' (a) C. M. A. No, 614/79.--This is an application under section 152 read with section 151, C. P. C. Filed by defendant No, 2 J-D.2 in the above execution application, whereby the defendant No, 2 J. D.2 has prayed for the following relief "For the reasons stated and in the accompanying affidavit it is respectfully prayed that this Honourable Court may be pleased to rectify the decree by striking out the name of defendant No, 2 as J. D. 2 and the writ of attachment issued against defendant No, 2 may be recalled."
' The facts giving rise to the above application are that the plaintiffs filed a suit for the recovery of Rs, 1,00,000 in respect of the contract entered into between the plaintiff and defendant No, L In para. 11 of the plaint the following averments were made :- "That repeated requests and demands were made by the plaintiff for the payment of the amount aforesaid but the defendant No, 1 has failed to pay the said amount or any part thereof. That the defendant No, 2 is the parent establishment of the defendant No, 1 and in the said capacity the plaintiff on 26th August, 1976, sent a notice requiring the defendant to pay the said amount of Rs, 86,017. The defendants by letter dated 25th September, 1976, of the defendant No, 2, acknowledged the liability for the payment of the said amount as per the photostat copy filed herewith and marked as Annexure 'C'."
(b) It may be noticed that the only averment made in the above para. Against defendant No, 2 is that the said defendant is the parent establishment of defendant No, 1 and that in the said capacity the plaintiffs on 26th August, 1976 sent a notice requesting the defendants to pay the said amount of Rs, 86,017 and that defendants by letter dated 25th September, 1976 of defendant No, 2 acknowledged the liability for the payment of the said amount. In the plaint, the plaintiff had prayed for the following relief :- "Whereas, it is respectfully prayed that this Honourable Court be pleased to pass judgment and decree in favour of the plaintiff for Rs, 1,00,000 with interest at 3% above the bank rate of interest from the date of the institution of the suit till its recovery with costs of the suit."
2. (a) The defendants filed a joint written statement wherein the averments of para. 11 quoted hereinabove were denied. It was averred that the plaintiffs were not entitled to claim the price of the defective goods and any interest thereon as claimed. It may be noticed that defendant No, 2 did not specifically plead that it was not liable merely because of the fact that it was a parent establishment and, therefore, no issue was framed on the question as to whether defendant No, 2 was liable.
(b) After hearing the arguments of 'the learned Counsel for the parties on 9th April, 1979 I dictated the judgment in the Court in their presence, and decreed the suit in the following terms : - "I accordingly decree the suit as follows :-
(1) Rs, 86,017, i. e. Rs, 76,017 being the balance amount of the price of the goods supplied to the defendant No, 1 and Rs, 10,000 being the security deposit lying with the defendant.
(2) 9% interest from 29th November, 1976 (i. e. The date when the legal notice was served) on 76,017 till payment.
(3) Proportionate costs."
(c) From the above-quoted portion of the judgment it is clear that in the judgment it was not ordered as to whether the judgment was against both the defendants or against defendant No,
1. It may be pertinent to mention that the learned counsel for the parties did not address any argument on the above question nor the learned counsel for the defendants pointed out that no decree could be passed against defendant No, 2.
3. (a) In support of the present application Mr. Husnain the learned counsel for defendant No, 2/Judgment-debtor No, 2 has urged that though defendant No, 2 did not raise specifically the plea that it was not liable for the suit claim but on the basis of the averments in the plaint no decree could have been passed against defendant No,
2. Inff support of his above contention he has relied upon, the case of Hamdard Dawakhana (Waqf) Karachi v. Messrs K. B. Joseph Co. Ltd. Lahore (1), wherein Dorab Patel, J. (as his Lordship then was) was pleased to hold that a private limited company is a distinct entity as distinguished from persons who own its shares. It is an admitted position that defendant No, 1 is a separate legal entity as in the title of the plaint it has been described as a company duly incorporated under the Companies Act, 1913 and having its registered office at State Life Insurance Building No, 2 Dr. Ziauddin Ahmed Road, Karachi. It is also an admitted position that defendant No, 1 is a nationalized company and its management was taken over under the Economic Reform Order, 1972. Whereas defendant No, 2 is also a company incorporated under the Companies Act, of which the entire holding is vested in the Government of Pakistan which is clear from the Memorandum and Articles of Association submitted by Mr. Hasnain.
(b) The learned counsel for judgment-debtor No, 2 has also referred to the case of Badruddin H.
Bawany v. Messrs Commerce Bank Ltd. (2), wherein a Division Bench comprising of Dorab Patel and Agha Ali Hyder, JJ (as their Lordships then were) were pleased to hold that notwithstanding the nationalisation of the banks by virtue of section 16 of the Bank Nationalisation Act, 1974 the banks continued to be legal entities independent of the Federal Government. It may be observed that in a recent case, viz. Dorab Shah B. Data! v. Messrs Muslim Commercial Bank Ltd. (3) the Supreme Court also took a similar view and held that the rights and obligations pre-nationalisation period continued to subsist hence proceedings started against the bank could be continued by the successor bank. It was further held that the contention that upon nationalisation of the bank all contracts and liabilities ought to be in the name of the Federation was not correct.
(c) It was fairly conceded by Mr. Mohsin Tayabally the learned counsel for the plaintiff/decree- holder that the fact that the judgment did not specify against which of the two defendants the decree was, was an accidental slip or omission within the scope of section 152, C. P. C. In my view on the basis of the averments in the plaint and the evidence on the record no decree could have been passed against defendant No,
2. The only averment made in the plaint against defendant No, 2 was that it was a parent establishment of defendant No,
1. It may be pointed out that the suit was for a breach of contract entered into between the plaintiffs and defendant No,
1. Admittedly there was no privity of contract between the plaintiffs and defendant No, 2 and therefore, in the absence of any additional facts or pleas, defendant No, 2 could not have been made liable for the breach of the contract committed by defendant No,
1. Nor there was any acknowledgment/undertaking on the part of defendant No, 2 to pay on behalf of defendant No, I. A perusal of the judgment will indicate that I intended to pass the decree against defendant No, I only.
(2) PLD 1975 Kar, 182
(3) PLD 1977 SC 457 ' I, therefore, order rectification of the judgment/decree to the extent that at page 12 of the judgment after the words "I accordingly decree the suit as follows", the word "defendant No, 1" be added. The decree should also accordingly be amended. The writ of attachment issued against defendant No, 2/judgment-debtor No, 2 stands withdrawn.
Order rectified.