' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The appellants filed an interpleader suit impleading the respondents a party to the suit, claiming that appellant No,1 is a public limited company and is wholly owned by appellant No,2, the Water and Power Development Authority (hereinafter referred to as WAPDA). The respondent No,1 is a private limited company incorporated under the Companies Ordinance, 1984 fully owned by Federal Government, the respondent No,2 is a public limited company incorporated under the Companies Ordinance, 1984 engaged in the business of financial management services, the respondent No,5 is a trustee of the respondent No,2 under a written trust deed, the respondents Nos.3 and 4 are the Banking Companies engaged in the banking business. The appellant No,1 under an agreement and undertaking dated 15-11-2005 issued SKUK Certificates valuing Rs,8.000,000,000 (Rupees Eight Billion) (hereinafter as CERTIFICATES), itself and through Central Depository Company (hereinafter referred to as the CDC) established under the Central Depositary Act, 1977, the certificates were to be matured in the month of October, 2012. Muslim Commercial Bank under an agreement was to pay the rental payable on the certificates on behalf of appellant No,1 on every 22nd of April and 22nd of October of each year till 22nd October, 2012. Citi Bank NA was also acting the paying agent of the certificates. Jahangir Siddiqui and Company is designated reference agent and WAPDA Bond Cell is the Registrar of the Certificates.
2. The respondent No,1 purchased 300 Certificates valuing Rs,750,000,000, the Citi Bank NA was paying regularly the accrued rental of the certificates to its purchasers when on 12-2-2009. The appellants received a letter from respondent No, l's Deputy General Manager (Accounts) informing that they have sold certificates, valuing Rs,180.00 Million out of their total holding of Rs,750.000,000 to Messrs Swift Engineering Solutions and surrendered 72 original certificates for transfer in the name of Messrs Swift Engineering Solutions, the appellants accordingly transferred the seventy two certificates in the name of Messrs Swift Engineering Solutions.
3. The appellants claimed that, it seems, _Messrs Swift Engineering Solutions sold their certificates to respondent No,2 against a consideration of Rs 190,000,000 as on 14-3-2009 the respondent No,2 requested to appellants for the transfer of their certificates to CDC. The appellant on 17-3-2009 on the request of respondent No,2 transferred their certificates to CDC. On 25-4-2009, respondent No,1 through its Deputy General Manager informed the appellants that they have not sold certificates valuing Rs,180,000,000 to anyone, the appellants on 27-4-2009 provided to the respondent No,1 the details of transferred certificates valuing Rs,180,000,000. On 28-4-2009 the respondent No,1 denied the issuance of letter dated 12-2-2009 and informed that any transaction made on the basis of letter dated 12-2-2009 is illegal and is not binding on them.
4. The appellants conducted inquiry and it revealed to them that 72 Certificates which the respondent No,1 surrendered were fake. The appellants on receipt of respondent No,1 complaint requested respondent No,5 to stop further transfer of these 72 Certificates despite the appellants' request the respondent No,5 continue to allow the sale and purchase of the disputed Certificates, the last purchasers through respondent No,5 are the respondents Nos.3 and 4 purchased disputed Certificates. The Federal Investigation Agency investigated the complaint and found that disputed Certificates and letter dated 12-2-2009 were fake. But the respondent Nos.2 to 4 claim themselves to be the rightful owners of the disputed Certificates and refused to return and refund an amount of Rs,13,640,900 the rental received up to April, 2009 on the basis of fake certificates. In these circumstances, the appellants claim that they are not in a position to ascertain who is the real and true owner of disputed certificates and to whom the balance amount be paid and prayed as under:--- "In these circumstances it is respectfully prayed that the impugned judgment dated 21-5-2010 be set aside and the Trial Court be directed to adjudicate upon the rights of the parties to. The inter- pleader suit forthwith."
5. The respondents filed written statements and raised number of objections including:---
(a) The interpleader suit .Is barred under Order XXXV, Rule 5, C.P.C.
(b) The respondents Nos.2 to 5 have already filed suit before Sindh High Court about the transaction in dispute.
(c) The plaint is not signed and verified by a duly authorized person.
(d) The appellants know the real owner of the certificates, hence, interpleader suit is not maintainable.
(e) If any fraud has been committed that has been committed by the employees of appellants, hence, the suit is a mala fide attempt on the part of appellant to usurp the legitimate amount of respondents.
