' MUHAMMAD JUNAID GHAFFAR, J.---Through the instant petition the petitioner has impugned the action of respondent No, 1 whereby the complaint of the petitioner against the respondent No 2 (Askari Commercial Bank Limited) is not being attended', to, and has sought the following prayers:- "(a) Direct respondent No,1 to conduct a transparent independent and diligent :investigation into the affairs of respondent No,2 in pursuance of the petitioner's complaint dated 23-7-2011 and to dispose of the same in an expeditious manner and furthermore to report the violations on the part of respondent No,2 to respondent No,3.
(b) Direct respondent No,1 to make and pass such-appropriate orders and take such remedial steps against respondent No,2 as may be required in accordance with law including cancellation of license of respondent No,2 in accordance with section 27 read with sections 40(A) and 41 of the 1962 Ordinance and in accordance with law.
(c) Declare that the aforementioned failures and omissions of respondent No,1 to act in accordance with law and furthermore, the act of respondent No,1 in appointing respondent No,2 to investigate its own affairs is illegal, without lawful authority and of no legal effect or consequence.
(d) Grant mandatory injunction directing respondent No,1 to freeze the reserve fund/case reserves of respondent No,2 lying with respondent No, 1 .
(e) Grant cost of the petition.
(f) Grant any other relief, additional and/or moulded as the Hon'ble Court may deem fit or proper and/or necessary in the circumstances of the case."
2. Briefly, the facts of the case are that the petitioner being aggrieved by the alleged fraud being played upon by the respondent No,2 had made a complaint before the respondent No, 1 to initiate and conduct inquiry with regard to the said alleged fraud. The petitioner is aggrieved by the failure of respondent No, 1 to act dutifully, equitably and as per the mandate of law in a transparent, fair and legal manner which according to the petitioner is the responsibility of the respondent No,1 as a regulator of the affairs of the Banking Companies under the Banking Companies Ordinance, 1962 ("Ordinance 1962"). It is further stated that on 23-7-2011 petitioner filed a complaint before the respondent No, 1 in which the primary allegation of the petitioner is that the respondent No, 2 with ore Mian Khurram Rasool jointly and collusively played a fraud upon the petitioner by opening the accounts using the abbreviation of Government and Public Corporation and entities and further, that when cheques were issued by the petitioner and its associated companies,. The same though, were in the name of such Government/Public Corporation and Entities were en-cashed in the accounts of various companies having the, same abbreviation and according to the petitioner such Conduct of the respondent No, 2 was violative of the various provisions of the Ordinance 1962 and therefore the petitioner made a complaint before the respondent No,1 to initiate an inquiry so as to investigate the alleged conduct of the respondent No,
2. It is further stated that the respondent No,1 instead of carrying on any inquiry or investigation on its own, referred it to respondent No, 2 itself and sought an inquiry which per the rules and law was not appropriate.
Subsequently the respondent No, 1 has replied to the petitioner vide its letter dated 16-12-2011 and informed the petitioner that since the dispute is pending adjudication in the High Court in various Civil Suits the respondent No,1, as pex policy does not take up matters which are sub judice. Being aggrieved by this conduct of respondent No, 1 the petitioner has filed the instant petition.
3. Mr. Abdul Hafeez Pirzada Advocate ably assisted by Mr. Abdul Sattar Pirzada Advocate have contended that the petitioner has only sought relief in the instant petition to the extent that it was incumbent upon the respondent No, 1 to attend the complaint of the petitioner and nothing else.
Per learned counsel the pendency of civil suits has no relevance to the instant matter inasmuch as the respondent No, 1 is not a party in those suits, and moreover there are no restraining orders operating in such suits. It was further contended that even otherwise the Suits are independent in nature for the recovery of the amount fraudulently credited to the fictitious accounts. Learned counsel submitted that they would be satisfied if a direction is issued to the respondent No, 1 to conduct an independent and fair inquiry under the Ordinance 1962 which was the duty of the respondent No 1. Learned counsel relied upon the case of Muhammad Ashraf u. United Bank Limited through President and 3 others (2009 CLD 1250).
4. Mr. Yousuf A. Saeed learned counsel appearing on behalf of the respondent No, 1 contended that since the matter is pending in two separate Suits before this Hon'ble Court, therefore the petitioner was informed that it would not be proper for the respondent No 1 to take any action in the matter which is sub judice. Learned counsel, however further submitted that respondent No, 1 is ready to implement any orders that may be passed by this Court in the instant petition despite pendency of the said Civil Suits.
5. Mr. Jam Asif Ali Advocate for respondent No 2, vehemently opposed to the grant of petition and contended that since the Civil Suits are in respect of the same issue, therefore the instant petition is not maintainable and liable to be dismissed. Learned counsel further contended that the petitioner in the instant petition is not the aggrieved party as the cheques were issued by some other companies and therefore the petitioner has no locus standi to seek any relief from this Court.
6. We have heard all the learned counsel and have perused the record with their assistance of.
Since a short controversy is involved, by consent, on 14-2-2013 it was directed that the matter will be decided at Katcha peshi stage.
