NADEEM AKHTAR, J.---Through this appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (`the Ordinance'), the appellant has impugned the judgment and decree dated 24.08.2015 passed by the learned Banking Court-II at Sukkur in Suit No 157 of 2012, whereby the said Suit filed by the appellant was dismissed on the grounds that the plaint thereof was not verified and filed by the authorized person and compliance of subsections (2) and (3) of section 9 of the Ordinance was not made.
2. It is contended by the learned counsel for the appellant that the impugned judgment and decree are not sustainable as the Suit had been filed by the person authorized by the appellant- bank in terms of it's Circular No, HRD/27/2011 dated 29.08.2011 (`the circular') which reads as under: "Circular No, HRD/27/2011 dated 29.08.2011 All Zonal Chiefs/Managers, Zarai Taraqiati Bank Limited.
Subject: CONDUCT AND DEFENCE OF LEGAL PROCEEDINGS President ZTBL, in exercise of the powers conferred upon him by the Board of Directors do hereby authorizes Senior Executive Vice President, Executive Vice President, Senior Vice Presidents, Acting Senior Vice Presidents, Vice Presidents of Law Division and Incharges Legal/Litigation Units in the field with immediate effect to the following extent.
To commence, plead, prosecute, continue and defend all actions suits or legal proceedings whether civil, criminal or revenue to compromise or refer to arbitration any claims or disputes either in such suits or proceedings or otherwise, to appoint Solicitors, Advocates, Pleaders, Vakils and other legal agents; to make, sign, verify, execute, plaints, pleadings, petitions, written statements, tabular statements, vakalatnamas, or any other papers expedient or necessary to be made, signed, executed, verified, presented or filed, in any judicial or quasi judicial forum, including but not limited to the Supreme Court, High Courts, Banking Courts, tribunals, Civil/Criminal/Revenue courts whether 'trial or appellate, Registrar of Companies, SECP and SBP.
Sd/- (Anwar-ul-Haq) SVP (P&R) "
3. A bare perusal of the circular shows that senior personnel of the appellant such as Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Acting Senior Vice Presidents, Vice Presidents of Law Division and Incharges of Legal/Litigation Units were authorized by the President of the appellant to do the acts detailed in the circular in relation to legal proceedings by or against the appellant. Record shows that plaint of the Suit filed by the appellant was verified by one Dhani Bux son of Muhammad Bux who had not disclosed his designation anywhere in the plaint or in the verification thereof. It was only stated in the title that Suit was filed by the appellant through its "duly constituted attorney", after the prayer clause and before the verification only "attorney of the plaintiff-bank" was mentioned under the signature of the person who had signed the plaint, and in the verification only "Dhani Bux son of Muhammad Bux" was mentioned. Admittedly, no other document such as a board resolution, power of attorney and/or authorization was filed by the appellant in favour of the said Dhani Bux authorizing him to institute and prosecute the Suit on behalf of the appellant-bank. From the above, it is clear that there was nothing on record before the learned Banking Court to substantiate that Dhani Bux, purported attorney of the appellant, was holding any of the above posts (described in the Circular) in the appellant-bank at the time of institution of the Suit. On our query, learned counsel for the appellant conceded that there was/is nothing on record to ascertain the designation of the said Dhani Bux or whether he was an employee of the appellant or not.
4. Section 9(1) of the Ordinance specifically provides that Suit under section 9 of the Ordinance will be instituted by presenting a plaint which shall be verified on oath in case of financial institutions by the branch manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise., Moreover, Rule 1 of Order XXIX, C.P.C. specifically deals with the signing and verification of pleadings in Suits by or against corporations. Under this Rule, pleadings in. Suits by or against a corporation are required to be signed and verified on its behalf by its secretary or by any director or other principal officer who is able to depose to the facts of the case. It may be noted that a corporation, being a juristic entity, can take decisions or act only through its Board of Directors, and an authority or authorization by or on behalf of a corporation is deemed to be valid and legal only when it has the sanction or approval by its Board of Directors. It is well-settled that in the absence of proper board resolution, power of attorney or authorization by a company/corporation specifically authorizing the person named therein, Suits and legal proceedings by such company or corporation cannot be deemed to have been properly instituted.
If any authority is needed on this point, reference may be made to the leading case of Khan lftikhar Hussain Khan of Mambot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore, PLD 1971 SC 550. In the instant case, the appellant, being a financial institution/company, was required to authorize its branch manager, secretary, any director or other principal officer in terms of section 9 ibid or Order XXIX, Rule 1 ibid to sign and verify the plaint and to institute the Suit on its behalf. However, this A mandatory legal requirement was admittedly not fulfilled.
5. It may be noted that there is nothing on record in the instant appeal as well to substantiate that the person who has signed and filed the appeal was authorized by the appellant to do so. Thus not only the Suit, but the present appeal also was filed without proper authorization from the appellant.
The appellant not only failed to file/produce an authorization or power of attorney at the time of filing of the Suit and this appeal, but also failed to show us any document to this effect from the entire record of the Suit and this appeal.
6. Learned counsel for the appellant has placed reliance upon Messrs Termizi Oil Industries (Pvt.)
Ltd. through Director and 3 others v. Industrial Development Bank of Pakistan through Senior Vice President 2007 CLD 1509 (Supreme Court) in support of his submissions. In the cited case, Suit filed by Industrial Development Bank of Pakistan (IDBP) before the Banking Court was decreed and the decree was maintained in appeal by the learned Lahore High Court. It was urged before the Hon'ble Supreme Court that Mr. Zafar Hameed, Senior Vice President, Regional Office Lahore, was not authorized to file the Suit in the name and on behalf of IDBP. This ground was rejected by the Hon'ble Supreme Court and leave was refused by holding that authorization in favour of the above named officer was covered by Notification dated 13.09.1974 issued by IDBP whereby its Board of Directors had authorized the officer of the rank of Senior Vice President to institute the Suit. We are afraid the above case does not support the present appellant as in the cited case IDBP had specifically authorized its Senior Vice President to institute the Suit, and the person who had verified the plaint and instituted the Suit had disclosed his specific designation as Senior Vice President.
Whereas, in the present case except for the name of the alleged attorney, other details, particularly his designation, were admittedly not disclosed. Therefore, the case cited by the learned counsel for the appellant is clearly distinguishable.
7. It may be observed that only such defects can be cured by the appellate Court, or by the trial Court in some cases, 'which are not fatal to the proceedings. The defect in the present case, at the stage of filing the Suit as well as at the time of filing the present appeal, was a fatal one in view of the law laid down by the Hon'ble Full Bench of the Supreme Court in the case of Khan lftikhar Hussain Khan of Mambot (supra). After giving due consideration to all the aspects of the case, we agree with the findings of the learned Banking Court which do not require any interference by this Court.
8. In view of the above discussion, this appeal is dismissed with no other as to costs.