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Petitioner: M.A. KAREEM IQBAL VS Respondent: HABIB BANK LIMITED Defendant
Court Name: Sindh High Court Judge(s): Khalid Ali Z. Qazi Title: M.A. KAREEM IQBAL vs HABIB BANK LIMITED Defendant Case No.: Suit No,190 of 2004 Date of Judgment:2008-12-03 Reported As: 2009 CLD 665 Result: Suit decreed
JUDGMENT
JUDGMENT ' KHLID ALI Z. QAZI, J.--- Plaintiff has filed this suit for recovery of damages against the defendant with the following prayer:- "In the abovementioned circumstances, it is, therefore, prayed that this Honourable Court may graciously be pleased to pass a judgment and decree against the defendant to pay to the plaintiff an amount of Rs,92,72,125 (Ninety Two Lacs Seventy Two Thousands, One Hundred and Twenty Five Only) on account of costs and damages with 20% mark-up from the date of institution till realization. ' Cost of the suit and any other order which this Honourable Court deems fit in the circumstances, is also solicited." 2. Brief facts of the case as stated in the memo. Of plaint are that the plaintiff is a former Federal Secretary, Ministry of Population Welfare, Government of Pakistan and retired on 6th February, 1987. After a brief assignment as consultant/USAID Advisor to Planning Commission and his assignment abroad as Management Advisor to ICOMP (International Council for Management of Population Programs, Kula Lumpur, Malaysia) a quasi UN Organization from August, 1987 to August, 1989, the plaintiff returned to Pakistan. The plaintiff is working as a Member Sindh Local Government Commission as member technocrat. 2A. It is further stated in the memo. Of plaint that the plaintiff rose to the highest post in the Civil Service of Pakistan and participated in many international conferences and is also a Member, International Advisory Committee, Asian Urban Information Center of Japan (Kobe) an international organization sponsored jointly by UNFRA and Government of Japan.. The plaintiff has been awarded coronation Medal by the British Government in 1953, Tamgha-e-Pakistan (T.Pk.) by
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the Government of Pakistan in 1964 as Directing Staff, National Defence College. He was an Honorary Senator, State of Louisiana, U.S.A. In 1975 and is a member of "Foundation for Research on Development and Security" "Friends", Karachi Chapter, National Geographic Society of U.S.A. And Management Association of Pakistan. It is also claimed that the plaintiff has been leader, Pakistan's delegation to ESCAP, Thailand in January, 1987, Leader Pakistan's delegation to Costa Rica, 6th Biennial Conference May, 1986, Deputy Leader, Pakistan's delegation to international Conference on Population Mexico 1984, Leader Pakistan's delegation to the International Conference on Population, New York, U.S.A. March, 1984, Leader Pakistan's delegation to the 3rd ESCAP Conference on Population Bangkok August, 1983, Member Pakistan's delegation to Saudia Arabia lead by Prime Minister of Pakistan in September, 1975, Member Pakistan's delegation to Uganda in August, 1974, Member of Pakistan's delegation to , China in August, 1974, Leader of Pakistan's Manpower delegation to Persian Gulf States in September, 1973, and Pakistan's delegate to FAO Regional Conference for Asia and Far East, Bangkok Thailand in 1968. It is further stated that the plaintiff right from the beginning of his carrier, he held various important appointments and has served the nation selflessly. The plaintiff in his carrier has also undertaken various assignments as a consultant to the Planning Commission, World Bank (on Social Action Program) and International Agencies; including Asian Urban .Information < Center of Kobe (Japan), Royal Embassy of Netherlands (Islamabad), World Bank, USA1D , UNIDO, UNFPA, ODA, Asian Development Bank etc. Besides the above appointments, the plaintiff is also author of many research papers on Population Welfare and Human Resource Development, therefore, on account of his aforementioned activities and services in nationally and internationally known amongst intellectual circles. 3. Further case of the plaintiff is that in or about 1990, after his return from his assignment in Kula Lumpur, Malaysia, one Syed Shujaat Hussain Zaidi, son of Syed Liaquat Hussain Zaidi, and Mrs. Shahnaz Hussain, wife of Syed Shaujaat Hussain Zaidi approached the plaintiff for patronizing MSJ Research Institute, an NGO meant for social welfare service, in attainment of its objectives. The said husband and wife requested the plaintiff to voluntarily act as Honorary President of the aforesaid NGO. The plaintiff was having a retired life, therefore accepted to act as Honorary President of the aforesaid NGO. No salary or remuneration whatsoever was payable by the NGO to the plaintiff, nor any such salary or remuneration was at all claimed by or paid to the plaintiff or acting as Honorary President. The plaintiff found that neither any meeting of General Body or Executive Committee of the Agency was at all convened or held, nor any resolution of any nature was at all passed for holding elections of office bearers, nor any annual report was prepared and submitted to the concerned authorities thus, in fact, the plaintiff has never been Honorary President of MSJ, even though so called. The said husband and wife were the only two persons found to be managing, looking after and carrying out day to day affairs of the NGO, calling themselves General Secretary and Treasurer, without being formally elected as such. The office premises and its fitting and fixtures and other assets of the NGO were in custody of the husband and wife. Since about 1997, the plaintiff found such premises locked and on inquiry, learnt that the said husband and wife were not opening the office premises and that they were also not residing at their last known residential address. 