The National Bauk of Pakistan brought a suit against "M/s. Cominco Corporation, Bhim Street, Nila Gumbad, Lahore through Mr. Nayyar Manzoor Managing Partner, 48-A, Statellite Town, Gujranwala", for recovery of Rs. 7,54,403.74 under the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979). Their case was that the defendant had got an irrevocable Letter of Credit issued in the amount of U. S. Dollar 45,500 equivalent to Rs. 4,82,575 bearing No. GRW 3/932 dated 9th May, 1976, that he had also signed an agreement dated 3rd August, 1976 for clearance of consignment and that he had deposited Rs. 72,450 on 10th September, 1970, being the margin deposit at the:,: rate of 15%. According to the Bank, the defendant had, in spite of repeated demands, failed to pay the accrued amount and had misappro--priated the goods. In response to the summons, petitioner Nayyar Manzoor submitted an application under Order XXXVIII, rule 3, C.P.C. Praying that he "may kindly be allowed leave to appear and defend the suit" (Annexure `C' dated 16th February, 1981). By a subsequent application, dated 22nd April, 1981, he, however, prayed that "the question whether the petitioner had ever remained a partner of the Cominco Corporation (Defendant in the suit) and whether the said firm could be served through the petitioner may kindly be decided before any further proceedings are taken in the matter and the petitioner be dis--charged of the notice." The Special Judge, Banking, however, by his order dated 26th April, 1981, rejected the contention and allowed the petitioner leave to defend the suit subject to the deposit of the entire suit amount within a period of two months or by furnishing bank guarantee in respect of that amount. On the same day, he, however, ordered that "The various applications submitted on behalf of Nayyar Manzur will be taken up if he fulfils -the condition of the deposit of amount.
2. The contentions raised by learned counsel for the petitioner are that (i) although the petitioner had appeared under protest under Order XXX, rule 8, no service has been effected on the defendant Corporation itself, (ii) Mayyar Manzoor had appeared in his individual capacity in order to object to his liability in the snit and not on behalf of the Company and as such the question of granting him leave to defend the suit did not arise, (i.e) such leave could be granted only to the Firm who were the proper defendants in the suit, (iv) Nayyar Manzoor was only an attorney of the Company and as such it was wrong on the part of the Special Court to hold that he was the Manag--ing Partner of the Company, and (v) under Order XXXVI, rule 3, it is only the defendant that can be subjected to a condition to the grant of leave to defend the suit.
3. It would have been easier for this Court to form an opinion about the legality of the orders dated 25th April, 1981, of the Special Court if the position of Nayyar Manzoor, petitioner, would have been clearly shown viz-a-viz the Firm, Cominco Corporation. The documents shown to the Court by the Bank disclose that he had been signing for the Corporation without showing the nature of his relationship with the Corporation. According to the Bank, he has nowhere signed himself on the relevant documents as attorney of the Corporation. The "Application and Agreement for irrevocable Letter of Credit" apparently bears his signature. So is the Agreement dated 3-8-1976. In the latter, he had signed "For Cominco Corporation". In a suit brought by M/s. Cominco Corporation (Annexure 'G'), the plaintiff had been cited as "M/s. Cominco Corporation, Bhim Street, Nila Gumbad, Lahore through Mr. Nayyar Manzoor, Managing Partner". The suit had, however been withdrawn by application dated 29-1-1978 for the reason inter alia, "That the suit has not been properly instituted as Mr. Nayyar Manzoor is not the Managing Partner of the plaintiff firm". In a letter addressed to the Manager, National Bank of Pakistan dated 19th March, 1977 even the printed address of the Corporation had been obliterated and is its place the following address had been given.
"C/o Nayyar Manzoor, 48-A, Satellite Town, Gujranwala."
It is pointed out by the Bank that an amount of Its. 74,647.50 had been drawn by Nayyar Manzoor by Cheque No. E/22/6011/8, dated 31-5-1976 on his personal Account No. A/C 1440 and the amount had been utilized towards the payment of the marginal deposit against the aforementioned Letter of Credit.
4. In these circumstances, the question of the petitioner's liability requires to be decided after framing a proper issue. It is for the trial Court to frame and determine such issue. No finding can be recorded on the points raised, in a collateral proceeding like the present one.
5. In the circumstances I decline to interfere. The petition is dismissed in limine.