RASHEED A. RIZVI, J.- This is a suit for declaration, Prohibitory injunction and recovery of Rs.6,23,35,096/- wherein plaintiffs have filed two applications, one under Order XXXIX Rules 1 & 2 CPC read with section-151 CPC (CMA 1084/93) and another application under section 151 CPC read with Order XI Rule I6 CPC (CMA 1417/95). Defendant No. 3 namely, M/s. Touche Ross has also filed an application under Order VII Rule 10 read with Rule 11 CPC challenging the maintainability of the suit as well as jurisdiction of this Court (CMA 4578/95). I, therefore, propose to deal with the last application at the first instance as it questions the maintainability of the suit.
2. Plaintiff is a company incorporated and registered under the Companies Ordinance, 1984.
Sometime in the year 1984 former Bank of Credit and Commerce International (Overseas)Limited, (hereinafter referred as "BCCI. Os"), filed a suit bearing No. 495/84 in this court against the plaintiff company and its directors for recovery of Rs. 79,832,124.20. Subsequently, two other suits were also filed by the BCCI OS against the Plaintiff. One of the defence raised by the plaintiffs in that suit was that a sum of Pound Sterling 200,000/- was lying in deposit with BCCIS in London which was liable to be adjusted against the claim of the BCCI OS. Leave to appear and defend in that suit was granted by this court to the present plaintiffs and its directors. On 31.5.1988 Suit No. 495/84 was decreed on the basis of compromise as the defendants No.1 to 5 in that suit admitted the claim of BCCI OS. Another suit bearing No. 539/87 filed by BCCI OS against the present plaintiffs was also decreed on the same day on the admission made by the defendant (now plaintiff hereinabove).
On the same date another Suit bearing No. 540/87 was also decreed as a result of compromise and on the admission of defendant No. 1 therein (now plaintiff in the present suit).
3. It is further case of the plaintiffs that the amount of Pound Sterling 200,000/- was deposited with BCCI OS at London in trust on the promise and assurance extended to the plaintiffs that the said amount shall be remitted from London to Karachi but BCCI OS failed to remit the same. Therefor, it is claimed by the plaintiffs that the defendants are liable to pay the said amount to them in Pakistan. In addition to the refund of the above mentioned amount, the Plaintiff has also challenged the amalgamation policy formulated by the Federal Government of Pakistan under sections 47/48 of the Banking Companies Ordinance, 1962 through which the three branches of BCCI OS working in Pakistan were amalgamated with Habib Bank Limited. Plaintiff has, also challenged establishment and incorporation of defendant No. 1 as a subsidiary of defendant No. 2 namely, Habib Bank Limited. It has been admitted by the plaintiff that BCCI OS as well as Bank of Credit and Commerce International (S.A) went under liquidation on the orders of a Foreign Court. In order to understand the exact nature of plaintiff's attack on amalgamation of BCCI OS with H.B.L., it would be advantageous to go through paras 7,8 and 9 of the plaint which are reproduced below:- "7. The plaintiff states that the said agreement/understanding and the purported take over of the business of BCCI in Pakistan is based on the aforesaid agreement by Defendant No. 2, not being in accordance with the established law and procedure is invalid, void and of no legal effect.
Significantly, no scheme which is alleged to have been framed by the State Bank of Pakistan under section 47 of the Banking Companies Ordinance 1962 and no order of Defendant No. 5 was ever furnished to the customers or the public at large and there is no legal basis for the alleged transfer in favour of Defendant No. 2 and which position is not only challenged by the Plaintiff but by several other parties in pending litigation, in this Hon'ble Court.
8. Thereafter, Defendant No. 2 after illegally and unlawfully purporting to have taken over the business of the former BCCI in Pakistan with all assets and liabilities committed a further illegality by incorporating and registering Defendant No. 1 as its subsidiary and procuring for Defendant No. 1 a Banking Licence as a Scheduled bank. This action on the part of the Defendant No. 2 was and is in violation of the Banking Companies Ordinance and the incorporation and registration of Defendant No. 1 is valid, void and of no legal effect.
9. The Defendant No. 2 thereafter illegally, unlawfully and without jurisdiction pursported to transfer the business of former BCCI in Pakistan along with all assets and liabilities, loans, deposits and customers to Defendant No. 1 are illegal, unlawful and in violation of law purported to assume and take over the same from Defendant No. 2. The Plaintiff challenges both the assumption and take over of the termor BCCI business, assets and liabilities by Defendant No. 1 as well as the alleged transfer of the same by Defendant No. 2 to Defendant No. 1. The Plaintiff slates that neither Defendant No. 1 nor Defendant No. 2 are the legal successors-in-interest of the former BCCI in Pakistan and the said Defendant No. 1 nor Defendant No. 2 are the legal successors-in-interest of the former BCCI in Pakistan and the only alleged legal successor-in-inteind? To such business, assets and liabilities is the Defendant No. 3 whose rights are subject to and control by the law of Pakistan."