4. On 11-7-2001 the defendant through its counsel, issued a legal notice to the plaintiff as well as to Syed Shujaat Hussain Zaidi, Ms. Shahnaz Hussain and the so called NGO MSJ Research Institute, threatening therein that in case the plaintiff failed to make payment of Rs,7,03,482 to the defendant within three days, recovery proceedings will be initiated against the plaintiff. The plaintiff was chocked to receive such legal notice as he has not availed any running finance nor had opened or maintained any account whatsoever A/C No,360-96 was opened by Syed Shujaat Zaidi and one Ms. Shahmim. Kazmi in their capacity as Executive Director and Managing Director of a Company
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incorporated under the Companies Ordinance, 1984 and located at 7/2, Block-D, PECHS, in 1982 when the plaintiff was nowhere in the picture. The plaintiff had not signed any document relating to the loan; therefore he was neither a "customer" nor "borrower" as defined in Financial Institutions (Recovery of Finances) Ordinance, 2001. Therefore, the plaintiff through his counsel replied to the said legal notice and vehemently denied the claim of the defendant i,e, Habib Bank Limited, and advised the defendant to refrain from initiating any fake, fabricated and frivolous litigation failing which the same shall' be contested at the defendant's costs. In spite of above categorically denial of the Defendant's claim, in September, 2001, the plaintiff received a summon through a Bailiff, of Suit No,258 of 2001 from the Banking Court No,III at Karachi filed by the defendant against the plaintiff, as well as the aforesaid Shujjat Hussain Zaidi and Shahnaz Hussain and the so-called NGO, MSJ Research Institute, for recovery of Rs,844,179.42. It is stated that this Court may be pleased to hold/declare that the plaintiff, who is a senior and highly decorated civil servant and had held prestigious assignments in the country and abroad and enjoys highest reputation for his integrity, has been unlawfully and maliciously sued and harassed by the defendant for his no fault. The plaintiff has incurred an amount of Rs,2,72,125 on account of costs and legal fee(s) paid to Advocates for successfully contesting the frivolous law suit at various Courts of law over many years, filed by the defendant notwithstanding the denial of any liability by the plaintiff. Defendant is therefore liable to pay an amount of Rs,2,72,125 to the plaintiff. The plaintiff has suffered immense legal injury for contesting the false and frivolous law suit filed by the defendant, despite the fact that the plaintiff had denied all liabilities as "customer" or "borrower" or "guarantor", and defendant was advised to refrain from initiating any false and frivolous litigation. Defendant is therefore, liable to pay an amount of Rs,3 million to the plaintiff on account of damages for wrongfully suing and falsely and maliciously prosecuting the plaintiff in addition to the costs incurred by the plaintiff. 5. Further case of the plaintiff is that he was wrongly and illegally defamed by the defendant, as the defendant, when filing the false and frivolous suit against the plaintiff, it gave rise to the publication of summons in the newspaper, which caused severe damage to the reputation of the plaintiff in the eyes of general public and international agencies in Pakistan and abroad and inflicted legal injury to the plaintiff. The defendant therefore, is liable to pay an amount of Rs,3 Million to the plaintiff on account of damages, to make good of legal damage caused to the reputation of plaintiff by defaming the plaintiff through publication of the summons in the newspapers. The plaintiff shocked to receive Legal Notice (Annexure P/1) a second Legal Notice, wherein he was threatened with proceedings in NAB, summons from the Banking Court. No,III (Annexure P/3), and publication in newspaper (Annexures P/5 and P/6) and the plaintiff had to take various steps to successfully contest the suit to avert any decree that might be passed against the plaintiff in a lawful suit filed by the defendant without any legal justification. The plaintiff, while taking all the steps required to safeguard his reputation, and legal rights, put on stake by the defendant's false and frivolous lawsuit, went through severe mental torture and anguish that resulted in deterioration in plaintiffs health causing thereby legal, injury to the plaintiff. The defendant therefore is liable to pay an amount of Rs,3 Million (Three Millions) to the plaintiff to make good this damage caused by false and frivolous suit filed by the defendant. 