' NASIR ASLAM ZAHID, J.---Respondent No,1, Prince Glass Works Limited (plaintiff) has filed Suit No,339 of 1986 against National Beverages (Pvt.) Ltd. (defendant No,1 and appellant in this appeal) and United Bank Limited (defendant No,2 in the Suit and respondent No,2 in this appeal) for the recovery of Rs,22,83,109.69. According to the plaintiff, it placed two orders in February, 1983 for supply of empty "Coca-Cola" and "Fanta" bottles against irrevocable without recourse revolving Letter-of-Credit and, pursuant to the said orders, the defendant No,1 through defendant No,2 Bank opened the required Letter-of-Credit. According to the plaintiff, it commenced deliveries in March, 1983, and presented the first set of L/C documents to defendant No,2 Bank on 19-3-1983 which documents were accepted by the Bank without any objection. According to the plaintiff, it continued making deliveries to defendant No,1 upto May, 1983, and when payment became due on the expiry of 45 days, the plaintiff was informed by its bankers that defendant No,2 Bank had failed to make payment and returned the documents on the ground that they were not acceptable to defendant No,1. According to the plaint, defendant No,2 Bank similarly dishonored subsequent documents presented under the L/C. For goods which had also been supplied to defendant No,1 by the plaintiff. According to the plaintiff, defendant No,1 was liable to the plaintiff for breach of contract of sale and defendant No,2 Bank for breach of terms of L.C. According to the plaintiff, the two defendants are jointly and severally liable to the plaintiff in the sum of Rs,12,79,575 being the price of goods sold and delivered plus interest/mark-up amounting to Rs,6,40,995.69 and that the return of the documents by the defendant No,2 Bank after 52 days' delay of their presentation was invalid. According to the plaintiff, the defendant No,2 Bank in conspiracy with defendant No,1 induced the plaintiff into continuing supplies to the defendant No,1 upto the middle of May, 1983, and, therefore, the Bank was jointly and severally liable with defendant No,1 for all the supplies. The plaintiff claimed a further amount of Rs,3,62,539 on account of loss of sale and of godown charges.
The total claim in the suit is Rs,22,83,109.69. It may be observed here that the defendant No,1 (the appellant) has filed a counter-claim in the suit for Rs,1,38,96,940 against the plaintiff.
2. Prior to the filing of the suit, the plaintiff had lodged a complaint against the defendant No,2 Bank before the Wafaqi Mohtasib which was pending when the suit was filed in this Court. During the pendency of this suit, an application was moved against the plaintiff praying that they should be restrained from proceeding with their claim before the Wafaqi Mohtasib. This application was dismissed by order dated 18-11-1986 of the learned Single Judge (reported in PLD 1987 Kar: 49).
' The Wafaqi Mohtasib by order dated 26-9-1987 passed an order on the said complaint of defendant No,1 deciding as follows:- "I, therefore, hold that the Bank is liable to make good the amount of Rs,12,79,575. Since it is clearly an act of maladministration on the part of the Bank, I recommended the Bank not only to make payment of the above amount to the complainants but also pay them an amount equivalent to the interest/mark-up on Bank's fixed deposit for the period the amount remained unpaid."
' It was further directed by the Acting Wafaqi Mohtasib that compliance of the recommendation should be reported by 31-10-1987.
' Defendant No,2 United Bank Limited filed a representation under Article 32 of the Ombudsman's Order, 1983, before the President but the representation has been rejected by the President.
3. In the circumstances, defendant No,1 (the appellant) filed an Application (C.MA. No,1518 of 1991) in the suit under Order 39, Rules 1 and 2 read with section 151, C.P.C. In September, 1991 praying as follows:- "(i) to suspend the order of the Federal Ombudsman;
(ii) to restrain and prohibit the defendant No,2 and its Officers, Executors, and Employees from debiting the account of the Defendant No,1 and/or in any manner, making any entry in the accounts/records of the Defendant No,1 for, on the basis or ground or purported implementation of the Ombudsman's said decision;
(iii) to order that if the defendant No,2 makes payment to the plaintiffs under the Federal Ombudsman's decision, such payment shall be subject to the judgment/decree passed in the suit."
' The said C.M.A. No,1518 of 1991 was presented before the learned Single Judge in his chambers on 7-9-1991 on which notice was ordered for 19-9-1991 and an ad interim , order was passed. However, on the next date, i,e. 8-9-1991 the counsel for defendant No,2 Bank moved an application (C.M.A.
No,1526/91) stating that, in accordance with the orders of the Ombudsman passed on 26-9-1991, defendant No,2 Bank had already made out a Pay Order on 5-9-1991 payable to the plaintiff in the sum of Rs,22,65,252 and that the said Pay Order may be allowed to be kept with the Nazir subject to further orders. The learned Single Judge allowed the request and directed the Pay Order to be kept with the Nazir. Arguments on the application were heard and, by a short order dated 23-9-1991, the learned Single Judge dismissed the application of the appellant and detailed reasons were given in the order dated 3-10-1991.
4. Being aggrieved, the present High Court Appeal has been filed by defendant No,1. We have heard the arguments of Mr. Mansoor Ahmed Khan, learned counsel for the appellant, Mr.EA. Nomani, learned counsel for respondent No,1 and Mr. Mansoorul Arfin, learned counsel for Respondent No,2 Bank. In this appeal Federal Ombudsman has also been impleaded as respondent No,3 although as a pro forma respondent. No one has appeared on behalf of the Ombudsman.
5. Mr. Mansoor Ahmed Khan had submitted that the appellant, National Beverages (Pvt.) Limited, was not a party to the proceedings before the Wafaqi Mohtasib. This is correct. By his order, the Wafaqi Mohtasib has held the United Bank Limited guilty of maladministration and directed the Bank to make payment of the amount mentioned in his order to Prince Glass Works Limited. The aforesaid order of the Ombudsman is not an order against the appellant and any observation in the order of the learned Single Judge which could be construed as placing any liability on the appellant on the basis of the order of the Ombudsman is to be ignored.
6. Three prayers were made in the application for interim relief by the appellant before the learned Single Judge. First was to suspend the order of the Wafaqi Mohtasib. Appellant is not aggrieved by the said order. It has not claimed any relief against the Ombudsman in the suit. In fact the Ombudsman has been made only a pro forma respondent in the present appeal. This prayer made by the respondent could not be granted.
The second request in the interim application of the appellant was that no debit entries be made by the United Bank Limited in the accounts of the appellant on the basis of the implementation of the Ombudsman's order. It is admitted position that debit had already been made and in fact a Pay Order had also been prepared by the United Bank Limited in favour of respondent No,1 in the amount required to be paid to respondent No,1 pursuant to the order of the Ombudsman. As the debit entries have already been made, this relief also could not be granted.
7. The last relief claimed in the said application by the appellant was that in case the United Bank Limited makes payment to respondent No,1 under the orders of the Ombudsman, such payment be subject to the judgment/decree passed in the suit. In this context, it may be mentioned here that during the, pendency of this appeal, the appellant has already filed Suit No,105/92 against the United Bank Limited and Prince Glass Works Limited for declaration, injunction and for cancellation of debit advice of United Bank Limited for Rs,22,65,252. In the said Suit No,105/92, interim relief has also been claimed. In the circumstances the entire application for interim relief filed by the appellant in Suit No,399/86 has become infructuous. Suit No,105/92 will of course be decided on its own merits.
8. As a result there is no merit in this appeal which is dismissed but with no order as to costs.