1. ' This is an application filed by the plaintiffs praying that as the Union Bank has merged with the Dubai Bank of Middle East Limited, the latter being the successors of the plaintiffs have taken over its assets and liabilities, they should be substituted as plaintiffs in place of Dubai Bank. Mr. Mansoorul Arfin the learned counsel for the defendant has raised objection on several grounds. The first objection is that the application has been filed under Order VI, rule 17 which is not applicable.
2. Admittedly a wrong provision has been quoted but merely A on this technical default the application cannot be dismissed. The Court should look to the substance of the application and decide according to the proper law applicable to the case.
3. ' According to the learned counsel for the defendant as Order XXII, rule 10, C.P.C. Is the proper law applicable to the application, the applicants have to show that they have succeeded to the rights and liabilities of Dubai Bank Limited and are entitled to be joined as its successor. Mr. Sajid Zahid the learned counsel for the plaintiffs has pointed out that the merger was carried out under the order of the Dubai State Government and State. Bank of Pakistan has also sanctioned it. Therefore, there can no legal lacuna in the merger. Mr. Arfin the learned counsel for the defendant has contended that the question of merger is a question of fact and unless evidence is led it cannot be proved that the applicants have merged and secondly as the merger has been made under a foreign law it should be proved as a fact. It was also contended that even if the assets and liabilities have been taken over the rights in respect of movable and immovable property will not transfer to the applicants automatically by virtue of the merger unless such rights are transferred by a registered document. The learned counsel has also referred to section 48 of the Banking Companies Ordinance and contended that it is not applicable to the present case. According to him the procedure provided by section 287 of the Companies Ordinance, 1984 should have been followed.
4. ' So far the amalgamation is concerned the learned counsel for the applicant has referred to section 48 of the Banking Companies Ordinance which lays down procedure for amalgamation of Banking Companies. Similar question arose in H.C.A. No, 36 of 86 where the order granting application for substituting applicant's name in place of Dubai Bank was challenged. While referring to section 48 of the Banking Companies Ordinance it was observed: ' A perusal of section 48 of the Banking Companies Ordinance, 1962, shows that the provisions thereof override the provisions of any other law which, in our opinion, would include Companies Ordinance, 1984, being special provisions concerning the Banking Companies. If there could be any doubt the same is removed by the provisions of section 503(1), clause (b) of the Companies Ordinance, 1984 which makes the provisions thereof applicable to the Banking Companies only, if the same are not inconsistent with the provisions of the Banking Companies Ordinance, 1962.
5. Accordingly the provisions of section 98 being inconsistent with the provisions of section 287 of the Companies Ordinance, 1984 so far as Banking Companies are concerned, would prevail. Therefore, the merger of Dubai Bank Limited into the Union Bank of Middle East Limited was to be done only in accordance with the Provisions of section 48 of the Banking Companies Ordinance, 1962, and it is not disputed that the merger did take place in accordance therewith. Thus the Union Bank o Middle East Limited acquired all the rights of Dubai Bank Limited.
6. ' In view of these observations the contentions of the learned counsel for the plaintiff have no force.
7. As the merger has been done in accordance with section 48 0 the Banking Companies Ordinance which over-ride other provisions of law, the rights and liabilities of Dubai Bank stand transferred to the new bank and question of registration of any document for the transfer of right does not arise.
8. State Bank of Pakistan by -its Notification,, dated 6-1-1986 has recognized the merger and on that basis Dubai" Bank Limited has been descheduled. In view of this Notification the other contentions regarding applicability of foreign law and its proof do not arise. The other aspect of the case is that so far the defendants have not been granted leave to appear and defend the suit. Therefore, in my view they are not entitled to raise these objections at this stage. The application is allowed.
9. Amended plaint to be filed within two weeks.