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Petitioner: ASIF MOWJEE VS Respondent: ZAHEER ABBAS and others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: ASIF MOWJEE vs ZAHEER ABBAS and others Case No.: Judicial Miscellaneous No.31 along with Suit No.18 of 2012 Date of Judgment:2014-03-13 Reported As: 2015 CLC 877 Result: Order accordingly
Judgment ORDER AZIZ-UR-REHMAN, J.--- By means of this common order I intend to dispose of the Judicial Miscellaneous application under section 12(2), Civil Procedure Code bearing J.M. No.31 of 2012 [Asif Mowjee v. Zaheer Abbas and Bank Al-Habib Ltd.] as well as Nazir's Report dated 18-5-2013 filed in Suit No.18 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib]. 2. Through the instant J.M. No.31 of 2012 the applicant has challenged the 'consent order' dated 20- 6-2012 and 'decree' passed on 25-6-2012 in Suit No.18 of 2012 with a prayer that the same be set aside mainly on the grounds that the 'written statement', other 'applications', if any and 'Vakalatnama' of Applicant's counsel were obtained by respondent No.1, his uncles by putting him and his family under extreme duress and eminent threat of fear. MAIN APPLICATION UNDER SECTION 12(2), C.P.C. 3. The brief relevant facts for decision of the above application are as follows:-- 4. The aforesaid Suit No.18 of 2012, was filed by respondent No.1 [plaintiff-decree holder] against the applicant [defendant No.1-Judgment debtor] and Bank Al-Habib Ltd., [defendant No.2-Mortgagee Bank] for specific performance of sale agreement dated 12-8-2008 entered into between the applicant and respondent No.1 and for injunction against both the respondents herein. 5. Per averments, the applicant is the 'lawful owner' of 'Bungalow bearing No.7, measuring 771 sq.Yds, situated in Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi [hereinafter means 'subject property]. The total sale consideration of the 'subject property' as was mutually fixed is at Rs.3,70,00,000 [Rupees Three Crores and. Ninety Lacs only]. Out of which Rs.50,00,000 [Rupees Fifty Lacs only] were paid to the applicant in cash. Such payment was not only acknowledged in the sale agreement of 12th August, 2008 but also a separate receipt was signed
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and executed. Besides, possession of the 'subject property' was also handed over to the respondent No.1, upon signing and executing the possession letter dated 12-8-2008. 6. Per clause 1 of the aforesaid sale agreement, the balance sale consideration in the sum of Rs.3,40,00,000 [Rupees Three Crores and Forty Lacs only] was payable at the time of releasing of all the 'original documents' of the 'subject property' allegedly lying in the High Court of Sindh. Nevertheless, dispute arose between the parties to the Sale Agreement dated 12th August, 2008 and consequently Suit No.18 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] was filed in this court FOR SPECIFIC PERFORMANCE AND INJUNCTION sometime in the month of January, 2012. 7. On 6-1-2012, when the above Suit No.18 of 2012 came up before the Court, besides issuing of notice/summons, respondent No.2 Bank was restrained from dispossessing the respondent No.1 from the 'subject property' without due process of law. For ready reference order dated 6-1-2012 is reproduced as follows :--- 6-1-2012 Mirza Sarfraz Ahmed, Advocate for the Plaintiff. 1. Urgency granted. 2. Granted subject to all just exceptions. 3. The learned counsel for the plaintiff argued that vide agreement dated 12-8-2008, the defendant No.1 agreed to sell bungalow No.9 situated at Khayaban-e-Mujahid, Phase-V, DHA Karachi to the plaintiff in the total sale consideration of Rs. 3,90,00,000 out of which the plaintiff had paid Rs.50 Lacs to the defendant No.1 and remaining amount was to be paid at the time of clearance of all original documents lying in this Court in a case as surety. The learned counsel submits that it disclosed to the plaintiff that in fact the original documents were mortgaged with the defendant No.2 and not deposited in this Court as surety and now the defendant No.2 has already obtained the judgment against the defendant No.) and there is a likelihood that it will be auctioned. The learned counsel further submits that the property in question is in possession of plaintiff and he has pointed out annexure 'C' which is possession receipt issued by defendant No.1, whereby he handed over possession of property in question to the plaintiff .The learned counsel further submits that since the plaintiff is in possession, he is ready to pay outstanding amount to the bank directly in discharge of liability of defendant No.1, which is not more than Rs.21,441,099 according to the judgment dated 16-10-2010 passed by the banking court No.1 in suit No.1035 of 2008. Issue notice to the defendants. Meanwhile, the defendant No.2 shall not dispossess the plaintiff without due process of law. Adjourned to 12-1-2012." [Underlining is mine]. 