7. It appears that the only controversy in the instant petition is, that whether or not the respondent No, 1 has an obligation under the law, to entertain and to attend the complaint of the petitioner within the contemplation of various provisions of the Ordinance 1962. It appears that the respondent No, 1 vide its letter dated 16-12-2011 as referred to above has refused to attend the complaint of the petitioner as some litigation is pending before this Court between the petitioner and the respondent No 2, and is the only cause of action to the petitioner, for which the instant petition has been filed. From the perusal of the memo of petition and the prayer clause it is manifestly clear that the petitioner has not sought any adjudication on merits of the case in the instant petition. It would be advantageous to reproduce the letter dated 16-12-2011 issued by the respondent No, 1 to the petitioner which is in the following terms:-- "No, CPD(RD-03)4-2011/5280 16th December, 2011 Mr. Pervaiz Hussain and Mr. Sameer Pervaiz Hussain, House # 3 Khayaban-e-Shahbaz Phase 6, Defence Housing Authority, Karachi.
COMPLAINT AGAINT ASKARI BANK LIMITED REGARDING INVOLVEMENT IN CRIMINAL FRAUD ' This is with reference to your complaint dated 29-7-2011 on the captioned subject.
' In the context, we would like to inform you that the matter was taken up with the concerned bank for clarification. From their report it transpires that the dispute is pending adjudication in Sindh High Court. We regret to inform you that SBP, as per policy does not make up matters which are sub judice. Yours truly, Sd/- (Barkat Ali)
Deputy Director"
8. From the perusal of the contents of the above letter we are not satisfied that merely pendency of a lis before this Court between the parties is an impediment for the respondent No, 1 to conduct any inquiry or investigation within the Ordinance 1962, as firstly the respondent No, 1 is not a party to such disputes. Secondly, even otherwise, we have been informed that there is no restraining order operating in the said cases. Therefore, the reason assigned by the respondent No, 1, for not proceeding any further on the complaint of the petitioner is not tenable. Further, the respondent No, 1 is a regulator of the affairs of the Banking Companies operating in the Country and it is the primary duty and responsibility of the respondent No, 1, to attend to any such complaint of an account holder or depositor. The respondent No,1 is vested with the controlling and regulating authority under the Ordinance 1962 and has a statutory duty to give necessary directions to a Banking Company in order to prevent the affairs of a Banking Company being conducted in a manner which is prejudicial or detrimental to the interest of the Banking Company as well as the general depositors. As a regulator, the respondent No, 1 is duty bound to see as to whether the Banking Companies are working within the framework of law and specially the Ordinance 1962 and relevant circulars and instructions issued by the respondent No,
1. If needed, reference may be made to the provisions of sections 34 (Accounts and Balance Sheets), 35 (Audit), 40 (Inspection) and 40A (Responsibility of State Bank) of the Ordinance 1962, which empowers the respondent No,1 to oversee the operations of any Banking Company. There is a full mechanism of internal as well as external audit of the Banking Companies and the respondent No,1 cannot absolve itself from proceeding on any complaint merely for the fact that there is a dispute pending before the Court of law. It is also the duty of the respondent No,1 to act as an independent and non-partisan regulator and to protect the rights of the depositors as well as the Banking Companies, therefore it is observed that the respondent No,1 is to act within the framework of the law and the rules governing such dispute i.e, if the accounts are opened by the Bank with some mischief or in a non- transparent manner and further, if any cheques are credited to any such account(s) then the respondent No, 1 is required to at least inquire and investigate independently on its own and to see as to whether any such alleged misconduct has been done by the Banking Company concerned.
This is so, for the reason, that otherwise the confidence of the depositors would be lost as a parallel banking system would evolve, whereby people instead of depositing money with the Banking Companies, would opt for such parallel banking system, which even otherwise is generally getting increased response from depositors. Therefore we are of the view that if there is a complaint before the respondent No 1 regarding the affairs and conduct of a Banking Company, then it is incumbent upon it to see that whether or not if there is any default in the statutory performance of duty, patently on record, by the Banking Company, so as to take corrective and necessitated measures in accordance with the Ordinance 1962 and relevant rules and directions and or circulars on the issue in hand.
9. In view of herein above, we are of the view that the petitioner has been able to make out a case for indulgence from this Court as it has only prayed to the extent, that the respondent No,1 shall conduct a transparent and independent investigation in the affairs of the respondent No,2 vis-a- vis the complaint of the petitioner, accordingly we are of the view that such prayer is to be granted therefore the instant petition is allowed to the extent that the respondent No,1 is directed to attend to the complaint of the petitioner dated 23-7-2011 and conduct an independent investigation, and thereafter proceed and take action in accordance with law. The respondent No,1 may conduct such investigation on its own, or may refer the matter to any Commissioner including the Banking Ombudsman and or an independent Chartered Accountant/Auditors without being influenced by the fact that some litigation is pending between the petitioner the and respondent No,2. Needless to say that such inquiry/investigation is to be conducted after taking into consideration the objection(s) being raised by the respondent No, 2 and with a proper opportunity of hearing to all the parties.
10. The instant petition is disposed of in the above terms.