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Summary Suit No. 359 of 1985 and Civil Miscellaneous Appeal No.127 of 1986, decided on 7th May, 1986.

‑‑‑ Application for substitution of parties‑‑Wrong quotation of provision of law on application was merely a technical default‑‑Such application, held, and could not be dismissed on such ground‑‑Court would look to substance of application and decide according to proper law applicable thereto.

‑‑‑(. 48‑‑Companies Ordinance (XLVII of 1984), Ss. 287 & 503(1)‑ Merger of Banks‑‑Procedure to be followed‑‑Provisions of S. 48, override provisions of any other law which would include Companies Ordinance, 1984‑‑Section 503(1)(b) would make provisions thereof, applicable to banking companies only, if same were not inconsistent with provisions of Banking Companies Ordinance, 1962‑‑Section 48 of Ordinance LVII of 1962 being inconsistent with S. 287 of Ordinance, 1984, so far as Banking Companies are concerned, held, would prevail‑‑Merger of Banks in accordance with S. 48 of Ordinance, 1962, could not be disputed.

Sajid Zahid for Plaintiff.

Mansoorul Arfin for Defendants.

This is an application filed by the plaintiffs praying that as the Union Bank has merged with the Dubai Bank of Middle East Limited, the latter being the successors of the plaintiffs have taken over its assets and liabilities, they should be substituted as plaintiffs in place of Dubai Bank. Mr. Mansoorul Arfin the learned counsel for the defendant grounds. The first objection is that the Order VI, rule 17 which is provision Arfin the learned counsel for the defendant has contended that the question of merger is a question of fact and unless evidence is led it cannot be proved that the applicants have merged and secondly as the merger has been made under a foreign law it should be proved as a fact. It was also contended that even if the assets and liabilities have been taken over the rights in respect of movable and immovable property will not transfer to the applicants automatically by virtue of the merger unless such rights are transferred by a registered document. The learned counsel has also referred to section 48 of the Banking Companies Ordinance and contended that it is not applicable to the present case. According to him the procedure provided by section 287 of the Companies Ordinance, 1984 should have been followed.

So far the amalgamation is concerned the learned counsel for the applicant has referred to section 48 of the Banking Companies Ordinance which lays down procedure for amalgamation of Banking Companies. Similar question arose in H.C.A. No. 36 of 86 where the order granting application for substituting applicant's name in place of Dubai Bank was challenged. While referring to section 48 of the Banking Companies Ordinance it was observed:

A perusal of section 48 of the Banking Companies Ordinance, 1962, shows that the provisions thereof override the provisions of any other law which, in our opinion, would include Companies Ordinance, 1984, being special provisions concerning the Banking Companies. If there could be any doubt the same is removed by the provisions of section 503(1), clause (b) of the Companies Ordinance, 1984 which makes the provisions thereof applicable to the Banking Companies only, if the same are not inconsistent with the provisions of the Banking Companies Ordinance, 1962. Accordingly the provisions of section 48 being inconsistent with the provisions of section 287 of the Companies Ordinance, 1984 so far as Banking Companies are concerned, would prevail. Therefore, the merger of Dubai Bank Limited into the Union Bank of Middle East Limited was to be done only in accordance with the Provisions of section 48 of the Banking Companies Ordinance, 1962, and it is not disputed that the merger did B take place in accordance therewith. Thus the Union Bank of Middle East Limited acquired all the rights of Dubai Bank Limited.

In view of these observations the contentions of the learned counsel for the plaintiff have no force.

As the merger has been done in accordance with section 48 o the Banking Companies Ordinance which over‑ride other provisions of law, the rights and liabilities of Dubai Bank stand transferred to the new bank and question of registration of any document for the transfer of right does not arise. State Bank of Pakistan by its Notification, dated 6‑1‑1986 has recognized the merger and on that basis Dubai C Bank Limited has been de-scheduled. In view of this Notification the other contentions regarding applicability of foreign law and its proof do not arise. The other aspect of the case is that so far the defendants have not been granted leave to appear and defend the suit. Therefore, in my view they are not entitled to raise these objections at this stage. The application is allowed. Amended plaint to be filed within two weeks.

A.A. ‑‑‑‑‑ Application allowed.

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