Messrs DATA LABORATORIES (PVT.) LTD. through Chief Executive and 3

ORDER

' UMAR ATA BANDIAL, J.---Learned counsel for the private respondents has taken objection to the maintainability of this petition on the ground that the petitioners have the remedy of appeal available against a final order. That the impugned order dated 24-11-2005 is such a final order.

Learned counsel for the petitioners clarifies that the impugned order is attacked to the extent of allowing the implement of the private respondents in the suit filed by the respondent No,2 Bank that is pending before the learned Banking Court. The other relief given by the impugned order is the grant of leave to defend the suit to all the defendants including the private respondents. He submits that in respect of both reliefs granted by it, the impugned order is not final in disposing of, concluding, or finally affecting the rights of the parties in or the proceedings before the learned Banking Court. Hence the impugned order is an interim order and no appeal is competent against it under the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance").

2. Learned counsel for the private respondents is not in a position to cite any law that a final order under the statute includes an order lacking finality with regard to the outcome of A the proceedings or with respect to the rights of the parties thereto. The objection taken is specious and is therefore, rejected.'

3. The effect of the impugned order is to give a finding that the private respondents are the customers of the respondent-Bank in the banking suit pending before the learned Tribunal. This consequence follows because the relationship of a customer and financial institution is a jurisdictional prerequisite for a Banking Tribunal to assume jurisdiction over a defendant under the Financial Institutions (Recovery of Finances) Ordinance, 2001. Whereas the learned counsel for the bank denies the existence of such a relationship the learned counsel for the private respondents has said nothing to establish the same on record.

4. The jurisdictional pre-requisite of a relationship would be established if the private respondents were able to show the existence of any agreement or their course of dealings with the bank in the capacities enumerated in section 2(c) of the Ordinance. The impugned order does not consider whether the, Bank's letter dated 26-10-2002 discloses a relationship of customer and financial institution between the private respondent and the bank. On this subject the rule laid down in Rubina Jamshed v. United 'Bank Limited 2005 CLD 50 and Mst. Saloomi Rana v. First Leasing corporation Ltd. Through Adnan Naseer and 3 others 2002 CLD 1462 would require a third party to demonstrate on record a contractual relationship or a quasi contractual arrangement whereby the bank can be deemed to have accepted it as a customer in a novated arrangement. The mere fact that the bank has accepted payment offered by a third party in partial discharge of a.

Principal debtor's liability strengthens the status/claims of that third party against the principal debtor rather than establish its presumed relationship as customer of a creditor bank. The analysis of this aspect is lacking in the impugned order. Accordingly, the relief of impleadment of the private respondents in the suit is not made out on the existing record of the learned Banking Tribunal.

Therefore, the impugned order is declared to be illegal and without lawful authority. However, the private respondents may, if so advised, move the learned Banking Court afresh to. B bring relevant material and grounds to disclose the existence of their jurisdictional relationship with the respondent-Bank in order to seek their impleadment as customers. Disposed of.