6. The learned trial court after hearing the parties vide impugned judgment and decree dated 21- 5-2010 rejected the plaint, hence, the present appeal.
7. Ms. Ayesha Hamid, Advocate learned counsel for the appellants submits that purpose of institution of an interpleader suit is to obtain a judgment declaring who is entitled for the payment or delivery of money or immoveable property and to provide indemnity to plaintiff. Learned counsel argues that, the person, who is adjudged to be entitled to the amount of certificates and rental, can receive the face value of the certificates and unpaid rentals without prejudice to his alleged right to claim the balance if any in a separate proceeding from the plaintiffs and recover the same if it is really due under law. Learned trial court has erred in law while holding that all necessary parties have not been impleaded party to the suit, the appellants have the relationship of seller and purchaser with the respondent No,1, the other respondents are not privy to any agreement with the appellants, hence the appellants have rightly impleaded rival claimants, the party to the suit.
The relationship of appellants and respondent No,1 is of trustee and beneficiary, there are no agency arrangements, ever agreed between the appellants and respondent No,1, the appellants have not obtained any indemnity from respondent No,1 of the face value of the certificates. The learned trial court has rejected the plaint after considering the material other than the contents of plaint which is not permissible in law, the learned trial court was bound to frame issues on factual controversies between the parties and to record the evidence; learned trial court has fallen in error while holding that the suit is not maintainable in terms of Order XXXV, Rule 5, C.P.C. Learned counsel has relied on Bolan Beverages (Pvt.) Limited v. PEPSICO. INC and 4 others (PLD 2004 Supreme Court 860), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247), Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta (PLD 2001 Supreme Court 325), N.M.N. Duraishwami Chettiar v. The Dindigul Urban Co-operative Bank Ltd. And another (AIR 1957 Madras 745), Bombay, Baroda and Central ' India Railway Company v. Jacob Elias Sassoon and others (ILR 1893 Bombay Series 231), Chhag'anlal Himatlat and others v. B.B. And C.I. Railway (AIR 1915 Bombay 28), The Secretary of State against Mir Muhammad Hussain and others (1 Madras HCR 360 (DB)) and Norse International Limited v. Group Five International Limited (Civil Cause 2309 of 1995 Malawi High Court).
8. Learned counsel for respondent No,1 submits that the suit has not been filed by authorized person, Mr. Anwar ul Haq is not authorized person to file the suit in terms of Order XXIX, Rule 1, C.P.C.; the employees of appellants have committed fraud, hence, the plaintiff being the principal of its employees are bound to honour their acts, the suit is barred under Order XXXV, Rule 5 of the Code of Civil Procedure; the transaction subject-matter of the suit is already the subject-matter of the suit filed by respondents Nos.2 to 5 hence learned trial court rightly rejected the plaint. Learned counsel vehemently argued that there is no ambiguity regarding the rightful owner of the Certificates, hence, the interpleader suit is not maintainable, the impugned judgment and decree is perfectly in accordance with law. He has relied on G. Hari Karmarker v. J.A. Robin and others (AIR 1927 Rangoon 91), Messrs Pakistan Oil Mills (Pvt.) Ltd. v. Messrs Peter Shipping Co. Ltd. And others (2005 MLD 1745), Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others (1994 CLC 2413), WAPDA and another v. Messrs Ghulam Rasool and Co. (Pvt.) Ltd. Through Managing Director (2005 MLD 1165), Messrs Farooq and Co. v. Federation of Pakistan and 3 others (1996 CLC 2030), Pakistan Paper Corporation Ltd. v. National Trading Company (N. T. C.) Ltd. (1983 CLC 1695) and Mariyala Sambayya v. Narala Bala Subba Reddi and another (AIR 1952 Madras 564).