8. Upon service, the Applicant filed his written statement. In the written statement almost all the averments/assertions made in the plaint were admitted i.e. The execution of sale agreement dated 28th August, 2008 in respect of the 'subject property'; the total sale consideration in the sum of Rs.3,90,00,000 [Rupees Three Crore and Ninety Lacs only]; the receipt of Rs.50,00,000 [Rupees Fifty Lacs only] as 'advance payment' from the respondent No..1 and the handing over 'possession' of the 'subject property' to respondent No. 1. In the 'written statement', however, it was loudly stated that the entire sale consideration has not been paid to the applicant within the period of 2 years as agreed between the parties to the sale agreement dated 28th August, 2008. 9. Per averments made in the 'written statement', the 'title documents' of the 'subject property' now stated to be lying with the 'mortgagee bank' [respondent No.2] can only be returned to him after making full payment of the outstanding amounts. Per averments, until and unless the balance sale consideration is paid by the respondent No.2 neither the 'title documents' could be released nor the 'subject property' transferred in favour of respondent No. 1. 10. In the written statement, it was also prayed that the respondent No.1 [plaintiff-decree holder] be directed to deposit the balance sale consideration of Rs.3,40,00,000 [Rupees Three Crores and
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Forty Lacs only] in court so that not only his 'bona fide is established but also outstanding amounts against and payable by the applicant is paid to the Mortgagee-Bank [respondent No.2]. 11. On 20-6-2012 when the said suit bearing No.18 of 2012 [Zaheer Abbas v. Asif Mowjee & Bank Al- Habib] came up before the court, with consent of all, the same was decreed in the following terms:- 1. The Plaintiff shall deposit balance sale consideration of Rs.34 million within 45 days hereof with the Nazir of this Court. 2. Once this amount is deposited the defendant No.2 shall place before the Nazir of this Court all the original title documents of the subject property. 3. Nazir shall release Rs.29,063,802 in favour of the defendant No.2 in full and final satisfaction of defendant No.2's claim whereafter the defendant No.2 shall be bound to execute redemption deed or other necessary documents to redeem the property. The defendant No.1 thereafter would execute conveyance deed in respect of the subject property in favour of the plaintiff and all such expenses of registering the conveyance deed shall be bound by the plaintiff whereafter balance amount shall be paid to the defendant No.l. 4. In case the defendant No.1 fails to execute conveyance deed, Nazir of this Court shall execute conveyance deed in favour of the plaintiff but in that case the defendant No.1 shall not be entitled for payment of remainder unless otherwise directed by the Court through further order. 5. In case the Plaintiff ails to deposit balance sale price within 45 days the suit shall stand dismissed. 50% of the token amount shall stand forfeited and 50% would be refunded to the plaintiff from the sale proceed as the defendant No.1 shall be at liberty to proceed with the decree in his favour in accordance with law. 6. Upon receipt of amount so suggested, the defendant No.2 shall withdraw the appeal and further record satisfaction of decree before Banking Court. 12. Upon passing of the 'consent decree' on 25-6-2012, the applicant promptly on 28-6-2012 filed the instant Judicial Miscellaneous Application under section 12(2), C.P.C. Bearing J.M. No.31 of 2012 with a prayer for setting aside of the 'consent order' dated 20-6-2012 and 'consent decree' passed on 26-5-2012 on the alleged pleas that the signatures on his 'written statement, 'application' and 'Vakalatnama' of his counsel has been obtained by respondent No.1, his uncles viz Ishaq Lashari and Ismail Lashari allegedly by putting the applicant and his children/family under 'extreme duress' and eminent fear of bringing harm to them. In the application under section 12(2), C.P.C., it was reiterated that the applicant as being owner of the 'subject property' has already mortgaged the same with the respondent No.2 against the financial facility availed by him and his wife. Further the 'subject property' has not yet been re-deemed inter alia due to various kinds of ' litigation. In this regard reference was also made to the following cases:--- (i) Suit No.771 of 2008 [Mst. Tehmina Asif wife of Asif Mowjee v. Province of Sindh and 10 others including Asif Mowjee] filed in this court by the wife of the applicant herein for seeking declaration, permanent/perpetual injunction and return of the documents of the subject property i.e. 