' MAHMOOD A. KHAN, J.---This is an application under Order VII, Rule 11, C.P.C. For rejection of the plaint by the defendants Nos.1 and 2 on the ground of estoppel and bar under section 18 of Federal Ombudsman Institutional Reforms Act 2013, to which the plaintiff has preferred not to file any objection/s and or counter affidavit.
2. The plaint in the matter is filed by the plaintiff MCB Limited against the defendants Nos.1 to 8 wherein the defendant No,1 Sajida Naqi Riaz is the instructor of the instruments/pay orders in question and an account holder of defendant No,7, defendant No,2 Adnana Naqi Riaz is son of the defendant No,1 said to have been working with defendant No,7, defendant No,3 Shariq Hussain is said to a past holder of the pay-orders in question, whereas the defendants Nos.4, 5 and 6 Amir Habib Khan, Naeem Khan and Muhammad Farrukh respectively are the account holders of the plaintiff. Defendant No,7 is Standard Chartered Bank the maker of the pay orders, defendant No,8 is Banking Mohtabi Pakistan having adjudicated the matter and its appellate authority the defendant No,9 being State Bank of Pakistan.
3. It is contended by the plaintiff in abbreviation to the relevant/required details is that, being a bank amounts against three (3) pay orders issued by defendant No,7 having the account numbers of the beneficiaries along with the words "Car Bid" were disbursed to the account of defendants being Nos.4 to 6. The defendant No,1 against the said payment initiated proceedings inter alia with the defendant No,8 on the ground that disbursement of the amounts was in violation of the description of the title/beneficiary of the said pay orders wherein after hearing order dated 04.04.2012 was passed for return of the said amount. Appeal preferred by the plaintiff to Defendant No,9 also failed by order dated 24.10.2012. It is further contended by the Plaintiff that pay orders are normally prepared in the name of the beneficiary followed by his account number if available and in either case the number comes after the account number and not as a title of account and in the subject pay orders "Car Bid" was mentioned as a notation after the account number and not as a title of account, the plaintiff is not having any account with the name of "Car Bid" nor the plaintiff advertised or asked for such a bid. The pay orders in question reflected the branch code and the account numbers and carried the notations added with the same with the connivance of defendants Nos.2 and 3 as such the plaintiff deposited the pay orders in the account numbers reflected on the pay orders in good faith. The subject pay orders and the plaintiff is protection under section 131 of the Negotiable Instruments Act, 1881. That the defendants Nos.1 and 2 are not account holders of the plaintiff as such no private of contract is present with them as such no obligation was/is available to them, the amount was rightly disbursed to the holder of the instrument, the plaintiff being in subservience to the defendants Nos.8 and 9 is compelled by use of force on the behest of defendants Nos.1 and 2 without due process of law illegally. That the plaintiff had correctly credited the said pay order to the respective account numbers as given in the pay orders in good faith and without any negligence as "payment in due course" provided under section 10 of the Negotiable Instruments Act, 1881. As plaintiff claimed statutory protection provided under section 131(B) of the said Act. That the complainant had been actually made by Defendant No,2 concealing that he is banker and that he was not authorized by defendant No,l. The plaintiff as such has suffered losses in its reputation and business estimates to the tune of Rs,100,000,000/-.
The prayers made in the suit are as under; a. Declaration that the Pay Orders presented by the defendants Nos.4, 5 and 6 have been corrected deposited by the plaintiff in the respective accounts. b. Declaration that the defendants Nos.1, 2, 3, and 7 have themselves acted in a collusive and fraudulent mala fide manner, and are therefore not entitled to claim any refund from the plaintiff. c. Declaration that the plaintiff has no private of contract or obligation towards the defendants Nos.1, 2, 3 and 7. d. Declaration that the orders dated 04.04.2012 passed by the defendants No,8 and orders dated 24.10.2012 passed by the defendant No,9 are not sustainable in law and facts, having been passed without due process of law, without recording and appreciating evidence and being based upon conjectures and surmises. e. Decree the suit against the defendants jointly and severally, for the sum of Rs,100,000,000/- (Rupees one hundred million) as compensation and damages on account of losses suffered by the plaintiff due to the illegal acts of the defendants. f. Restrain the defendants from directly or indirectly claiming any amount from the plaintiff. g. Grant costs of the suit. h. Grant any other relief as deemed appropriate.