9. Learned counsel for respondent No,2 submits that the suit has not been filed by duly authorized person; if the court after examining the contents of plaint prima facie considered that suit is barred by law or did not fulfil the requirement of law the court has the power to reject the plaint; the suit is hit by Order VII, Rule 11, C.P.C. As Messrs Swift Engineering Solutions has not made party to the suit; the relationship between the appellants and subsequent purchaser from respondent No,1 is of principal and agent, hence the suit is not maintainable. The argument of learned counsel for respondents is that under Order XXXV, Rule 1(a), in every interpleader suit, the plaint shall, in addition to the other facts should find mentioned that the plaintiff/appellants did not know the real owner of disputed property hence the present suit is a device to avoid payment to the two claimant who came in to existence due to the fraudulent acts of the employees of appellants and that appellants are liable to the acts of their employees. The suit thus is not maintainable as an interpleader suit. Learned counsel has relied on Messrs Standard Hotels (Private) Ltd. v. Messrs Rio Centre and others . (1994 CLC 2413), Abdul Rahim and 2 others v. Messrs United Bank Ltd. Of Pakistan (PLD 1997 Karachi 62), Dr. S.M. Rab v. National Refinery Ltd. (PLD 2005 Karachi 478), Citi Bank N.A., A Banking Company through Attorney v. Riaz Ahmed (2000 CLC 847), Patorni v Campbell (1843) EngR 11721, Farr v. Ward 1(1837) EngR 96), Sabiichich v. Russell (1866 Equity Cases 441), Crawford v. Fisher 1(1842) EngR 410) Ann Dalton v. The Midland Railway Company 1(1852) EngR 721), Farmers Irrigating Ditch Reservoir Company v. Kane (845 F2d 229), Great American Insurance Co. v.
Bank of Bellevue (366 F.2d 289), Eastern Holding Establishment v. Singer and Friedlander Ltd. ((1967)
2 All. ER 1192), Sambavva v. Subba Reddi (AIR 1952 Madras 564), Tucker v. Morris ((1832) EngR 307).
Bolan Beverages (pvt.) Limited v. PEPSICO. INC and 4 others (PLD 2004 Supreme Court 860), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247), Hashim Khan v. National Bank of Pakistan, Head Office at 1.1. Cundrigar Road, Karachi and Branch Office at M.A. Finnan Road, Quetta (PLD 2001 Supreme Court 325), N.M.N. Duraishwami Chettiar v.
The Dindigul Urban Co-operative Bank Ltd., and another (AIR 1957 Madras 745) and Chhaganlal Himatlal and others v. B.B. And C.1 Railway (AIR 1915 Bombay 28).
10. We have heard the learned counsel for the parties and examined the record.
11. For better appreciation of section 88 and Order XXXV of the Code of Civil Procedure both are reproduced as under;--- "Section 88. Where two or more persons claim adversely to one another the same debt, sum of money or other property, moveable or immoveable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: ' Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted."
"Order XXXV, Rule 1. In every suit of interpleader the plaint shall, in addition to other statements necessary for plaints, state---
(a) , that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.
' Rule 2. Where the thing claimed is capable of being paid into Court, or placed in the custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.
' Rule 3. Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but, if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader suit.
' Rule 4(1). At the first hearing the Court may
(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or
(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.
(3) Where the admissions of the parties do not enable the Court so to adjudicate it may direct---
(a) that an issue or issues between the parties be framed and tried, and
(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.
' Rule S. Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlord, for the purpose of compelling them to interplead With any persons other than persons making claim through such principals or landlords."
12. Perusal of Section 88 of the Civil Procedure Code shows that it provides the institution of an interpleader suit for the purpose of obtaining a decision from the court as to the person to whom the payment or delivery shall be made and from whom obtain indemnity for himself, therefore, the main issue to be decided by the Court in an interpleader suit with respect to a debt, sum of money or other property, moveable or immoveable is to whom the payment or delivery shall be made. In the present case, there are rival claimants to the amount payable under the certificates. The appellants are not denying its liability payable under the certificates along with rental due less the rental paid to respondents Nos.3 and 4 on 72 certificates but they are unable to ascertain who is the real owner of the certificates, this means that appellant is not disputing the payment of face value of the certificates along with unpaid rental, the dispute only is about the certificates amounting to Rs,180,000,000 and portion of paid rental of the certificates, the appellants are admitting their liability under the certificates, the respondent No,1 is claiming that they have not issued any letter nor surrendered their 72 certificates valuing Rs,180,000,000 for transfer to Messrs Swift Engineering Solutions, whereas the appellant's claim is that they have transferred these Certificates with bona fide intention believing that it is a genuine letter, and when they received complaint from respondent No,1, they immediately requested respondent No,5 to stop any sale and purchase of the disputed Certificates, but the respondent No,5 continued to allow sale and purchase of the Certificates, further the appellants are not in a position to ascertain who is the rightful owners, of the disputed property.