4. In view of the facts as narrated in the plaint, the plaintiff has prayed for the following reliefs:- "(a) Declaration that the alleged/purported agreement/arrangement for transfer of banking business with assets and liabilities of the former BCCI in Pakistan to Defendant No. 2 as the result of the Tripartite agreement/arrangement allegedly entered into between the Defendant No. 3 Defendant No. 4 and Defendant No. 2 as illegal, unlawful, mala fide, without lawful authority and jurisdiction invalid, void and of no legal effect;
(b) Declaration that the incorporation and registration of Defendant No. 1 as a subsidiary of Defendant No. 2 and the alleged transfer of the business of the former BCCI with assets and liabilities by Defendant No. 2 to Defendant No. 1 is illegal, unlawful, mala fide, invalid void, without lawful authority and jurisdiction and of no legal effect;
(c) Declaration that the Defendants Nos.1 and 2 neither work nor are the legal successors-in- interest of the former BCCI in Pakistan and are not entitled to receive and recover any of the assets/monies allegedly due and payable to the former BCCI and that the legal successors-in- interest of the former BCCI, if any, and subject to the laws of Pakistan is only Defendant No. 3 and no other person or company; ^
(d) Without prejudice to the above, for an order directing Defendant No. 3 to furnish account of the sum of Pound Sterling 200,000/-lying in deposit/trust with the former BCCI in London and for an order/direction mandatory injunction directing the said Defendant to remit and transfer the said sum of Pound Sterling 200,000/- together with interest earned there upto date to Pakistan and for a further order/direction/mandatory injunction directing the said Defendants Nos.1 and 2 to the Plaintiff in their account for a sum being the Pakistani Rupees equivalent of Pound Sterling 200,000/- with interest , thereon at the rate of 20% per annum w.e.f, the date the said amount was deposited with BCCI, UK, till its remittance to Pakistan in the account of the plaintiff by Defendant No. 3; and/or
(e) For a decree against Defendants Nos. 1,2 and 3 in the sum of Rs.6,32,35,096/- being the Pakistani equivalent of the said deposit of Sterling Pound 200,000/- with interest upto 30.9.1993 and for further interest of the said amount with 20% markup from the date of the suit until judgment and from the date of the Suit until judgment and decree and further mark-up at the same rate until realisation of the entire decretal amount;
(f) Permanent injunction restraining Defendants Nos. 1 and 2 from remitting the said amount of Rs.6,32,35,096/- or its equivalent in foreign exchange out of the funds lying with Defendants No. 1 and 2 and agreed to be remitted by Defendants No. 1 and 2 to Defendant No. 3 under the alleged and questionable arrangement/agreement as aforesaid;...."
5. I have heard Mr. Mansoorul Arifeen and Mr. Yawar Farooqui, Advocates for the plaintiffs and Mr. S.A. Sarwana, Mr. Zahid Burhani and Mr. Afsar Abidi, Advocates for the defendants. At the very outset, it was strenuously argued by Mr. Sarvana that the plaintiff is not entitled for the declaration as of the instant case as the same does not fall within the purview of section 42 of the Specific Relief Act. He has further stated that the plaintiff has raised"its so called claim of Pound Sterling 200,000/- in the previous suits filed by BCC1 OS but did not press the same at the time when the suit was decreed on the basis of compromise, thus it was argued that now estoppal runs against the plaintiffs which has surrendered/waived its right of claiming or seeking adjustment of this amount in the previous suits. It. Was further argued that the same has also become time barred.
Then, it was contended by Mr. Sarwana that there was no branch of BCCI, OS in London and if there was any branch of BCCI, it was BCCI (SA), therefore the proper remedy, if any, available to the plaintiff, would be to file its claim before the Liquidator of BCCI(SA). In alternate, it was submitted that if, for the sake of arguments, it is presumed that any amount was deposited by the plaintiff with BCCI OS at London, then the cause of action was accrued at London and it would be the courts at London before which the claim of the plaintiff could be entertained. In support of his plea of limitation, the leamed counsel for the defendant No. 3 has referred to Article 62 of the Limitation Act, 1908 and has placed reliance on the cases of Asmy Trading Company, Karachi v. Shahadra Pioneer Co-operative Multi-Purpose Mill Society Ltd. Lahore (PLD 1975 Karachi 204) and Muhammad Akbar Khan v. Province of West Pakistan (PLD 1961 S.C 17).
6. On the point of estoppal, Mr. Sarwana has placed reliance on the case of Muhammad Sama Mondal v. Muhammad Ahmed Sheikh and others (PLD 1963 Dacca. 816) Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 S.C.346) and Shankar Sitaram Sontakke and mother v.
