HABIB BANK LIMITED vs Messrs ESS EMM ESS CORPORATION PAKISTAN LIMITED

MIAN HAMID FAROOQ, J.---Appellant-Bank, through the filing of the present first appeal, has called in question judgment dated 17-7-1995, whereby the then Special Judge Banking Court rejected the plaint in appellant's suit for recovery.

2. Precisely stated the facts of the case are that the appellant-Bank, on 3-11-1988 filed the suit for recovery of Rs.9,21,734.54, together with interest at the rate of 14%, against the respondents, before the then Special Judge Banking, Lahore. The respondents instituted the application seeking leave to appear and defend the suit, which was resisted by the appellant-Bank. During the proceedings in the suit, when it' came to light that the plaint and Wakalatnama were not signed by attorney of the appellant-Bank, it filed an application under section 151, C.P.C., with the prayer that the plaintiff may be called in the Court to put its signatures on the plaint as well as on Wakalatnama, so that the defects could be cured. The said application was opposed by the respondents and, ultimately, the learned Judge Banking Court, after finding that the institution of the suit was nullity, proceeded to reject the plaint, vide impugned judgment dated 17-7-1995, hence the present appeal.

3. Despite publication made in the newspaper, the respondents did not enter appearance, therefore, they have been proceeded ex parte, vide separate order of even date.

4. Learned counsel for the appellant has contended that failure to sign the plaint or/and written statement is a mere irregularity and can be cured at any stage of the proceedings. He has further submitted that upon the disclosure of the said irregularities, the appellant-Bank filed the application, but the same was erroneously turned down. He has relied upon Ismail and another v.

Mst. Razia Begum and 3 others (1981 SCM R 687), Muhammad Sarwar alias Feroze All v. Abdul Ghani and 7 others (1980 CLC 946) and Ghulam Mohy-ud-Din and another v. Noor Dad and 4 others (PLD 1988 SC (AJ&K) 42).

5. In view of the arguments of the learned counsel , we have examined the available record, perused the impugned judgment and find that the appellant has been non-suited and its plaint was rejected on the grounds that in the plaint the names of the principal officers and general attorney have not been recorded; the plaint is signed only by the counsel of the plaintiff; the verification is not made by any bank officer and that Wakalatnama, in favour of the appellant's learned counsel, namely Sheikh Zahoor Ahmed, Advocate does not bear the signatures of any bank officer. We are of the view that the said defects are merely irregularities and do not entail the maximum penalty of the dismissal of the suit or the rejection of the plaint. These defects can be remedied at any stage of the proceedings, for which the appellant-Bank, during the pendency of the suit, filed the appropriate application, but unfortunately the learned Banking Judge did not appreciate the correct legal position and erroneously dismissed appellant's application. We are of the view that under the present circumstances, upon filing an appropriate application, by the appellant-Bank, the learned Banking Court ought to have allowed the appellant to cure the defects on certain documents by calling upon the concerned attorney of the Bank, instead of non-suiting them on these irregularities. We have examined the impugned order and find that the same is in violation of the law laid down by superior Courts of the Country reported as Toor Gul v. Mst. Mumtaz Begum (PLD 1972 SC 9), Ismail and another v. Mst. Razia Begum and 3 others (1981 SCM R 687), Liaqat Hayat and 5 others v. Muhammad Sarwar alias Feroze Ali and 2 others (1985 SCM R 1386), Ghulam Mohy-ud-Din and another v. Noor Dad and 4 others (PLD 1988 SC (AJ&K) 42) and Muhammad Sarwar alias Feroze Ali v. Abdul Ghani and 7 others (1980 CLC 946).

In view of the above numerous case-laws on the subject, we feel that the learned Special Judge Banking Court committed grave legal errors in rendering the impugned judgment and we do not see any reasons to maintain the same.

6. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment dated 17-7-1995 is set aside, with no order as to costs.

Resultantly, appellant's suit for recovery, against the respondents, shall be deemed to be pending before the learned Banking Court, which shall, at the first instance, allow the appellant to remedy/cure the defects in the documents by calling the concerned officer/attorney of the Bank to put signatures on the relevant documents and thereafter to decide the suit, after hearing the parties and of course in accordance with law.

Office is directed to immediately transmit the record to the learned Banking Court.