' 3(sic.) Learned counsel for the defendants Nos.1 and 2 in support of his application relied upon the provisions of section 18 of Federal Ombudsman Institutional Reforms Act, 2013 and further contended that the plaintiff has participated in the proceedings with the special forum and thereafter had accepted the same by directing its concerned employees to pay up the amount caused on account of their negligence through letters annexed as annexures All to A/6 to the said application. The said employees filed C.P. No,182 of 2013, wherein initially status quo was ordered the same was later withdrawn and eventually the petition was dismissed, the plaint as such is barred under the doctrine of estoppel and Article 114 of Qanun-e-Shahadat, 1984. In support of his contention the learned counsel has relied upon the following laws:- i. 2010 SCMR 1630 (Sultan Muhammad and another v. Muhammad Qasim and others). ii. 2002 SCMR 338 (S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal heirs). iii. 2007 PTD 878 (Messrs Rohi Ghee Industries (Pvt.) Ltd and others v. Collector of Customs and others). iv. 2013 SCMR 1687 (Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others). v PLD 1994 Karachi 194 (Karachi Catholic Cooperative Housing Society Ltd v. Mirza Jawad Baig). vi. 2004 965 (Muhammad Asif and another v. Hall Fazal Ahmed and 2 others).
4. Learned counsel for the plaintiff on the other hand argued for the dismissal of the said application on 16.09.2016 and thereafter, requested for time as such the matter was kept aside and taken up in late hours, where the learned counsel further proceed his arguments relying upon section 82-E of the Banking Companies Ordinance 1962. It is contended by the learned counsel that opportunity of cross-examination was not provided by the defendant No,8 to the plaintiff and in the circumstances the civil court will not lose its jurisdiction to entertain the matter. As the learned counsel during proceedings required further time on the ground that some papers/authorities are not available in his file, the matter was kept for 17.09.2016. The learned counsel was however put to notice as to defendants Nos.1, 2, 7 to 9 being a party to the plaint, and it was observed that it was open for bank to proceed against the beneficiary to whom the amount was disbursed. On 17.09.2016 Mr. Zaheer-ud-Din Minhas advocate appeared and holding brief for learned counsel for plaintiff requested that Mr. Ghulam Rasool advocate for plaintiff had an emergency and has left the city whereas the other counsel is also out of city. Mr. Zaheer-ud-Din Minhas having the case file with him and holding brief was called upon to proceed with the case to which he has stated that he has no instructions to proceed with the case however he requested for submission of the authorities and as such has relied upon the following cases laws; i. 1992 MLD 465 [Karachi] (Journalist Publication (Pvt.) Ltd., Karachi v. Federation of Pakistan through Secretary, Ministry of Labour and Manpower, Islamabad and 3 others). ii. 1996 CLC 1382 [Lahore] (Hakim Hafiz Muhammad Ghaus v. Province of Punjab), iii. 2006 CLD 1226 [Lahore] (United Bank Limited through Manager v. Banking Mohtasib Pakistan and another). iv. PLD 1997 Supreme Court 3 (Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others). v. 1995 MLD 45 [Lahore] (Shahab-ud-Din and others v. Mariam Bibi). vi. PLD 2003 Karachi 405 (Amber Ahmed Khan v. Pakistan International Airlines Corporation, Karachi Airport, Karachi). v. BLD 1992 Karachi 65 (International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority through Secretary, Bin Qasim Authority). vii. PLD 2016 Sindh 26 (Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others). viii 2006 CLD 191 [Karachi] (Messrs Sakhi Dattar Cotton Industries and Oil Mills through Authorized Partner v. Messrs Mahmood Pvt. Ltd and 4 others). ix. 1994 CLC 247 [Karachi] (Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others). x. 1992 CLC 1025 [Karachi] (Babau Rahim Bux v. Wali Mohammad) 1990 CLC 1132 [Karachi] (Mst.Khursheed Jehan v. Syed Aziz Ahmed Naqvi and 2 others). xi. 1988 CLC 1207 [Karachi] (Abdul Rahim v. Karachi Development Authority). xii. 2001 YLR 2754 [Lahore] (Province of Punjab through Secretary Excise and Taxation, Punjab, Lahore and others v. Muhammad Ishaq). xiii 2008 YLR 109 [Lahore] Ahmed All v. Manzoor Hussain and 8 others) xiv. 2007 CLC 872 [Lahore] (Syed Ikhlaque Hussain Shah v. Sh. Muhammad Bashir and others) xv. PLD 1965 Supreme Court 698 Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi).