Balkrishna Sitaram Sontake and others (AIR 1954 S.C. 352).
7. It was vehemently argued by Mr. Maasoorrul Arifeen that the claim of the plaintiffs for refund of Pound Sterling 2.00,000/- is neither in the shape of set off nor in the mode of counter claim, therefore, it was submitted that this, being independent claim, the present suit is maintainable and is not barred by the provisions of section 47 of the Civil Procedure Code, 1908. However, from the documents filed with the plaint as well as with the witted statement of the defendant No. 3 which are the orders passed by this Court in the three earlier suits as mentioned hereinabove, it appears that the plaintiffs who was admittedly one of the defendant in those three suits had resiled this plea depositing Pound Sterling 2,0,000/- with the BCCI at London and claimed its adjustment but subsequently at the time when all those three suits were being decreed on the basis of compromise, when the present plaintiff admitted the claim of BCCI OS but against different amounts, there the adjustment of this amount was not claimed. The nature of claiming a set off and its effects are provided in Rule 6 to Order VHI CPC as well as in Rule 19 to Order XX CPC. The nature of counter claim was elaborately defined by Justice (Retd.) Zafar Hussain Mirza in a Full Bench case decided by the honourable Supreme Court i.e. Syed Naimat Ali and 4 others v. Dewan Jairam Dass and another (PLD 1983 S.C.5) in the following words: "...... A counter claim, on the other hand, is essentially a weapon of offence and is not really relevant as a plea in defence to the claim of the plaintiff. It enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action. Its essential nature is that of a cross suit pleaded through the means of the written statement in the same suit. Having regarded to these essential features of the character of a counter claim, it is plain that a right to make a counter claim is1 not admissible if it does-not fall within the ambit of Order VIH rule 6, C.P.C, or qualify as an equitable set-off. The right to make a counter claim has been always held to be a statutory right and as already observed there is nothing in the Code of Civil Procedure conferring the right, to plead such counter claim, upon a defendant. Thus it has been held in certain decisions of the Privy Council and of the High Courts that a counter claim was not admissible in the Muffasil Courts.
8. In view of the above discussion, I am inclined to hold that the nature of claim to the extent of recovery of @200,000 '- is neither in the nature of set off nor counter claim as the present suit has not been filed in the circumstances as discussed in the case of Syed Niamat Ali (supra). However, this will preclude plaintiff from raising adjustment of this amount in the execution proceedings of the three suits as mentioned in the earlier part of this order. I have made this observation in line with the provisions of section 47, C.P.C. This view leads me to another question whether the claim of plaintiff for recovery of @200,00/- is barred by Article 62 of the Limitation as argued in by Mr. Sarwan. In alternate, Mr. Sarwana has also relied upon Article 115 of the Limitation Act. However, I am of the considered view that it would be Article 60 of the Limitation Act which, in the circumstances of the case, is attracted. It is pertinent to note that plaintiff has pleaded an agreement and understanding through which the aforesaid amount was deposited with B.C.C.I. At London in trust and as a result of violation of that agreement he has filed the instant suit at Karachi. Mr. Arfeen and Mr. Sarwana, both have made reference to-Annexure 'A' to the plaint which is an order dated 5.10.1987 passed by a learned single Judge of this Court in Suit No. 495 of 1984 (BCCI (OS) v. Global Produce Ltd. And 5 others). It is an order through which leave to defend and appear was granted to the defendants in that case on the consideration, inter alia, that an amount of @200.000/- was deposited with the plaintiff's bank at London. Subsequently, the said suit was compromised and the amount as claimed by the plaintiff of the present suit, who at the relevant time was compromised and the amount as claimed by the plaintiff of the present suit, who at the relevant time was one of the defendants, did not claim adjustment at the time when the former suits were being decreed.
On these admitted facts of the case, it was argued by Mr. Sarwana that the claim of the plaintiff has become time barred. It is, therefore, doubtful whether the plaintiff's claim. Of Pound sterling deposited with B.C.C.I. In London sometime much prior to the year 1984 and the demand for its adjustment was made in the Suit No. 494/85 during the year 1987 can be claimed through present suit which was filed in the year 1993, six years after the claim of adjustment of that amount was made by the plaintiff. It is being so held on the ground of the rule laid by a leamed single Judge of this Court in Government of Pakistan v. S.M. Hasan and another (1992 M LD 1810). In that case, one of the controversy involved was whether the suit was barred in view of Article 60 of Schedule I of the Limitation Act, 1908. It was admitted that respondent S.M. Hassan had opened a fixed deposit account with the Post Master General, Southern Circle. Karachi and on 28.11.178, through a notice demanded its encashment. It was argued on behalf of petitioner that the time for filing of suit commenced from the date when Post Office refused to make payment on the ground that drawer's signature were different. This contention was not upheld. In respect of Article 60, following view was held by this Court:- There can be no doubt that a suit for recovery of money deposited under an agreement that it well be payable on demand, including money of a customer in the hands of his bankers so payable, can only be fi ted within a period of 3 years when the demand is actually made under Article 60 of Schedule I to the Limitation Act. Article 60 of Schedule I of the Limitation Act specifically prescribes a period for filing of suits relating to transitions of Bank and its customers. Time so prescribed would run when the demand is made. Section 10 of the Limitation Act will have no application to the facts of this suit."
