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Petitioner: BANK ALFALAH LIMITED, KARACHI VS Respondent: M/s. CALLMATE TELIPS TELECOM LTD., KARACHI and 5 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title:BANK ALFALAH LIMITED, KARACHI vs M/s. CALLMATE TELIPS TELECOM LTD.,
KARACHI and 5 others Case No.: Suit No, B-01 of 2008 and CMA No, 8617 of 2009 Date of Judgment:2015-08-24 Reported As: PLJ 2016 Karachi 49 Result: CMA dismissed Judgment ORDER C.M.A. NO. 8617 OF 2009 ' By means of this order I intend to dispose off CMA No, 8617 of 2009, filed by the Plaintiff Bank under Order XXXVIII Rules 5 & 6, CPC r/w Section 151, CPC, whereby the plaintiff Bank is seeking attachment before judgment of an immovable property Bearing No, 99, CF-1/5, Clifton. Karachi, ['subject property'] belonging to M/s. Interglobe 'Commerce (Pakistan) Private Ltd. [Defendant No, 6 herein] inter alia, on the following facts and grounds:- 2.The Plaintiff Bank, filed the instant suit for recovery of Rs, 258,846,552/- with cost of funds against the Defendants including the Defendant No, 6 under Section 9 of the Financial Institutions [Recovery of finances] Ordinance 2001 [In short FIO, 2001] with the following prayers:-- A.A decree for payment of sum of Rs, 258,846,552/- with cost of funds at the rate fixed by the State Bank of Pakistan from the date of default till realization: B. Attachment and sale of the Hypothecated properties and Assets of the Defernlant No, 1 as specified in Paragraph 5 above and annex" "B" to "B-7". C.Attachment and a of the mortgaged property of Defendant No, 5 sp. Fled in Paragraph 6 above and annexes "C" to "C- D.Cost of suit may also be awarded. E. Any other relief that this Honorable Court may deem fit and proper in the circumstances of the case. 3. No doubt, it is undisputed position that the 'subject property' is owned by M/s. Interglobe Commerce (Pakistan) Private Ltd. Who per Bank's stand, is a guarantor in the instant suit viz-a-viz. The outstanding amounts payable by M/s. Callmate Telips Telecom Limited [Defendant No, 1
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herein], and in its' such capacity has been joined in the instant suit as Defendant No, 6. The instant suit, it is needless to say, has already been decreed on 10.03.2008 against the 'principal customer'- Defendant No, 1 who was wound-up in J.Misc. ,.No, 05/2008. The Official Assignee, Karachi is the official Liquidator of the Defendant No, 1 Company. The relevant portion of Order dated 10.03.2008 whereby, the present suit was decreed against Defendant No, 1 principal customer, reads as follows: "Learned counsel for the plaintiff stated that Defendant No, 1 has been served by all modes as directed by this Court but he failed to turn up and to file any application for leave to defend as such against him, the suit is to be decreed under Section 1 of sub-section (10) of Financial Institution (Recovery of Finances) Ordinance, 2001. The record shows that on 15-02-2008 the plaintiff has produced the receipts of Courier, Registered Post A.D. And also publications in newspaper i.e, Daily "Dawn" and Daily "Jang" for the date of hearing on 17-01-2008. But order was not passed to decree the suit as the statutory period not completed. None present for Defendant No, 1 nor intimation is received and nor he filed any application for leave to defend as such suit stands decreed as prayed except the para C of prayer Clause of the plaint against the Defendant No, 1 in light of under Section 1 of sub-section (10) of Financial Institution (Recovery of Finances) Ordinance, 2001. [Underlining is mine] ' Mr. Saalim Salam Ansari advocate for Defendants No, 2 to 6 who has filed leave to defend as well as written statement and also three CMAs No, 1605/2008 to 1608/2008. 