' The learned counsel for the plaintiff thereafter preferred no request of being heard further.
5. Learned counsel and defendants Nos.7 and 8 supported the application of defendants Nos.1 and 2.
6. Having heard the learned counsel and gone through the record wherein the plaint filed by the plaintiff is based upon the alleged grievance in respect of the order of return of the amounts passed by the defendant No,8 and upheld by defendant No,9. The plaintiff in paragraph No,29 of the plaint states as follows; That section 82-A to H of the Banking Companies Ordinance, 1962 provide for the establishment of the office of the defendant No,8. Section 82-E(4) provides for an appeal to the defendant No,9 against the orders of the defendant No,8. However, section 82-E(7) of the Ordinance clearly states that "nothing contained herein shall prevent a Complainant from filing a suit against a Bank in the event his Compliant is rejected". Thus, on the same analogy, this suit is being filed by the Bank against the Complainant and others".
8(sic.) It is liable to be considered that the special law only provides the complainant an opportunity to approach the civil court but not the Bank. As such a similar analogy in such simplicity cannot be drawn. A matter decided by a special forum cannot be allowed to re-agitated before a civil court except by the available exception or for want of jurisdiction by the special forum and/or mala fides which are not only required to be A merely alleged the same are to be referred also in the plaint, failing which the same cannot even be brought up in the evidence before a civil court. In the present matter although evidence stage has not been reached however in absence to any reference to any alleged mala fide and collusion or connivance in the plaint any allowance to the mere allegation being treated sufficient is bound to treat the whole purpose of creation of special forum redundant.
9. The defendants Nos.1 and 2 has relied upon the provisions of Order VII, rule 11, C.P.C., praying for dismissal of the plaint, the relevant being (a) and (d) for the present matter being:
(a) where it does not disclose a cause of action;
(d) where the suit appears from the statement in the plaint to be barred by any law.
10. In my humble understanding the plaint as is present the principles of estoppel cannot be applied at this stage to the letters relied upon in the application require being confronted to the plaintiff, irrespective to the fact that the plaintiff has not preferred to file any counter affidavit as an application under Order VII, rule 11 is based upon law and not facts requiring admission and/or denial. However it bears from the record that the dispute between the plaintiff and the defendants No,1 along with her concerns the defendants Nos.2 and 7 stands decided in accordance with and by a special forum created by law i,e, the defendants Nos.8 and 9. The exercise being legal and protected by law also do not warrant any claim of damages against them. The plaintiff not being able to show the required exception as such has no cause of action in law as far as the said Defendants Nos.1, 2 and 7 to 9 are concerned, they cannot be a party to these proceedings. The plaintiff at best can only make out a case of recovery/damages against the Defendants 3 to 6. On merits also it is observed that the decision of the defendant No,8 is based upon documents (title of the pay orders and failure of observing required banking practices by the plaintiff not requiring any factual controversy), no request for leading any evidence and/or cross-examination seems to have been made during the proceedings, the reasons including for the denial of protection being available in law are present and prima face no right of any party is violated, the other exceptions taken by the plaintiff to the impugned order being untenable as the same are trivial and do not affect the substance of decision. The relied upon cases are found relevant to the extent discussed.
11. It is to be observed that the plaintiff being a bank is/was a trustee (though neglectful, but still a trustee) and as such under the order of the defendant No,7 calling upon for the payment to be made and on having departed with the payment, the plaintiff has a right to recover the said amount against the account holders as the same was wrongly made.
12. In the circumstances based upon the above given discussion the defendants Nos.1, 2, 7, 8 and 9 are deleted from the array of the defendants under Order I, rule 10, C. P. C .
12. In the matter where the plaintiff has already deposited the subject amount of Rs,13,95,000/- discussed in the order dated 16.06.2016, to which the defendant No,1 has already been decided to be a beneficiary and it has been determined that the said defendant cannot be party to these proceedings let the said amount be released to the defendant No,1 along with any available profit thereon, after the lapse of the appeal period in accordance with rules. The application stands decided in the above terms.