'Bungalow bearing No.7, measuring 771 sq.Yds situated in Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi and cancellation of unwritten signed documents. (ii) Suit No.1201 of 2008 [Saleem Hussain son of Akber Ali v. Asif Mowjee son of Late Ashraf Mowjee, Mst. Tehmina Asif and Bank Al-Habib [respondent No.2 herein] for specific performance, redemption, declaration, cancellation, injunction and damages. Iii. Suit No.1628 of 2012 [Asif Mowjee v. Zaheer Abbas] for possession, mesne profit and permanent injunction. 13. Per assertion made in the application under section 12(2), C.P.C., Suit No.771 of 2008 mentioned at Sr.No.1 hereinabove was withdrawn unconditionally on 1-11-2011 by the wife of the Applicant [Mst. Tehmina Asif]. It is worth to mention herein that the Bank's Suit bearing No.1035 of 2008 [Bank Al- Habib v. Asif Mowjee and his wife Tehmina] for recovery of Rs.38,128,856.38 was decreed on 22-4-
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2008 but in the sum of Rs.2,14,41,077 [Rupees Two Crores Fourteen Lacs Forty One Thousand and Ninety Nine only] against the applicant and his wife jointly and severally with costs and cost of funds from the date of 'default' till realization of the decretal amount. Final decree for sale of the mortgaged property [subject property] was also allowed. 14. Apart from the above, reference has also been made to the following FIRs:--- i. FIR No.401 of 2011 lodged at P.S. Darakhshah by one Bilal Shaikh son of Jamal Shaikh against fraud and forgery committed by Asif Mowjee regarding and in respect of sale transaction of the subject property. Per FIR, the incident had taken place on 24-7-2011 at 5:00 PM. ii. FIR No.172 of 2012 lodged at P.S. Gizri by Mst. Tehmina wife of Asif Mowjee against one Ishaq Lashari and others for alleged attempt to keep the complainant in his car. Per FIR such incident had taken place on 4-6-2011 at 1430 hrs. 15. On the basis of the aforesaid pleas/grounds the instant Judicial Miscellaneous Application under section 12(2), C.P.C. Has been filed for setting aside the 'consent order' dated 20-6-2012 and 'consent decree' passed on 25-6-2012 in Suit No.18 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] with a prayer for setting aside the same. 16. On 27-6-2012, when the above Judicial Miscellaneous Application came up before the court the following order was passed:--- "29-6-2012 Mr. Jamshid Malik Advocate for the Applicant. I. Mr. Jamshid Malik, learned counsel for the applicant contends that the applicant was coerced to file written statement wherein he admitted to have sold the suit property to the plaintiff. He further contends that even the Applicant did not engage any counsel and the respondent No.1 obtained the signature of the applicant on the Vakalatnama by detaining his wife and children. It was further contended that the agreement which was sought to be enforced reflected that the applicant has handed over the possession of the suit property in 2008 whereas the Nazir's inspection conducted in another suit filed by the wife of the applicant reflects the possession of his wife in 2009. Per counsel the Applicant was forcefully dispossessed in January, 2012 after detaining him in connivance with police. The Applicant, therefore, seek setting aside of compromise decree dated 20-6-2012 for having obtained through fraud and misrepresentation. I am of the tentative view that such assertions do not fall within the ambit of section 12(2), C.P.C. As there is a difference between a document obtained by coercion which is made subject matter of the suit or fraud and misrepresentation committed on Court for obtaining a decree. However, since serious allegations have been levelled not only against the respondent No. 1/plaintiff but the counsel of the applicant as well, and to maintain a balance and in the interest of justice, let notice be issued to the respondents for 7-8-2012. Till then the Nazir shall not disburse any amount, if deposited by the plaintiff" [Underlining is mine]. 17. Upon service, the respondent No.1 [plaintiff-decree holder] filed his detailed 'counter-affidavit' in answer to the instant JM wherein all the allegations levelled against respondent No.1 were vehemently denied/controverted. Per respondent No.1' s contention 'consent order' dated 20-6- 2012 and 'consent decree' passed on 25-6-2012 beside valid are not liable to be set aside. Further, it was averred that order dated 20-6-2012 was knowingly dictated in 'open Court' in presence of the learned counsel for the parties in Suit No.18 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al- Habib] thus the question of any 'fraud' and/or misrepresentation' does not arise. The allegations that the signatures on 'written statement', 'other applications and/or 'vakalatnama' were obtained by respondent No.1, his uncles Ishaq Lashari, Ismail Lashari and Bilal Shaikh under 'duress' and imminent threats of 'harm' were vehemently refuted as being false, afterthought and fabricated. 18. The presentation of vakalatnama, filing of 'written statement' etc. Is always done in the office of the court. The 'written statement' amongst other documents were duly signed, of course, voluntarily