'Mr. Abdul Sattar Lakhani Advocate for plaintiff stated that it is not necessary to file any replication on application for leave to defend as well as the pending CMAs and can be straight away argue. However, again stated that if this Court adjourned the case for hearing of leave to defend of Defendants No, 2 to 6 as well as their applications mentioned above then he may file replication. In the meantime, if he wants to file replication he may file. [Underlining is mine] 4. -wise, against Defendant No, 5/Mortgagor, an "INTERIM DECREE" has also been passed vide order dated 22.12.2014. The relevant part of order dated 22.12.2014 reads as follows:-- "Moreover, the Defendant No, 5 has also filed a suit against the plaintiff being Suit No, B-38 of 2008, wherein which admitting her, liability to the extent of Rs, 18.2 million. Has demanded foreclosure of mortgage upon payment of the said amount. Meaning thereby, that the Defendant No, 5 admits her liability to the extent of Rs, 18.2, about which there is no doubt. There is no doubt with regard to the fact that as well the part of the sum claimed against the Defendant No, 5 by the plaintiff is disputed by her. Under Section 11(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 it is provided that if the Court is 6f the opinion on consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, that the dispute between the parties does not extend to the whole claim, or that part of the claim is either undisputed or is clearly due, it can, while granting leave with respect to the disputed amounts, can pass an interim decree in respect to the Financial Institutions (Recovery of Finances) Ordinance, 2001 is reproduced as under: "11. Interim Decree. (1) If the Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed, or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff." ' Thereto, I have come to the conclusion that admittedly the amount of Rs, 18.2 million is an admitted loan by the Defendant No, 5, for which I decree the suit against Defendant No, 5 in terms
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of Section 11 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 along with cost of funds accrued thereon upto-date, and Erant unconditional leave to defend the suit to the Defendant No, 5 in respect of disputed amount CMA No, 1606/2008 disposed of accordingly. " [Underlining is mine] 5. In the 'SUPPORTING AFFIDAVIT' of CMA No, 8617 of 2009, being an application under Order XXXVIII Rules 5 & 6, CPC r/w Section 151, CPC, it has been averred that the Defendant No, 6 is intending to 'dispose off' the 'subject property' purportedly with an intent to obstruct or delay the execution of the decree that may be likely passed against the Defendant No, 6 amongst others in the present suit. According to the Plaintiff's version, the 'subject property' was earlier mortgaged with the Plaintiff Bank in the sum of Rs, 65 million against Finance Facilities, granted to and availed by Defendant No, 6 herein in its' capacity as a 'PRINCIPAL CUSTOMER' of Plaintiff Bank. In this suit the Defendant No, 6 has, however, been joined in its' alleged capacity as a GUARANTOR and not as a 'MORTGAGOR'. 6. Upon failure of Defendant No, 6 to pay the claimed outstanding amount, the Plaintiff Bank resultantly was compelled to file Suit No, B-81 of 2009 [Bank Alfalah Ltd., Karachi v. Mls. Interglobe Commerce (Pakistan) Private Ltd.] against Defendant No, 6 in its capacity is a 'PRINCIPAL CUSTOMER' and others in Banking Court-III, at Karachi. Upon service, the Defendant No, 6 herein amongst others, filed their 'LEAVE-TO-DEFEND APPLICATION'[s] wherein not only, the liability was admitted but upon payment thereof, redemption of the 'SUBJECT PROPERTY' herein was also sought. According to the Plaintiff Bank's version and as per 'VALUATION REPORT' dated 16.02.2009 of M/s. Sadruddin Associates, the market value of the 'subject property' is Rs, 135,424,724/-. According to the Plaintiff Bank's stand, the Defendant No, 6 herein is in a 'drill' to 'dispose off the aforesaid property upon releasing the 'ORIGINAL TITLE DOCUMENTS' and thereafter, by transferring the same in favour of a third party viz. SZABIST-THE APPLICANT/PROPOSED INTERVENOR herein. According to the Plaintiff Bank if, the 'subject property' is 'disposed off' 'sold out' then the Plaintiff Bank as Decree- holders against Defendant No, 1 [principal customer] and Defendant No, 5 [Mortgagor] would be not able