1. ' This is an application under Order 22, Rule 10, Order 6, Rule 17 and Order 1, Rule 10 read with section 151, C.P.C., filed on behalf of Habib Credit and Exchange Bank Limited.
2. Mr. S. Iqbal Ahmed, the learned counsel for the applicant contended that under the Amalgamation Scheme prepared by the State Bank of Pakistan with the approval of the Government of Pakistan, the Habib Bank Limited and the Liquidators of BCCI (Overseas) Limited entered into an agreement in accordance to which the three branches of the BCCI (Overseas) situated at Karachi, Lahore and Rawalpindi were merged with the Habib Bank Limited. He further submitted that Habib Credit and Exchange Bank Ltd. The present applicant, is a subsidiary of the HBL and pursuant to the Objects Clause 111 (a) of the Memorandum of Association of the applicant, it has acquired, took over and assumed the entire undertaking including the ownership, control and management of the three branches of BCCI (Overseas) Limited which already stood merged with the HBL. It is in the present capacity, after having acquired ownership plus control of the said branches, that the applicant has applied for the substitution of their name in place of the present defendant praying for such substitution on the title page of the plaint and further that wherever the word 'defendant' has been used in the plaint, pleadings and proceedings.
3. ' Mr. Muhammad Sharif, the learned counsel for the plaintiff, contended that under Order 20, rule 10, C.P.C. The present applicant cannot be regarded as the proper assignee and as such the name of the applicant cannot be substituted. He relied on the case of Mst. Surraya Begum and others v. Mst.
4. Suban Begum (1992 SCM R 652). His next contention was that the suit was filed on 26-7-1990 and the written statement was filed on 21-2-1991. The merger was made effective on 14-3-1992 and the State Bank of Pakistan gave permission on 19-4-1992. By virtue of the Articles of Association dated 21-6-1992 the applicant was allowed to commence business from 20-10-1992 but the applicant took no steps to file application for substitution of the name till 21-3-1993 as such this application cannot be granted.
5. ' I have heard both the counsel and have gone through the different statements/documents filed by the parties and the relevant law and the case-law referred during the arguments.
6. ' I will first refer to a letter dated 8-3-1992 from Deputy Secretary, Government of Pakistan, Finance Division to the Governor, State Bank of Pakistan giving approval, in terms of section 47 of the Banking Companies Ordinance, 1962 to the Scheme of Amalgamation of three branches of BCCI (Pakistan). With HBL. By another letter dated 12-3-1992 the Government of Pakistan notified the effective date of merger as 14-3-1992 and yet by another letter dated 9-3-1992 conveyed their approval for setting up of a subsidiary banking company by the HBL and to take over and carry out the operation of the three branches of BCCI (Pakistan) in pursuance of the Amalgamation Scheme.
7. In the Gazette of Pakistan dated 2-4-1992 the Government of Pakistan declared that the subsidiary company (by whichever name called) shall be effective for one year from the date of subscription of the share capital of the subsidiary Company, State Bank of Pakistan granted permission to carry out operation of the three Branches of BCCI (Pakistan) vide their letter dated 19-4-1992. On 16-9- 1992 the Government of Pakistan addressed their letter to Habib Credit and Exchange Bank Limited (the applicant) requesting them to implement the direction and minutes of the meeting held on 17-9-1992. The Corporate Law Authority by their letter dated 30-9-1992 gave consent to the subscription of shares. On 1st October, 1992 State Bank of Pakistan accorded licence. The Licence is in the name of Habib Credit and Exchange Bank Limited and by notification dated 2-11-1992 the State Bank of Pakistan declared the said bank to be a scheduled bank effective from 1-11-1992.
8. ' On an application (C.M.A. No,3919 of 1993) filed on behalf of the plaintiff the Amalgamation Scheme and the Agreement entered into between the HBL and Liquidators of BCCI Limited was submitted by the counsel of the applicant which was duly returned after looking into the different relevant clauses.
9. ' Now sections 47(1), (4), (ii) and 5(b) are as under:-- "47. Power of State Bank of Pakistan to apply to Federal Government for suspension of business of a banking company and to prepare scheme of reconstruction or amalgamation.--(1)
10. Notwithstanding anything contained in the provisions of this Part or any other law or any agreement or other instrument for the time being in force where it appears to the State Bank that there is good reason so to do the State Bank may apply to the Federal Government for an order of moratorium in respect of a banking company.
11. (2)..
12. (3)..
(4) During the period of moratorium, if the State Bank is satisfied that--
(a) in the public interest; or
(b) in the interest of the depositors; or
(c) in order to secure the proper management of the banking company; or
(d) in the interest of the banking system of the country as a whole, it is necessary so to do, the State Bank may prepare a scheme--
(i) ..... Not relevant .... ..
