submit required capital of Rs,1.0 Billion and the scheme of amalgamation of NDLC with the Pakistani Branches of IFIC Bank Ltd. Is still to be approved by S.B.P. It is also stated that the NDLC Ltd. And the Pakistani Branches of IFIC Bank Ltd.
5. Will be amalgamated and merged with and into NDLC/IFIC Bank Ltd. In accordance with section 48 of the Banking Companies Ordinance, 1962. Thus NDLC/ IFIC Bank Ltd. Cannot be termed a "Financial Institution" within the definitions of (Recovery of Finances) Ordinance, 2001. The said provision makes it mandatory that in order to be treated as a Financial Institution under the Ordinance, the company must transact the "business of banking" or any associated ancillary business in Pakistan. The defendant NDLC/IFIC Bank Ltd. Is not transacting such business so far and therefore, on this ground the above suit/plaint is liable to be rejected outright. It is also mentioned that the Karachi Branch of IFIC inter alia or Bangladesh is a distinct entity and in any case the branch is not liable for any commitments of the head office, which is situated in Dhaka in Bangladesh. This assertion does not mean that IFIC Bank Ltd. Having its head office at Dhaka is liable to the plaintiff for the plaintiff for the suit amount for any part thereof. It is further mentioned that the MOU was between IFIC Bank Ltd. Having its head office at Dhaka and the other party to the MOU was not the plaintiff but Chittagong Dyeing Finishing and Printing Mills Ltd. Of Chitagong. The MOU refers that the plaintiff has dealings with IFIC Bank Ltd. In Bangladesh and had obtained loan and credit facilities. It has also been mentioned that the plaintiff company is not signatory to the said MOU and in any case the claim of the plaintiff based on the MOU is time-barred as the MOU is of 1-9-1994 and the above has been filed in May, 2003. It is also mentioned that claim of the plaintiff in US Dollars is time-barred. Besides the original bills have not been produced. It is mentioned that U.B.L. Earlier filed a suit in respect of the same subject-matter which was dismissed by this Court vide judgment dated 14-3-2001 later reported as 2001 CLC 1172 wherein at page 1178-9 that any claim was to be made against IFIC Bank Ltd. It could only be in Bangladesh as IFIC Bank Ltd. Karachi Branch is not a borrower or customer within the meaning of the Banking Companies (Recovery of Loans, Advances, credits and Finances) Act, 1997 and that under UCP 500 a branch of a Bank in a different country cannot be sued as per provision of Article 2(III) of UCP 500 which controls all documentary credits. It is also mentioned in the judgment that joining of IFIC Bank Ltd. Karachi branch in U.B.L. Suit was malicious. It is stated that again the U.B.L assailed judgment dated 14-3- 2001 in an appeal before the Division Bench of this Court in which the name of defendant was also deleted vide order 25-3-2003 being not a proper party and thereafter the appeal ended in compromise with which the defendant has no concern as he was not party at that time. It is further mentioned that inter alia the claim of the plaintiff is time-barred and the defendant as described in the title is not yet an amalgamated Bank since S.B.P. Sanction for amalgamation has not been given. Besides there are other reasons for dismissal of the above suit as stated above. It is also mentioned that cause of action arose to the plaintiff against the defendant as liability, if any, of IFIC Bank Ltd. Head office Dhaka cannot be --abject matter of the above suit and IFIC Bank Ltd. Karachi branch is not liable in any amount to the plaintiff even against the Head office of IFIC the plaintiff has to prove his claim.
6. ' Learned counsel for the plaintiff in rebuttal filed replication to this written statement/application under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to defend the suit. In this replication the plaintiff has denied the plea taken by the defendant and stated that the suit was not barred by principle of res judicata. It is also mentioned that the matter was compromised reserving the right of initiating legal action against IFIC Bank Bangladesh for recovery of the same, if needed thus this suit is in compliance of the judgment of this Court passed in HCA No,167 of 2001. It is also stated that if the defendant and/or its predecessor had any grievance against the terms of the judgment and decree passed earlier by this Court, they ought to have filed an appeal against it but they did not file such an appeal hence, the judgment of this Court passed on appeal attained finality. It is also stated the principle of res judicata would not be applicable in the present proceedings as one of the conditions for applicability of res judicata as held by the Honourable Supreme Court of Pakistan in case of Province of Punjab v. Malik Ibrahim and Sons reported as 2000 SCM R 1172 was not fulfilled. It is also stated that the amalgamation has been sanctioned by the State Bank of Pakistan and the defendant has been authorized to conduct and/or continue the business of Banking in Pakistan by virtue of Notification No,BPD (PU- 31)/625/12695 of 2003 dated 2nd October, 2003 on account of its merger with NDLC-IFIC Bank vide S.B.P. Order dated 17-9-2003 passed under section 48 of the Banking Companies Ordinance, 1962 and the plaintiff reply upon this Notification. It is stated that the IFIC Bank Limited Karachi Branch and IFIC Bank Limited, Head office Dacca are one and the same juristic personality. It is also mentioned that the MOU is an agreement made by consent of parties competent to contract for a lawful consideration and with a lawful object and as such is a contract as defined in section 10 of the Contract Act, 1872. It is mentioned that according to the MOU, IFIC agreed to take over and assume the total liabilities. It is stated that the cause of action arose to the plaintiff for non- payment of export bills as demanded by the notice of the State Bank of Pakistan dated 29-10-2002 and further by the amalgamation of defendant as a Banking Company incorporated in Pakistan during 2003 and finally by the judgment and decree passed by this Court on 20-3-2003 in H.C.A.
7. No,167 of 2001. It is stated that the plaintiff was authorized to file an appropriate claim sustainable under the law, which is the present suit.
8. The defendant raised preliminary objections in the written statement filed in this suit. It is stated that the suit filed by the plaintiff is hit by the principle of res judicata that this Court has no banking jurisdiction against NDLC/IFIC Bank Limited. It is further pleaded that the defendants are not carrying on business of banking in terms of section 9(a)(i) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The claim of the plaintiff is non-banking jurisdiction and it does not lie as no cause of action accrued at Karachi or elsewhere in Pakistan. It is stated that the defendant is neither a customer nor is the plaintiff a financial institution which may have advanced finances to the defendant. That there is no privity of contract directly and indirectly between the plaintiff and the defendant. Neither the defendant nor IFIC Bank Ltd. Karachi Branch executed the Memorandum of Understanding dated 1-9-1994 which on the face of it states that it is entered into by IFIC Bank Ltd. Head Office, Dhaka and Chittagong Dyeing Financing and Printing Mills Ltd. Chittagong and the MOU was executed in Bangladesh. The plaintiff allegedly importer/ defaulter is not a party in the above suit but its alleged liabilities have been asserted to have been taken over by IFIC Bank Ltd.
9. Head Office, Dhaka vide said MOU. It is stated that the U.B.L. Has already received payment for the goods which shows that the entire goods have been sent through letters of credits from Pakistan to Bangladesh. These preliminary objections can be reflected in the shape of issues and the matters will be decided after proper appraisal of the evidence. The suit filed by the plaintiff is for recovery of US Dollars 906,965,000 with further prayer to attach the assets and securities of the defendant held by the State Bank of Pakistan and mark-up at the rate of 20% per annum from the date of default till realization which Cannot be summarily disposed of. Let the parties may have an opportunity to adduce their evidence and the matters may be decided on merit.