to get the satisfaction of the 3RD DECREE which is likely to be passed in the instant Suit No, B-0 1/2008 against the Defendant No, 6 in its' CAPACITY AS GUARANTOR amongst others Guarantors. The Plaintiff Bank as per [Bank's version will be left with no 'sufficient security' rather will be deprived of the fruit of the 3RD DECREE which is likely expected to be passed in the instant suit, indeed, after recording of the evidence. For ready reference the relevant part of the LEAVE GRANTING ORDER dated 20.04.2009. Whereby, Defendants No, 2, 3,'4 and 6 were granted 'UN- CONDITIONAL LEAVE TO DEFEND THE SUIT' reads as follows: "For the reasons discussed above, keeping in mind the above cited judgment objections raised by the defendant in both suits. I am of the considered view that the Defendants No, 2, 3, 4 and 6 in Suit No, B-112008 and Defendant No, 1 in Suit No, B-38 2008 have made out a rima acie case or rant o unconditional leave as the object received require detailed investigation through recording of evidence. Consequently, the leave to defend is granted to die Defendants No, 2, 3, 4, & 6 in Suit No, B-112008 and in Suit No, B-3812008 to the Defendant No, 1 for adjudication of both suits on merits. Leave to defend application in both suits are treated as written statement and parties are directed to file their propose issues for the purpose of determination of the points of law and facts involved in the matter." [Emphasis Supplied' 7. Upon service of the present application under Order VIII Rules 5 & 6 r/w Section 151, CPC [CMA No, 8617/2009]. a detailed 'COUNTER-AFFIDAVIT' was filed by the Defendant No, 6 herein, in answer to the aforesaid application under Section 38 Rules 5&6, CPC r/w Section 151, CPC [CMA No, 8617/2009] wherein, almost all the averments/assertions made by the Plaintiff Bank in the APPLICATION and its' SUPPORTING AFFIDAVIT', were vehemently denied as being false and incorrect.
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8. In the 'COUNTER AFFIDAVIT', it was specifically denied that the 'subject property' is liable to be attached before judgment. According to Defendant No, 6's stand, since the 'subject property', is neither mortgage nor otherwise, under any charge of the plaintiff's bank as such without having any interest in the 'Subject property' it cannot be attached merely at the whims of the Plaintiff Bank. Moreover, the 'subject property' is also not a 'subject matter' of the instant suit Bearing No, B- 01/2008 [Bank Alfalah Limited v. M/s. Callmate Telips Telecom Ltd. & others]. Per Defendant No, 6's stand, the 'subject property' is admittedly belonging to a PRIVATE LIMITED COMPANY i.e, M/s. INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD. Who has been impleaded in the instant suit in its' capacity as a GUARANTOR on the basis of alleged 'CORPORATE GUARANTEE' which however, besides being disputed has been seriously challenged by Defendant No, 6 in the instant suit. The Defendant No, 6 amongst other GUARANTORS, obviously on account of a genuine and ex-facie case viz-a-viz the alleged "Corporate Guarantee', has already been granted 'UNCONDITIONAL LEAVE TO DEFEND THE SUIT' vide order dated 20-04-2009 passed in the present suit. In the aforesaid "LEAVE GRANTING ORDER', it has been expressly observed/noted down that a CORPORATE GUARANTEE without a RESOLUTION OF BOARD OF DIRECTORS [In. Short BoD] is of no legal value and/or of any binding effect. The 'UNCONDITIONAL LEAVE TO DEFEND THE SUIT' already granted in favour of the Defendant No, 6 amongst others [i.e, Defendants No, 2. 3 & 4] in this suit renders the so-called likelihood of passing of any decree very much doubtful. The Defendants No, 2, 3, 4 and 6 in Suit No, B-1/2008 have undisputedly, made out a PRIMA FACIE CASE for grant of unconditional leave to defend the suit, which per leave granting order requires detailed investigations through recording of evidence. Admittedly, the leave to defend has already been granted to the Defendants No, 2, 3, 4, & 6 in Suit No, B-1/2008 and in Suit No, B-38/2008 to the Defendant No, 1 for adjudication of both suits on merits. LEAVE "TO DEFEND APPLICATION in both the suits have also been treated as WRITTEN STATEMENT[s] and parties herein have also been directed to file their "PROPOSE ISSUES' for the purpose of determination of the 'serious dispute' involved in the matter[s]. Needless to say, 'proposed issues' are yet to be settled in the suit[s]. 