6. After service of summons, the defendant filed its written statement and denied the allegations levelled against it. It is stated that M.S.J. Research Institute is a registered society as NGO with the Government of Pakistan and principle borrower, but does not seem to be legal entity. The name of the plaintiff appears as the President of Institute whereas Syed Shujaat Hussain Zaidi and Mrs. Shahnaz Hussain Zaidi were guarantors or being office bearers and real beneficiaries along with the plaintiff of the Finance extended by the defendant. Facilities were granted to this Institute, which were utilized by them from the account maintained with the defendant's Sindh Secretariat Branch, Karachi. It is stated that defendant knows M.S.J. Research Institute is not a company incorporated
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under the Companies Ordinance, 1984. Loans were obtained by the Institute of which plaintiff was the President. The legal notice was received from the plaintiffs counsel. As far as plaintiff was or was not a customer or borrower, same was to be decided by the Court. It was to be decided by the Court whether or not the plaintiff is liable to pay the defendant's dues. The plaintiff never denied the existence of the outstanding of the defendant against the above said Institute. The defendant filed the suit as mentioned in para 11 of the plaint. It is stated that the publication of summons in the newspaper is mandatory requirement under Financial Institution (Recovery of Finances) Ordinance, 2001. It is correct that replication was filed by the defendant as plaintiff in the said suit and although the present plaintiff was not entitled to file any reply to the replication yet it filed the same. Whether or not the above institute ceased to exist legally was and is not known to this defendant and the plaintiff must be knowing it, having personal knowledge about the same as he was President of it. It is correct that the said institute had not filed any application for leave to defend the suit. 7. It is also stated that the plaintiff filed the Constitutional Petition but since the same was not legally maintainable, it was rightly dismissed. The plaintiff also filed High Court Appeal and the same was decided in favour of plaintiff. It is submitted that photocopies of the documents are in possession of the defendant to show that the plaintiff had consented to and was the President of the Institute. The loan was utilized from the account maintained by the institute. It is denied that there was any element of maliciousness on the part of the defendant in joining the plaintiff as a defendant in the case. It is denied that the plaintiff was joined as a defendant in the suit only to defame or malign him or that the same joinder was false. The defendant had never had any enmity with the plaintiff. The plaintiffs name was included as he was shown as President of the Institute. The allegation of preconceived mis-joinder is also denied. It is denied that the entire claim of the defendant is void ab initio and illegal. It is denied that the plaintiff was sued in the suit maliciously or for the purposes of harassment. It is denied that the plaintiff has incurred the amount of Rs,272,125 as expenses and legal fee to defend the suit and the defendant is not liable to re-imburse his amount to the plaintiff. It is denied that the defendant's suit was false or frivolous and that the defendant is liable to pay Rs,3 Million or any other amount to the plaintiff as claimed by the plaintiff. It is further denied that there was any element of defamation on the part of the defendant and that the suit was false or frivolous. It is denied that any damage has been caused to the reputation of the plaintiff, as the plaintiff has not disclosed international agency in whose eyes his reputation is allegedly damaged. It is denied that the defendant is liable to the plaintiff for the amount claimed in para 25 of the plaint. It is also denied that filing of the suit resulted in deterioration in plaintiffs health. The defendant has legal justification in filing of the suit as the plaintiff was shown as President of the Institute. The question was to be decided by the Court whether or not the plaintiff was liable to pay the defendant's dues. It is denied that defendant is liable to pay any amount as claimed in para 26 of the plaint. 8. Out of the pleadings of the parties, the following issues were framed on 7-3-2005:- 11) Whether defendant had any legal cause to file Suit No,258 of 2001 in the Banking Court No,3 at Karachi against the plaintiff? (2) Whether defendant by filing the above suit and consequent publication in the newspapers, has defamed the plaintiff? (3) Whether plaintiff has incurred an amount of Rs,2,72,125 to defend the Suit No,258 of 2001 and subsequent proceedings? (4) Whether the defendant is liable to pay any damages to the plaintiff on any account, if so, to what effect? (5) What should the decree be?"