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before the 'oath commissioner' of High Court without any 'hue' and 'cry', and/or recording any protest whatsoever. The allegations of 'duress', 'pressure' and/or 'threat' after passing of the consent decree besides afterthought are incorrect and false. The allegations leveled in the application under section 12(2), C.P.C., per respondents' contentions, are. Nothing but an attempt to malign respondent No.1. Mr. Sajid Latif, Advocate, per his Vakalatnama is duly authorized to compromise the suit. Further the Applicant had/has not denied his signatures on the 'vakalatnama' and 'written statement' and applications, which no doubt, belies the applicant in his assertions. 19. The respondent No.2 [Mortgagee-Bank] has also filed a detailed 'counter-affidavit' in response to the application under section 12(2), C.P.C. Wherein all the allegations of applicant [defendant No.1-judgment debtor] have been seriously denied. Per 'counter-affidavit' of respondent No.2 the 'subject property' is duly mortgaged with the respondent No.2 bank and a final decree for sale of the 'subject property' has already been passed in favour of the bank in Suit No.1035 of 2008 [Bank Al-Habib Ltd. v. Asif Mowjee and Mrs. Tehmina wife of Asif Mowjee]. The said suit of Mortgagee-Bank has been decreed on 22-4-2010, of course, after dismissal of leave to defend application filed by applicant [viz. Asif Mowjee and his wife Mrs. Tehmina] on 16-10-2007. 20. Per respondent No.2's contention it is beyond comprehension that the 'written statement', filed on 24-1-2012 was if, under any 'duress' then why applicant waited till June, 2012 [i.e. Till the date of passing of the 'consent decree' on 25-6-2012]. According to respondent No.2 ['Mortgagee-Bank'] filing of the instant application under section 12(2), C.P.C. Is nothing but one of many afterthought attempts in series, indeed, with an aim to deprive the Bank of the benefit of its 'final decree' passed by Banking Court-I at Karachi in favour of the 'Mortgagee-Bank' on 22-4-2010. The financial facility granted to and availed by the applicant and his wife by securing the same through depositing title deeds of the 'subject property' with the 'Mortgagee-Bank' and the passing of a final decree on 22- 4-2010, it is important to note, has not been denied by the applicant. 21. The operative part of the judgment dated 16-2-2010 and 'final decree' passed on 22-4-2010 in Bank's Suit bearing No.1035 of 2008 [Bank Al-Habib Ltd v. Asif Mowjee and Mrs. Tehmina wife of Asif Mowjee] read as follows:--- "16-2-2010 I, therefore, decree the suit of the plaintiff in the sum of Rs.21,441,099 against the defendants jointly and severally with cost of funds as specified by the S.B.P. From the date of default till realization of decretal amount. Plaintiff's prayer clause (i) is allowed. The plaintiff shall also be entitled for cost of suit. "[Note: Prayer clause (i) is pertaining to passing of final decree for sale of the subject property. 22. On 26-6-2014, when above matter came up before me I heard Mr. Muhammad Jamshed Malik, learned counsel for the applicant [defendant No.1-judgment debtor], Mr. S. Ali Bin Adam Jafri, learned counsel for respondent No.1 [plaintiff-decree holder] and Mr. Khalid Mehmood Shah, learned counsel for respondent No.2 [defendant No.2- Mortgagee Bank] and with their valuable assistance also scanned the record available before me. 23. Mr. M. Jamshed Malik, learned counsel for the applicant forcefully urged that the application under section 12(2), C.P.C. Is maintainable as the filing of Suit No.18 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] was nothing but in fact was a sham attempt to attach validity to the agreement of sale as well as possession of 'subject property' obtained by respondent No.1 on 12-8- 2008. Such attempt on the part of the Respondent No.1, per learned counsel, -is amounting to 'fraud' committed upon the Court. Per learned counsel, in order to effectuate such sham attempt, the applicant was forced through 'extreme duress' and without his 'free consent' to execute the following documents:--- (a) Sale Agreement dated 12-8-2008.
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Filed in Suit No. 17 of 2012(b) Receipt dated 12-8- 2008.