14.(sic) The issue about the maintainability of interpleader suit came up for consideration in Inuganti Sobhanadrirao and another v. Muthangi Jaggayya and others {AIR 1966 Andhra Pradesh 92 (V 53 C 31)). The relevant portion of the judgment reads as under:- "Section 88, C.P.C. Also indicates that an interpleader's suit may be instituted "for the purpose obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself." No doubt, the section requires that the plaintiff must be ready to pay or delyer the debt, sum of money or other property, move able or immovable, to the rightful claimant. But this can only mean that the plaintiff must be ready to pay, in the case of a debt, the amount, which he admits to be due and payable. The language of the section does not indicate that the plaintiff in an interpleader suit, shall admit in its entirety the claim against him. To the extent the plaintiff admits his liability, he may ask that the rival claimants interplead."
15. The second argument of learned counsel for respondents is that under Order XXXV, Rule 1(a), in every interpleader suit, the plaint shall, in addition to the other facts should assert that the plaintiff/ appellants know the real owner of disputed certificates, an order cannot be passed in the case, where the amount due is in dispute, and therefore, an interpleader suit is not maintainable, the instant suit is a device to avoid payment to the two claimants who came in to existence due to the fraudulent acts of the employees of appellants.
16. Now it has to be seen what the appellants are claiming through the suit, it is an admitted fact that appellants are admitting the payment of certificate registered in the name of respondent No,1 this means that appellants are not claiming any interest in the subject-matter in dispute merely that out of certificates of Rs,750,000,000 only certificates of Rs,180,000,000 are in dispute.
17. The language of above said provision of law shows that the word used in it is "may" which signifies it is only in a case where the amount is not in dispute and where the plaintiffs/appellants pays into Court the entire amount that the Court may declare that the plaintiff/appellant is discharged from all liability; but where the amount is in dispute the Court may declare that the plaintiff is discharged from liability only to the extent of the amount admitted (Rs,180,000,000 in the present case) and leave the parties to settle their disputes for the balance otherwise or in other proceedings.
18. No doubt, where the plaintiff/appellant colludes with one of the claimants 01 has taken indemnity from one of the claimants or has entered into an agreement with one of them to receive less than what is B actually payable, an interpleader suit has to be dismissed, but in the present case the appellants/plaintiffs have taken indemnity from one claimant to the extent of rental allegedly wrongly paid on the subsequent issued certificates, the court while deciding the suit finally can declare that parties may get settled their unpaid and disputed claim through regular suit.
19. In the present case no doubt the appellants/plaintiffs have admitted that the letter dated 12-2- 2009 form Deputy General Manager (Accounts) of respondent No,1 seems to be fake but the appellant has also pleaded that respondent No,1 surrendered 72 certificates which were fake and the appellants have issued 6 share certificates valuing Rs,180,000,000 to respondent No,2, in lieu of these 72 Certificates, if it is true then obviously all transactions based on 72 Certificates are illegal.
The respondent No,1 's claim is that they are entitled to the payment of entire rental and face value of the disputed certificates, but surprisingly respondent No,1 has not presented its certificates for encashment, the subsequent transferee of the 72 certificates valuing Rs,180,000,000 have received a portion of the rental and have not raised any demand so far for payment of face value and the due rental of the disputed certificates. It is an admitted fact that till today no court of competent jurisdiction has declared that transfer of 72-Certificates valuing Rs,180,000,000 in favour of Swift Engineering Solutions were on the basis of genuine certificates and the present holders of the disputed certificates have purchased the genuine certificates, hence till the declaration of genuineness of the disputed certificates by the competent court of jurisdiction both the parties i,e,, respondent No,1 and respondents Nos.3 and 4 will enjoy the status of adversaries of each other, further it is also yet to be opined by the competent court of law about the role of respondent 5 as the said respondent refused to stop the sale and purchase of the disputed certificates on the request of appellants/plaintiff even on coming to know that fraud has been alleged by the appellants qua the Certificates in the name of respondent No,2.
20. In the above circumstances we have no hesitation to say that learned trial court has failed to appreciate the true facts and law of the case. We, therefore, set aside the impugned judgment and decree and hold that the suit is maintainable and that the learned trial Court erred in rejecting the plaint.