1. ' Plaintiff M/s. Atlantic Carpets has filed this suit claiming damage to the tune of Rupees twelve billions with compound interest from defendant-Bank through its partner Mr. Nadeemul Hassan for violating the provisions of Protection of Economic Reforms Act, 1992.
2. ' It is the case of the plaintiff that it deals in export of carpets and has earned handsome amount of foreign exchange for the country. An order was received on 10-5-1994 from M/s Magido Oriental Rug Export USA demanding four items of carpets of different sizes. The details of this order is given in para. 5 of the recovery suit. While preparing the invoices the rate of one item was inadvertently printed more than the correct one. The plaintiff on coming to know about this inaccuracy got it amended by giving an application to the Assistant Commissioner Customs and revised invoices were submitted after duly payment of amendment fee.
3. ' Learned counsel has stated that in spite of all this, the Assistant Collector Customs Export Dry Port got F.I.R. No, 42 of 1994 registered at Police Station Railway Police Mughalpura on 9-8-1994 under section 156(1)(14)(77) of the Customs Act, 1969. During the course of enquiry the defendant-Bank provided to the Superintendent Customs Anti-Smuggling not only the details of the company's account but also of its partner Mr. Nadeem-ul-Hussan through its letter dated 28-7-1994 along with statement of accounts.
4. ' Learned counsel has stated at the bar that in view of embargo placed by sections 5 and 9 of the Protection of Economic Reforms Act, 1992 not only secrecy has been provided to the bona fide banking transaction but complete immunity has also been provided to the foreign currency accounts. The plaintiff in view of this disclosure has suffered tremendous loss not only of its reputation but also its business. A further argument has been advanced that the F.I.A. And Customs Authorities further involved the plaintiff and other family members in F.I.R. No,3 of 1995, 4 of 1995 and 8 of 1995. Reliance in this respect is placed upon Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90) and Messrs Grain System (Pvt.) Ltd. And 10 others v. Agricultural Development Bank (1993 SCM R 1996).
5. ' The defendant Bank has filed PLA No,53-B of 1999 and has also taken certain preliminary objections qua the maintainability of the suit. Learned counsel appearing for the defendant has argued that in view of the section 9(1) of the Banking Companies (Recovery of Loans, Advances Credits and Finances) Act, 1997 (hereinafter referred to as an Act) the plaintiff being merely an account holder and not a customer, the suit for recovery of damages would not be maintainable. A further argument has been advanced that the impugned letter was issued as far back as on 28-8- 1994 while the suit has been filed in March 1999, as such, in view of Article 36 of Limitation Act it is barred by time as the limitation of two years had already expired prior to the promulgation of the Act. Reliance in this respect is placed upon Valuegold Limited and 2 others v. United Bank Limited (PLD 1999 Karachi 1), Nasimuddin Siddiqui and another v. United Bank Limited and others (1998 CLC 1718), N.D.F.C. v. Anwar Zaib White Cement Ltd. And others (1999 M LD 1888) and PICIC v. Frontier Ceramics Ltd. And others (2000 CLC 287).
6. ' I have considered the contentions and have gone through the documents appended with the suit.
7. The impugned letter dated 28-8-1994 on the basis of which damages have been claimed is as under: "Re: Investigation in case F.I.R No,42 of 1994 dated 9-8-1994 lodged against Messrs Atlantic Carpets, Lahore.
8. ' We are in receipt of your Letter No,C.No,30-CUS/I&B/94/290, dated 23-8-1994 wherein you have requested to supply the information in exercise of the power conferred under section 26 of the Customs Act, 1969 and like to inform you that our reply regarding paras. A and D, is nil as M/s. Atlantic Carpets, Lahore are not maintaining their Foreign Currency Accounts with us and Mr. Nadeem-ul-Hasan is also not maintaining Pak Rupees Current Account.
9. ' However, as per your inquiry vide paras. B and C, we confirm that Atlantic Carpets are maintaining their Current Accounts with us bearing A/c. No,602433 while Mr. Nadaeem-ul-Hasan is maintaining his FCY Account No,871394 with us.
10. ' We, therefore, enclose herewith a complete set of the statements of accounts for the both A/Cs.