(ii) for the amalgamation of the banking company with any other banking institution (in this section referred to as "the transferee bank").
(5) the scheme aforesaid may contain for all or any of the following matters, namely:--
(a) ...... Not relevant ....
(b) in the case of amalgamation of the banking company the transfer to the transferee bank of the business properties, assets and liabilities of the banking company on such terms and conditions as may be specified in the scheme;
(c) to (1) not relevant ....
13. ' Section 47(12) of the Banking Companies Ordinance provides that "Copies of the Scheme or of any order made under subsection (11) shall be laid on the table of Legislature as soon as may be, after the scheme has been sanctioned by the Federal Government or as the case may be, the order has been made." Thus, it is clear that the law has authorised the State Bank of Pakistan after obtaining permission from the Federal Government to proceed, as deemed appropriate to the facts of the case, under the Rules.
14. ' As mentioned herienabove, the State Bank of Pakistan did obtain permission from the Federal Government, prepared the Amalgamation Scheme which was approved and action was taken accordingly. The merger of the three branches of BCCI was effected with the HBL and was later taken over by its subsidiary the Habib Credit and Exchange Bank Limited, the present applicant.
15. Now the next question which arises is whether the provisions of section 47(12) have been complied with or not.
16. ' The applicant had filed a letter dated 3-1-1994 addressed to the Government of Pakistan, Islamabad forwarding the copy of the Scheme of Amalgamation to be laid before the Legislature to fulfil the statutory requirements in terms of section 47(12) of the Banking Companies Ordinance, 1962. Since this letter did not confirm if the Scheme of Amalgamation was laid before the Legislature or not the applicants were directed to confirm the same. In response to this direction a photo copy of letter dated 12-10-1995 written by the Government of Pakistan, Finance Division addressed to the applicant was placed on record which indicates that the copies of amalgamation Scheme were placed on the table of the Legislature by the Government on 1-8- 1994.
17. ' The wordings of section 47(12) of the Ordinance very clearly indicate the intention of the law- makers that the instrument is "to be laid on the table of the Legislature" and no more indicating that it is a directory provision.
18. ' In Halsbury's Laws of England, Fourth Edition, Vol. 44 at para. 995 it has been described as under:-- "995. Instruments subject only to laving before Parliament.--Many statutes conferring legislative powers provide that instruments made in exercise of them are to be laid before Parliament, or, sometimes, the House of Commons alone after being made, but do not subject them to any further procedure.
19. ' Before 1948, the effect of such a provision was in every case a matter of consideration. It might be provided that an instrument was not to come into operation until the expiry of a specified period after laying; but no more was normally required than that it be laid, or laid forthwith or as soon as may be or laid within a specified period, and in these cases, unless the contrary intention clearly appeared, the provision would be held directory rather than mandatory, failure to lay the instrument at all or within the time specified in no way affecting its validity."
20. ' In the case of Surraya Begum (supra) relied upon by the plaintiff, it was held as under:-- "Order 22, rule 10, C.P.C. Is a permissive provision which enables the assignee to continue the suit in place of the assignor. The assignee need not bring himself on record, if he feels that his interest is being protected by his assignor, in which case the decision for or against his assignor would be binding upon him.
21. ' The suit in such a case would be treated as continuing for the benefit of the assignee, who can, after the decree is passed, file executive proceedings It is only when the assignee feels that his interest is in jeopardy and not likely to be protected by the assignor, that he can apply to become either a party under Order 1, rule 10, C.P.C. (See Ameer Muhammad v. Jiwanlal) AIR 1952 M.B. 154 or to be substituted for his assignor under Order 22, rule 10, C.P.C.".
22. As such, the Hon'ble Supreme Court has held it to be a permissive provision. It is for the assignee to decide as to when it feels that its interest is/or will not be protected and to apply for substitution.
23. What the Court in such cases has to see is that the assignment complies with all the legal provisions. Mr. Iqbal Ahmed has submitted that the assignor (BCCI (Overseas) Limited) has gone into liquidation and cannot look after the interests of the assignee (Habib Credit and Exhange Bank Ltd.).
24. ' In the instant case the assignee waited till the formalities were complied with and when it felt that the assignor will not be able to look after the interests of the assignee in a manner that the assignee itself can do, it applied for the substitution of the name. In my opinion, the applicant is entitled to substitution of their names in place of the defendant No,1 on the title of the plaint and elsewhere in the plaint as prayed.
25. ' In view of the above, this application is allowed as prayed. Amended title page to be filed within two weeks.
26. ' Civil Miscellaneous Application No,2902 of 1993 stands disposed of.