I am also conscious of the rule that in the case of mutual open and current account a suit- for recovery of balance due on such account, is generally governed by Article 85 of Limitation Act, 1908. I am fortified in my view by the case Muhammad Naeem Butt v. Allied Bank of Pakistan, Peshawar (PLD 1985 S.C. 298).
9. Reverting to the question of cause of action, it is pertinent to note that even if the contents of plaint are accepted to be correct that the said amount of pound sterling was deposited with BCCI at London and a claim is rightly made at Karachi After amalgamation BCCI (OS) with. The Habib Bank Ltd., still the entire plaint is silent on the point as to what were the terms and conditions of such deposit; what is the date of such deposit; who has deposited the said amount on behalf of plaintiff; who was its beneficiary; and what was the nature of such deposit? I am unable to subscribe to the submission of Mr. Arfin that no receipt is required when an amount is deposited in trust with any scheduled bank in the U.K. Neither any law, rule or regulation nor any manual of instructions was cited in support of such contention. Be that as it may, I am of the considered view that the plaintiff was not able to demonstrate that any cause of action was accrued within the jurisdiction of this Court. Even if the provision of Explanation II to Section 20, C.P.C, is applied, for which I have reservation, on the grounds that BCCI was having branches at London and Karachi, again it would not advance the case of plaintiff as admittedly no cause of action was accrued at Karachi. (Please see Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd, 1981 S.C.M.R. 4943 To conclude, no cause of action is available to the plaintiff, as regards territorial jurisdiction, to file a claim at Karachi for recovery of 200,000/-.
10. It was also argued by the defendants that in respect of prayer (a), (b) and (c) in the plaint, such relief are barred by virtue of section 42 of the Specific Relief Act. It is settled law that in a suit under section 42 of the Specific Relief Act, 1877, a plaintiff can seek declaration either regarding his right to any legal character or with respect to any right as to property claimed by him. In order to bring such suit within the scope of section, 42, a plaintiff has to further show that he apprehends infringement of his legal status or character which forms part of any of the 15 legal conditions as envisaged by Professor Holland and as referred in the case of Alavi Sons Ltd. v. The Government of East Pakistan and 2 others (PLD 1968 karachi 222). Lt would not be out of context if the observation of a leamed Division Bench of Lahore High court in the case of Abdur Rahman and 3 others v, Syed Amir Ali Shah Rokhari and 4 others (PLD 1978 Lahore 113) is referred. In the said illustrious judgment several case law on the point of section 42 of the Specific Relief Act was considered including the cases of Alavi Sons (Supra), Md Shaft & Sons v. Kotah State Glass Factory (AIR 1930 ALL. 753), Ori Lai v. Muhammad Iqbal (25 IC 908), Rai Keshwar Singh v. Shyatn Bihari Singh (AIR 1927 Pat. 286) and Muhammad Yaqub v. Mangru Raj (7 IC 318). It was held as follows:
36. Lt is clear from these authorities that section 42 would be attached to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must he one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have-no concern with the vindication of the plaintiff's title to status and property. (Underlining is. Mine.)
11. In the present suit, the plaintiff is seeking declaration to the effect that the transfer of management of BCCI to defendant No. 1 and its subsequent merger with defendants No. 3 and 4 be declared unlawful. Secondly, declaration to the effect that the defendants No. 1 and 2 are neither legal successors of the former BCCI in Pakistan nor entitled to receive and recover any of the assets/money pertaining to former BCCI which does not fall within any of the legal characters or status of plaintiff and, therefore, the plaintiff which is a body incorporated under Companies Ordinance, 1984 cannot maintain such suit. This being the legal position the plaintiff's suit upto the extent of reliefs (a), (b) and (c) in the prayer clause of the plaint completely appears to be barred. I am, therefore, inclined to hold that this is an incompetent suit patently bored for want of jurisdiction, barred by limitation and without cause of action.
12. As a result of the above discussion, the defendants' application under Order VII. Rule 11. C.P.C.
(CMA~4578/95) is accepted and the plaint in the above suit stands rejected with no order as to cost. Consequently, remaining two applications have become infractors which are also dismissed.