11. Covering the period 1-1-1993 to date."
12. ' Its reading demonstrates that it was written in response to the letter written by Superintendent, Customs Anti-Smuggling respecting the investigation of F.I.R. No,42 of 1994 (supra). It is reflected from the documents and is not denied that the plaintiff is only an account holder. No financial facility whatsoever has been extended to it by the defendant-Bank. It is also to be noted that the information qua the foreign currency account has been given respecting M/s. Nadeem-ul-Hasan its partner and not that of plaintiff. The suit under sections 7(4) and 9(1) of the Act would only be maintainable if the same is filed either by the borrower or a customer or the Banking Company. In the case in hand as already stated the plaintiff is only an account holder and not a customer or a borrower. There is no dispute between the plaintiff and the defendant-Bank qua any loan as the same has not been granted by the defendant-Bank. Reliance in this respect is placed upon Nasimuddin Siddiqui and another v. United Bank Limited and others (1998 CLC 1718) where it was held as under:-- "A close scrutiny of the above two provisions of the Banking Companies Act, 1997 namely sections 7(4) and 9(1) would reveal that a borrower or a customer or a Banking Company will be entitled to file a suit when any of them commits a default in fulfilling any obligation with regard to any loan or finance. The first requirement is that the parties should be either a borrower or a customer or a Banking company which have been defined in section 2 of the Act, 1997. According to subsection
(c) of section 2 a borrower means a person who has obtained a loan under a system based on interest from a banking company and includes a surety or an indemnifier. This definition is same as of Ordinance, 1979 except to the extent that the loan must he based on the system of interest.
13. (For detailed discussion on the terms borrowed, see United Bank Ltd. v. Adamjee Insurance Co. Ltd.
14. (1988 CLC 1660). The customer has been defined in subsection (d) to section 2 which means a person who has obtained finance under a system which is not based on interest from a banking company or is the real beneficiary of such finance including a surety or indemnifier. Again, this definition is the same as of customer in the Ordinance, 1,984 except that the finance should not be based on system of interest. Subsection (a) to section 2 also defines the Banking Company and the names of such Banking Companies have been disclosed in the Schedule to the Act, 1997."
15. Furthermore even the customer can only file a suit under the Act if there is some dispute with the banking company in fulfilling any obligation with regard to any loan or finance. Plaintiff in his entire suit has not stated a single word that the defendant-bank has committed default of this nature.
16. Though I do not want to dilate upon the merits of this case but suffice it to say that the criminal cases were got registered on the basis of information imparted by Pakistan Carpets Manufacturer and Exporter Association. No reference whatsoever has been made in either of the F.I.Rs, registered against the plaintiff regarding the information imparted- by the defendant-bank. To substantiate this fact a few lines from F.I.R. No,42 of 1994 registered at Police Station Railway Police Mughalpura are noted as under: "The said Shipping Bills were in process when an information was received from Pakistan Carpet Manufacturers and Exporters Association, Lahore that the abovesaid exporter had deliberately misdeclared the value and the quality of the carpets under reference. It was further informed by the said Association that the abovesaid exporter is trying to export carpets of much inferior quality in the garb of very superior quality and would try to deprive the national exchequer by claiming rebate worth millions of rupees by over invoicing the goods. Thereafter, on the same day, the said exporter handed over new shipping bills without any Machine Number thereon. The new shipping bills were attached with new invoices and other documents and suspicious Form 'E'. However, later on, the exporter also supplied the original shipping bills and other documents on a demand raised by the Customs Authorities. The previous record of the said export firm was scrutinized which showed that the same exporters has shipped similar consignments of carpets to U.K. And U.S.A.
17. During June 1994 at grossly over invoicing and untrue values with the intention of claiming from the Government undue amount of rebate. (Underline is mine).
18. ' Further regarding the maintainability of the suit reference is made to PICIC v. Frontier Ceramics Ltd. And others (2000 CLC 287). In that precedent in a suit for recovery filed under the Act, certain defendants were struck off as the learned counsel for the plaintiff therein conceded that they had not undertaken any personal liability in relation to the loan subject-matter of that suit. Accordingly the learned Judge after striking off those defendants allowed the plaintiff to file an amended plaint.
19. Here in the present case at the cost of repetition as reflected from the preceding resume no financial facility whatsoever has been advanced by the defendant-Bank in the present case of the plaintiff, as such, the same would not come within the purview of section 7(4) and section 9(1) of the Act.
20. ' Resultantly for what has been stated above the present suit is not maintainable before this Court and is dismissed as such.