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9. After framing of issues, Commissioner was appointed for recording of evidence in the matter. The plaintiff examined himself as P.W.1 and produced documents as Exhs.P/1/1 to P/1/32. He was also cross-examined by Mr. Mansoorul Arfin, Advocate for the defendant. On 21-8-2007 learned counsel for defendant closed his side and states that he does not want to lead any further evidence. 10. I have heard Mr. Zaheer H. Minhas, learned counsel for the plaintiff and Mr. Mansoorul Arfin, learned counsel for the defendant and perused the material available on record. Since all the issues are inter-connected, therefore on all the issues my findings and reasons are as under:-- 11. Before touching upon the merits of the case, it shall be first convenient to decide the preliminary objection raised by Mr. Mansoorul Arfin learned counsel for the defendant. He A contended that the plaintiff has sued the defendant for damages, as according to the plaintiff his reputation has been damaged owing to the publication of summons in a banking suit filed by the defendant and since the plaintiff during his cross-examination has admitted the fact that impugned publication was made on 18-9-2001 and notice in this regard was sent by the plaintiff to the defendant Bank on 11- 7-2001, it has thus clearly come on record that plaintiff suit is barred by limitation and liable to be dismissed as time-barred. 12. In my opinion, the cause of action as pleaded by the plaintiff in para. 27 of the plaint are based on issuance of legal notice by the defendant on 11-7-2001, then issuance of summons by Banking Court in or about September, 2001 and finally on 23-12-2003 when this Court allowed 1st Appeal No,45 of 2003 Exh.P/1-23. 13. Article 23 of the First Schedule of Limitation Act, provides a period of one year for filing suit for compensation for malicious prosecution. The said Article reads as under:-- Description of Suit Period of Limitation Time from which period begins to run 23. For compensation for a malicious prosecution{One year} When the plaintiff is acquitted, or the prosecution is otherwise terminated. ' In this case admittedly, plaintiff's 1st appeal was allowed on 23-12-2003 and the Division Bench of this Court modified the judgment and decree passed by Banking Court No,III Karachi to the extent that plaintiff is not liable to pay any amount to the defendant and consequently the judgment and decree to the extent of liability against plaintiff/appellant was set aside, and no appeal against the said order has been filed by the defendant and order dated 23-12-2003 attains finality. The period of one year starts from 23-12-2003. The suit was filed on 27-2-2004 within one year period prescribed in the above Article. As such preliminary objection of the defendant is hereby rejected. 14. The plaintiff appeared in Court as his own witness and produced documents as Exhs.P-1/1 to P- 1/25 in examination in-chief and Exhs.P.W.1/26 to P.W.1/32 in cross-examination. On oath he repeated the entire facts as mentioned in early part of the judgment. He reiterated that in Suit No,258 of 2001 he was impleaded as co-defendant before Banking Court No,III Karachi. He did file written statement therein and denies the liability of payment of any amount to the defendant and also filed application for leave to defend in the said suit, which was dismissed by the learned Banking Court. He preferred an appeal against the said order before this Court, which was dismissed being premature (Exh.P-1/21). After the passing of judgment and decree (Exh.P-1/22) against the plaintiff again he filed First Appeal No,45 of 2003 (Exh.P.W.1/32), which appeal was allowed (Exh.P-1/24 and Exh.P-1/25) and decree against him was reversed and his name was also deleted from the array of the judgment-debtors. He claims damages against the defendant for dragging him before the Banking Court as well as before High Court and on account of their filing suit against him, he suffered from 2001 till 2006. He further depose on oath that in addition to the