9. Per Defendant No, 6's assertions, it never stood as a guarantor of the amount against the 'principal customer' viz. M/s. Callmate Telips Telecom Limited. The so-called guarantee allegedly been executed by the Defendant No, 6 is, no doubt, under a SERIOUS DISPUTE between the concerned parties and regarding such a dispute, unconditional leave to defend the suit, has already been granted to the Defendant No, 6 amongst others Guarantors/ Defendants No, 2, 3 & 4 interalia on the plea that the guarantee[s] is/are inchoate, not valid and 'prima facie' fabricated document[s] which per leave granting order requires evidence in its' proof. Of course; in a sufficient manner. Needless to say, against Defendants Nos. 1 & 5/Mortgagors a 'FINAL DECREE' and an 'INTERIM DECREE' IN TERMS OF SECTIONS 17 & 11 OF FIO, 2001 respectively, have also been passed. 10. As far as passing of exparte 'FINAL DECREE' against Defendant No, 1 herein is concerned, per Defendant No, 6's version, it does nothing with the answering Defendant No, 6. Like-wise, the contention of the plaintiff bank that the `exparte decree' passed against the 'principle customer' Defendant No, 1, is bound to remain unsatisfied perhaps for and on account of 'insufficient securities', is concerned, the same besides premature and afterthought is a matter between the PLAINTIFF BANK and DEFENDANT NO. 1. Per Defendant No, 6's stand if, the securities are insufficient, as alleged by the Bank, then the bank at the most may go forward and initiate appropriate action if, the Plaintiff Bank so desires against the concerned officers and/or its' valuators and all other concerned, if any, who have taken insufficient securities as alleged from Defendant No, 1 [principal customer] for advancing the subject finance facility[ies]. In any event, it is for the Plaintiff Bank to decide what action needs to be initiated. Nevertheless, according to Plaintiff Bank's stand and as reveals from the available record, the securities against which facilities were advanced are QUITE SUFFICIENT.
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11. No doubt, the 'subject property' was admittedly mortgaged for and in respect of another FINANCE FACILITY in the sum of PKR.25,320,154.98/- regarding which facility, the plaintiff bank had earlier filed Suit No, 81/2009 [Bank Alfalah Ltd., Karachi v. Mls. Interglobe Commerce (Pakistan) Private Ltd.] against the Defendant No, 6 amongst others. In the aforesaid suit, application for leave to defend and another application under Section 60 of the transfer of the property Act, 1882 [VI of 18821 was filed by the principal customer [Defendant No, 6 herein land upon hearing, the Banking Court III, Karachi, nonetheless, passed a decree inter alia FOR REDEMPTION OF THE SUBJECT PROPERTY. By paying the `decretal amount' now against the 'subject property', nothing remains outstanding. Moreover, redemption of the 'subject property' upon receipt of the decretal in the sum of Rs, 25,320,154/98 by the Plaintiff Bank was also ordered by Banking Court No, III, Karachi, on 25-08- 2009. The relevant part of the order dated August 25. 2009 reads as follows: "... It is also directed that the mortgaged property of the Defendant be redeemed upon receipt of the decretal amount and thereupon property documents he deposited with Nazir of this Court for tis' delivery to the Defendant/Mortgagor. " [Underlining is mine] 12. The Plaintiff Bank, however, feeling aggrieved by the aforesaid order dated 25th August, 2009, preferred 1st Appeal No, 45 of 2009, in the High Court of Sindh at Karachi. In the aforesaid 1st appeal, the only grievance of the Plaintiff Bank, it appears, was to the effect that Banking Court No, III. Karachi, instead of passing a 'MORTGAGE DECREE' has passed a 'MONEY DECREE' with