(c) Possession Receipt dated 12-8-2008
(d) The 'written statement' amongst other document/applications
(e) Vakalatnama of Applicant's counsel viz. Mr. Sajid Latif
24. Per learned counsel, all the above events pertaining to filing of the Suit No.18 of 2012 [Zaheer Abbas v. A,sif Mowjee and Bank Al-Habib] thus fair within the scope of section 12(2), C.P.C. Mr. M. Jamshed Malik, learned counsel for applicant further contended that, no doubt, 'consent order' dated 20-6-2012 was dictated in 'open court' but the applicant's counsel viz. Mr. Sajid Latif was not present and it was his associate counsel viz. Mr. Muhammad Waseem who in fact was in attendance. Learned counsel further contended that actually the counsel was engaged by the applicant under 'duress' exerted by respondent No.1, his uncles to effectuate 'fraud' upon this court and to procure a decree in the aforesaid suit by misrepresentation. 25. Mr. M. Jamshed Malik, learned counsel for applicant while, arguing the case further submitted that if, this court comes to the conclusion that the order dated 20-6-2012 and decree passed on 25-6-2012 have not been obtained by playing any fraud then too, per learned counsel, Suit bearing No.18 of 2012 filed by respondent No.1 [for seeking specific performance and injunction] in terms of para 1 [typed page 3 of the decree] passed on 25-6-2012 be declared dismissed as the 'requisite amount' in the sum of Rs.3,40,00,000 [Rupees Three Crores and Forty Lacs only] has not been deposited within 45 days. Learned counsel for the Applicant in this regard also focused court's attention on Nazir's report dated 18-5-2013 [presented on 20-5-2013], wherein the deposit of 'requisite amount' was stated/shown on 6-8-2012. 26. In support of his contentions, Mr. Muhammad Jamshed Malik placed reliance on the following case laws:--- i. Dadabhoy Cement Industries Ltd. And 6 others v. National Development Finance Corporation Karachi [2002 SCMR 1861] wherein the Hon' be Supreme Court of Pakistan while, dilating upon. The allegations regarding procuring of consent decree by way of fraud, coercion, and misrepresentation observed as follows:--- "7. As far the allegations that the compromise, decree was obtained by fraud, coercion and misrepresentation, the petitioners failed to substantiate the same as no particulars or details thereof had been given in their application under section 12(2), C.P.C. And mere allegation not supported by any material, would not invariably warrant inquiry or investigation in each case. It is for the trial Court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it can dispense with the same and proceed to decide the application. So, it is not incumbent on the trial Court to frame issues in each and every case but it depends upon the facts and circumstances of each case. The argument that the respondent by adding further interest/mark-
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up on the amount on which interest/mark-up had already been paid, played fraud, has no substance, for, this fact was already in the knowledge of the petitioners as they had agreed to pay the same on rescheduling of the outstanding amount, which has been admitted by the petitioners I i their Suit No.416 of 1996, as such, they being the privy to the rescheduling of the loan, cannot turn around to say that further mark-up was fraudulently charged. It is settled law that where allegation of fraud is levelled, it must be specified and details thereof should be given. The contents of M.O.U. Were mutually agreed upon between the parties and there is nothing to suggest that he same as executed by raud misrepresentation or under duress or coercion. 8. As far the question of maintainability of the applications under section 12(2), C.P.C. Is concerned, it may be noted that consent decree was passed in pursuance of the compromise arrived at between the parties. The compromise decree was acted upon by the petitioners as they deposited four quarterly instalments as agreed upon in the compromise and thereafter they defaulted in payment of further instalments. Had the petitioners been aggrieved of consent decree, they would have challenged the same in appeal. Since, no appeal was filed against decree hence, it attained finality. It appears that the petitioners, in order to avoid payment of remaining instalments filed afterthought applications with mala fide intentions. The consent decree did not suffer from fraud, misrepresentation or want of jurisdiction, therefore, the same was not amenable to challenge under section 12(2), C.P.C. Thus the applications were not maintainable as none of the ingredients for challenging the validity of decree as contemplated in section 12(2), C.P.C. Was available to the petitioners. [Underlining is mine] . ii. Wazir Hussain v. Abdul Rehman through legal heirs and another [2002 YLR 1600] wherein it wag held as follows:--- "21. In the arena of civil Law, fraud also include improper means resorted to as a means to obtain a benefit or acquire a right which otherwise was not available to a person. The fraud is act of dishonesty which is inferable from the evidence on record and circumstances of the case. iii. Land Acquisition Collector Tarbella Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another [1776 MLD 1588] wherein 'fraud' was defined in juxtaposition of its dictionary meaning in the following words:--- "9. In order to set the main controversy stemming from the alleged fraud at rest it is necessary to ascertain the meanings of the expression 'fraud'. This expression has been defined in section 17 of the Contract Act but the definition having been made in a particular context is not exhaustive, therefore, its Dictionary meanings will serve the purpose and fill up…
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