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mental agony had also incurred heavy expenses to defend himself in Suit No,258 of 2001 against which he filed a Petition Bearing No,D-720 of 2002 and then filed 1st Appeal No,45 of 2003. He has to pay a sum of Rs,3,25,000 during past five years with the break-up which has been recorded in his examination in chief. He produced the counter foils of the cheque books through which payments were made as Exhs.P-1/6 to P-1/11. He also produced the receipt of Rs,50,000 issued by Mr. K.M.A. Samdani (Exh.P-1/12) in connection with the fee which he has taken for preferring C.P.No,D-720 of 2002. He also produced the receipt issued by Syed Hamid Ali Shah for the amount of Rs,50,000 (Exh.P-1/13) which was paid for conducting the appeal in this Court against judgment passed in Suit No,258 of 2001. Mr. Mansoorul Arfin objects to these two documents on the ground that the authors have not been examined. This objection was not decided and left for consideration at the time of hearing. In my opinion objection is valid. It may be observed that the plaintiff has failed to establish his claim to the extent of Rs,1,85,000 on account of payment of legal fee to the learned Advocates. 15. The above evidence of plaintiff could not be shaken in the cross-examination. In case of damages burden to prove that allegations or defamatory actions/statements were true, was on the defendant. Since no evidence was produced by the defendant, therefore written statement cannot be considered and the same has to be ignored. Reference is invited to the case of Farukh Saeed Khan v. Anisur Rehman Bhatti 2006 CLC 440. 16. The Pakistani jurisprudence on the subject is very rich while the case-law revolves round two areas i,e, firstly suit for recovery of amount as damages, defamation, mental torture and malicious prosecution in criminal action; and secondly malicious prosecution on civil action. In case of Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28, Honourable apex Court laid down the following principles qua granting or refusing damages with regard to malicious prosecution:-- (i) That the plaintiff was prosecuted by the defendant; (ii) That the prosecution ended in plaintiffs favour; (iii) That the defendant acted without* reasonable and probable cause; (iv) That the defendant was actuated by malice; (v) That the proceedings had interfered with the plaintiffs liberty and had also affected her reputation; and finally; (vi) That plaintiff had suffered damages. Reference may be invited to the following:- (a) Niaz and others v. Abdul Sattar and others PLD 2006 SC 432. In this case Honourable apex Court has been pleased to observe at Pages 439 and 440 placitum E to I which may be read as under:-- "It is well settled principle of law that a prosecution may not be entirely mala fide but the continuation of such prosecution after it was discovered that the facts upon which it was based are not true may give rise to claim for damages for malicious prosecution. This doctrine is based on the dictum of Cockburn, C.J. In Fetzjohn v. Mackinder 30 LJCP 257. It is also settled law that in suits for malicious prosecution proof of the existence of malice itself is not enough but should be accompanied by proof of absence of reasonable and probable cause. See as follows:-- (i) United Bank v. Raja Ghulam Hussain 1999 SCMR 343. (ii) Abdul Rauf v. Abdul Razaq and another PLD 1994 SC 476 (iii) Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 (iv) Raja Braja Sunder Deb v. Bandeb Das AIR 1944 PC 1 (v) Balbabddar Singh v. Badari Shah AIR 1926 PC 46 (vi) Abdul Shakoor v. Lipton AIR 1924 Lah.1 (vii) Noor Khan v. Fiwandas AIR 1927 Lah.120 (viii) V.T. Strinivasa Fhathachariar v. Thirunvendat Achariar AIR 1932 Mad. 601.
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' The maxim 'The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged with probably guilt of crime imputed. See (1881)8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. In Tempest v. Snowden (1952)1 K.B. 130. It is pertinent to mention here that judgments of both the Courts below are in consonance with the law laid down by this Court in the following judgments keeping in view the conduct of the petitioners:-- (i) Muhammad Bashir v. The State PLD 1982 SC 139 (ii) Muhammad Yousaf v. Syed Ghayyur Hussain Shah and others, 1993 SCMR 1185. ' By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, land, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution also guarantees the dignity of man and subject to law, the privacy of home. In the context of the Constitution, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court". It will in our opinion be more in consonance with the genesis of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of Court, but in the abuse in the process of law. For, if we bear in mind the…
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