direction to the Plaintiff Bank to deposit the 'TITLE DOCUMENTS' with Nazir of the Banking Court-III at Karachi for its' `REDEMPTION'/'DELIVERY OF DOCUMENTS' to the Defendant No, 6 herein who was 'principal customer' and 'mortgagor' in Banking Suit No, 81 of 2009 [Bank Al-Falah Ltd. v. M/s. Interglobe Commerce [Pakistan] Private Ltd.], who in the instant suit has been joined in its' alleged capacity as a Corporate Guarantor Defendant No, 6]. The relevant 'operative part' of the Division Bench's Order dated 06.04.2004, passed in 1st Appeal No, 45 of 2009, reads as follows: "We would, therefore, allow this appeal and would accordingly delete the last four lines from the last para of the impugned order, beginning with the words "It is". We may, however, observe that it hardly needs mention that the Respondent No, 1, the mortgagor shall be in his right to seek redemption of the mortgage property upon liquidating their liabilities towards appellants bank in terms of the Supplemental Memorandum confirming deposit of title deeds (Annexure B/4 to the Appeal) . "[Underlining is mine] 13. Per assertions of the Defendant No, 6 herein there exists no any ingredients of Order XXXVIII Rules 5 & 6 on the basis whereof, an attachment order before judgment can be passed. By twisting the facts, the Plaintiff Bank however, is not entitled to obtain an order TOR ATTACHMENT BEFORE THE JUDGMENT' of the 'subject property' which is belonging to Defendant No, 5 herein who admittedly is not a MORTGAGOR of the finance facility[ies] granted to and availed by Defendant No, 1' Company. It is significant to note against Defendant No, 1 [Principal Customer] and Defendant No, 5. The Plaintiff have already obtained 'TWO DECREES' inter alia for sale of the mortgaged properties/hypothecated/charged fixed assets/goods etc. Etc. 14. In response to the detailed' 'COUNTER-AFFIDAVIT' of Defendant No, 6 i.e, in rebuttal of the averments of the application under Order XV(VIII Rules 5&6 and its' supporting affidavit [CMA No, 8617 of 2009], Plaintiff Bank, in its' own wisdom. Did not file any `AFFIDAVIMN-REJOINDER' despite passing of Order dated 12.10.2010. The contents of COUNTER AFFIDAVIT OF DEFENDANT NO.6 as such have gone un-rebutted and unchallenged. Order dated 12-10-2010 reads as follows: "Case was kept for hearing of CMA No, 8617/2009 filed by the, plaintiff. At the very outset, Mr. Lakhani request for time to file certain documents, he may do so in the shape of rejoinder and the counsel for defendant wants to file an application on behalf of his client, he is at liberty to do so at the Branch. "[Underlining is mine]
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16. Lastly, on 05.08.2015, when the above case came-up before me then I heard Mr. Abdul Sattar Lakhani. Learned counsel for the Plaintiff Bank and Mr. Zeeshan Abdullah, learned counsel for Defendant No, 6 at length and also gone through and perused the available record with the valuable assistance of the learned co,unsel for the parties/all concerned. 16. Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank -at the very outset made a reference to the earlier suit filed by the Plaintiff Bank against the 'principal customer Defendant No, 6 herein] amongst others bearing Suit No, 81 of 2009 [Bank Alfalah Karachi Ltd. v. M/s. Interglobe Commerce (Pakistan) Private Ltd. & ors] and forcefully submitted that the Banking Count No, III, Karachi, while, disposing of LEAVE-TO-DEFEND APPLICATION' under Section 10 of FIO, 2001 r/w S. 151, CPC and application u/S. 60 of the Transfer of Property Act, 1882 for 'REDEMPTION OF THE MORTGAGED PROPERTY', filed by the Defendants including the Defendant No, 6 herein, passed an order dated 25.08.2009 inter alia to the effect as follows: "... I have in my consideration that on unequal admission to pay back the outstanding amount within three month. No case for grant of leave to defend is made out in favour of Defendants, hence the application of Defendants for leave to defend is refused, however, the application moved Under Section 60 of Transfer of Property Act by, the Defendants will take