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Revision Application No.56 of 1977, decided on 16th January, 1986.

---Ss.42,54 & 56--Permanent injunction, grant of--Test--Plaintiff, held, would be entitled to seek permanent injunction under Ss.54 & 56 of Act I of 1877 even if found to be disentitled to declaratory relief under S.42 of the Act.

---O.VII, R.11--Rejection of plaint--Requirements--Application for rejection of plaint, held, had to be restricted to averments made in plaint which for purpose of that application should be taken to be correct.

---Ss.21,42,54 & 56--Revision--Suit for permanent injunction--Plaintiff specifically stating that he had deposited amount with petitioner and in breach of obligation under contract petitioner was debiting account of plaintiff illegally and unauthorisedly-- Plaintiff's suit, held, was maintainable.

Alvi Sons v. Government of East Pakistan and others P L D .968 Kar. 222 ref.

I.H.Zaidi for Applicant.

Respondent in person.

Date of hearing: 16th January, 1986.

The respondent filed a suit for declaration and permanent injunction seeking the following reliefs:----

(a) Declaration that the plaintiff is not liable to pay and the defendant is not entitled to charge, levy or recover from the plaintiff any amount by way of penal interest, management fee and/or service charges.

(b) Permanent prohibitory injunction against the defendant restraining them from charging, levying and/or recovering penal interest, management fee and service charges from the plaintiff.

(c) Full costs of the suit.

(d) Any other relief found due to the plaintiff on the facts and merits of the case.

The suit was filed on the ground that the respondent is maintaining investment account with the applicant which was opened on or about 12-2-1968. In the said account the respondent deposited various sums from time to time and loan was sanctioned in respect of which an agreement was also made between the parties which had been annexed with the plaint. According to the respondent the applicant unauthorisedly and in breach of the agreement has recovered penal interest and certain charges and management fee from the respondent which he is not liable to pay. It was pleaded that the applicant is entitled to charge interest only at the rate of 6 % P.A. It was alleged that previous to filing this suit the applicant had not charged penal interest, service charges or management fee but now such charges are being debited in his account without his consent. Coming to know all these debit entries the respondent protested on the ground that it was illegal and without any justification. As the applicant did not agree to the demand made by the respondent, he filed the suit.

The applicant instead of filing written statement filed an application under Order VII, Rule 11 C.P.C. In which the maintain ability of the suit was challenged on the ground that (1) it does not disclose any specific cause of action; (2) the relief is under-valued and proper court-fee has not been paid; and (3) the suit is barred under section 21 read with section 65 and under section 42 and 56 of the Specific Relief Act. The learned trial Court by order dated 10-11-1976 rejected the plaint; however, in appeal the learned Appellate Court set aside the said order holding that as the respondent has sought relief by way of permanent injunction which is not barred under law, the plaint could not have been rejected.

Mr.I.H.Zaidi, learned counsel for the appellant, has contended that admittedly the relief of declaration cannot be granted and as such the relief of permanent injunction which flows from the relief of declaration also cannot be granted. Mr.S.A.Sarwana, Advocate, the respondent, who is present in Court, on query has frankly conceded that under law he is not entitled to relief for declaration and he would not press it before the trial Court. Now since the respondent has withdrawn his prayer for seeking declaration the suit is left with the remaining prayer viz: permanent injunction against the appellant. I do not agree with Mr. Zaidi, advocate, that the relief of permanent injunction flows from the declaration and unless it is granted, permanent injunction cannot be granted. Grant of permanent injunction is governed by sections 54 and 56 of the Specific Relief Act if there) is any obligation, even under a contract, arising between the parties and if a breach is committed or apprehended, the aggrieved party is entitled to seek a permanent injunction. In the present case, as the appellant has filed an application under Order VII, Rule 11 C.P.C., one has to restrict to the pverments made in the plaint which for purposes of this application should be taken to be correct. The averments made in the plaint have been set out alleging breach of agreement in respect of amount deposited or advanced. The applicant is debiting certain amounts which it is not authorised under the contract or under the law.

Mr. Zaidi, the learned counsel, contended that as the matter relates to pecuniary interest and if a demand is raised by the applicant the respondent will have adequate remedy in law permanent injunction cannot be granted. The learned counsel has referred to Alvi Sons v. Government of East Pakistan and others (P L D 1968 Kar. 222) in which a suit filed for restraining the bank from paying money as a surety was held, to be not maintainable. The relevant observation is as follows:-

"12. The question is whether the defendant No.3 has threatened to invade the plaintiff's right to property. In other words, have the plaintiffs any moneys in deposit with defendant No.3, and does this defendant propose to apply these moneys to the payment of .the guarantee No such case has been set out in the plaint. The point, therefore, does not concern with any danger or threatened injury to the plaintiffs property. The relief sought by the plaintiffs could, at the most, be brought under the first part of section 54, under which an injunction to prevent breach of an obligation would be granted by the Court. The problem, therefore, resolves itself into the question, does defendant No.3 owe any obligation to the plaintiffs The plaintiffs were unable to precisely formulate the obligation owed to them by the defendants. They would, however, say that the defendant is under obligation not to misuse the plaintiff's deposits by appropriating the same to the guarantee given to the Government, or by making payment of the guarantee, or by retaining it wrongfully as security. But it is not claimed that the plaintiff's have any deposits with defendant No.3, the misuse whereof would constitute breach of a bankers' obligation to his customers. If the surety has applied its own funds to the discharge of the guarantee, the question then would be whether the payment has been made rightly or wrongly. Under section 145 of the Contract Act, the surety can claim indemnity from the principal debtor only for moneys rightfully paid by the surety under the guarantee and not for any moneys which he has paid wrongfully. Wrongful payment is not legal injury, and consequently cannot constitute breach of an obligation, because, if payment has been made wrongfully, the surety would be unable to claim indemnity from his principal debtor. Thus, accepting the plaintiff's case that the proposed payment of the guarantee by the defendant No.3 would be wrongful, as the plaintiffs have not committed breach of contract, this would not give any cause of action to the plaintiffs; for the defendant No.3, would have no legal claim for indemnity on the plaintiffs for payments which are made wrongfully. Wrongful payment would not be a payment under the guarantee at all, and would be a nullity as regards the principal debtors, who would have ample opportunity to protest himself against such payment if the surety brings a suit against him for indemnity. Such a suit would be an efficacious relief for the plaintiffs, and the existence of this relief presents a bar to the claim for injunction by reason of provisions of section 56(i) of the Specific Relief Act."

In this case, the suit was filed for restraining the Bank from paying the money to the creditors who under the deed of guarantee had demanded the same, as is obvious from the aforestated observations. There the plaintiff had not claimed that he had deposited any amount with the bank and it was misused constituting breach of banker s obligations. In the present case, the respondent has specifically stated that he has deposited amount with the applicant and in breach of the obligations under the contract it is debiting the account illegally and unauthorisedly. Therefore, on facts this case is completely distinguishable. I, therefore, find no force in the contention of the learned counsel for the applicant. The Revision Application is dismissed with no order as to costs.

H . B . T . / I-25/ K Revision dismissed.

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