effect upon payment of outstanding amount by the Defendants in accordance with law. In such circumstances with the refusal of leave to the Defendants the grounds for accepting the Plaintiff's Suit emerges in accordance Under Section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001, therefore, it is ordered that the Defendants are jointly and severally liable to pay Rs, 25.320,154/98 with future cost of funds at the present rate prescribed by the State Bank of Pakistan from the date of default i.e, 22-10-2008 till realization alongwith the cost of the suit. It is also directed that the mortgaged property of the Defendant be redeem upon receipt of decretal amount and thereupon property documents be deposited with the Nazir of this Court for its delivery to the Defendants/Mortgagor. " [Emphasis supplied] 17. According to Mr. Lakhani. Learned counsel for the Plaintiff, the Plaintiff Bank thereupon feeling aggrieved with the aforesaid order and decree dated 25.08.2009 passed by Banking Court No, III, Karachi in Suit No, 81 of 2009 [Bank Alfalah Ltd. v. MIs. Interglobe Commerce (Pakistan) Private Ltd.], the Plaintiff Bank consequently, filed 1St Appeal No, 45 of 2009 under Section 22 of FIO, 2001 [Bank Al-Falah Ltd. v. M/s. Interglobe Commerce (Pakistan) Private Ltd. & 4 others] in this Hon'ble Court. The above-said 1" Appeal, when came-up before the Hon'ble Division Bench of his Court on 06.04.20 10, then the following order was passed: "We would, therefore, allow this appeal and would accordingly delete the last four lines from the last para of the impugned order, beginning with the words "It is". We .May, however, observe that it hardly needs mention that the Respondent No, 1, the mortgagor shall be in his right to seek redemption of the mortgage property upon liquidating their liabilities towards appellants bank in terms of the Supplemental Memorandum confirming deposit of title deeds (Annexure B/4 to the Appeal). "[Underlining is minel 18. Per Mr. Lakhani, subsequently, vide order dated 24.12.2012, the Banking Court No, III, Karachi, while, "disposing off the two connected applications filed by Judgment-debtors in Suit No, 81 of 2009 under Section 10 of FIO, 2001 [Bank Alfalah Ltd. v. M/s. Interglobe Commerce (Pakistan) Private Ltd.] and under Section 60 of Transfer of Property Act, 1882 r/w Section 151, CPC and Section 19(2) of FIO, 2001 r/w Section 47(1), CPC filed by Defendant No, 6 herein, reached the conclusion in the words as follows: "62. In the result, Decree-holder/bank is directed to deliver up original documents of mortgaged property Bearing No, 99 CF-115, Clifton, Karachi to defendants /Judgment Debtors or their attorney The Decree holder/bank shall be entitled to withdraw the amount already deposited in Court through Pay Order No, 2148335 dated: 11-06-2010 and also upto date cost of funds, for which
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defendants/Judgments Debtors are directed to deposit the same through Pay Order within 20 days. However documents of mortgaged property would be first delivered to clefendants/Judgment Debtors by Decree Holder. " [Underlining is mine] 19. The Plaintiff Bank, per Mr. Abdul Sattar Lakhani, once again feeling aggrieved by order dated 24.12.2012 passed by Banking Court No, III, Karachi, filed another lst Appeal No, 12 of 2013 [BANK ALFALAH LTD. v. M/s. INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD.] before this Hon'ble Court which, 1st Appeal when came-up before the Division Bench of this Court on 12.12.2013, then the following order was passed: "In the circumstances, while holding that upon payment of the decretal amount the property in question stands redeemed but on account of grave apprehension shown by the appellants counsel that upon release of documents the Respondent No, 1 would sell the property in order to defeat the decree that may be passed in Suit No, B-1 of 2008, we direct the Banking Court not to release the documents of the mortgaged property till the application filed by the appellant bank in Banking .Suit…
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