ORDER CM. No. 299/B/2000 C.M. No. 308/B/2000 The plaintiff/Bank has filed a suit for the recovery of an amount of Rs. 72,612,516.00, against the defendants/respondents; respondent No. 1, is the principal debtor, whereas respondents No. 2 to 7, are stated to be the guarantors of the finance; the total amount of financing availed-by respondent No. 1, was Rs. 166.880 Million, out of which, it has already repaid an amount of Rs. 100 Million, it is, therefore, for the said reason that the suit amount, which perhaps also covers a portion of the mark up, is less than the amount of the finance.
2. At the time of the financing, the land, building, machinery, fixtures, stocks, etc. Belonging to the respondent No. 1 collectively referred to as "the project" was mortgaged/pledged/hypothecated with the plaintiff and the other respondents/defendants> stood as the guarantors, for the repayment of the finance, it is the case of the plaintiff- Bank that the suit amount being remaining part of the finance is still due. Hence this suit.
3. alongwith the suit, an application for the grant of interim relief (C.M. No. 299/B/2004), was moved followed by another application (C.M. No. 308/B/2004). in the first application, the relief regarding the appointment of the local commission for the preparation of inventory of the machinery, fixtures, stocks, etc. Was allowed and the request for attachment of the properties of the defendants has not been pressed by the plaintiffs counsel. The learned counsel for the applicant/plaintiff has confined to the reliefs that respondents No. 1, be restrained from alienating all those properties, which are mortgaged/pledged and hypothecated with the plaintiff and respondent No. 2 to 7, be restrained from enchasing two TDRs mentioned in the applications. Notices were issued to the respondents and as far as the restraint about the sale of the mortgaged/pledged properties/assets belonging to respondent No. 1, are concerned; I find that the applicant/plaintiff has a prima facie case, because admittedly, these properties, are the securities for the repayment of the finance, and thus if during the pendency of the suit, these are allowed to be alienated, the applicant shall be exposed to irreparable loss; the balance of convenience also lies in favour of the applicants and against respondent No. 1, therefore, respondent No. 1 is restrained from alienating the said properties in any manner whatsoever, without first obtaining the permission of this Court.
4. Regarding the relief claimed in the first application that respondents No. 2 to 4, who are the guarantors of the finance and have furnished their personal guarantees must also prevented to alienate their personal properties, suffice it to say that no detail of such properties have been furnished, therefore, the applicant/plaintiff cannot be clothed with the omnibus order, restraining the said respondents from transferring/alienating any of their properties/assets, therefore, to this extent, the relief claimed by the applicant is declined.
5. About the transfer/encashment of the TDRs, this has been the most contentious issues between the parties. The claim of the plaintiff is that the TDRs are under the lien of the bank for the repayment of the finance and if the respondents No. 4 to 7 during the pendency of the suit, are allowed to encash, the TDRs, the applicant shall be exposed to irreparable loss and balance of convenience also tilts in its favour, in reply to the above, it has been explained by respondents No. 2 to 7 that these TDRs do not belong to them, rather are owned by the Zucchini Industries Limited, a company registered in the Ireland and is operating interalia in Dubai, for the last ten years. These TDRs are not under the lien of the plaintiff/Bank for the repayment of the aforesaid finance, but those have been furnished as security by the aforesaid company against counter guarantees No. 2372 for Sui Nothern Gas.
6. 1 have heard learned counsel for the parties.
The important legal point, which has cropped up in the matter is, whether this Court, while exercising its special jurisdiction under the Financial Institutions (Recovery of Finances) Ordinance, 2001, or in the exercise of its general powers conferred by CPC, can issue an extra territorial injunction, restraining the defendants from the encashment of the TDRs issued by the plaintiffs branch at Dubai, and are laying there. Learned counsel for the applicant-plaintiff in order to satisfy this Court about such jurisdiction has made reference to the Mareva injunctions". Which have been issued by the English Court in the following cases:- In the Republic of Haiti vs. Duvlier (1990 1 OB 202 (C.A), ah injunction was granted in aid of proceedings pending in France restraining the defendants from dealing with their assets wherever situated and requiring the defendants to disclose information relating to their assets worldwide.
In Derby & Co. Ltd. Vs. Welden (1990) Chy. 48 (C.A), it was held that a pre-judgment Mareva injunction and ancillary disclosure could be granted in relation to assets worldwide in the course of litigation pending in England irrespective of whether the defendant had assets in England.
In Deby& Co Ltd. Vs. Weldon (No. 6) (1990) 1WLR 1139, 1149 it was held that the jurisdiction of the Court to grant a Mareva injunctions against a person depends not on territorial jurisdiction of the English Court over assets within its jurisdiction, but on the unlimited jurisdiction of the English Court in personam against any person, whether an individual or a corporation, who is, under English procedure, properly made a party to proceedings pending before the English Court.
It was further held in the same case that the jurisdiction could be exercised to order to transfer of assets from one foreign jurisdiction to another or to restrain the transfer of assets from one foreign jurisdiction to another or to order the return to England of assets from a foreign jurisdiction. But it was emphasized that these were highly exceptional orders.
In Babanaft International Co. S.A. Vs. Bassame (1990) Ch. 13 at 38.41 (C.A) an injunction was granted after judgment in a fraud action, restraining the judgments-debtors from disposing 6f any of their assets worldwide.
The learned counsel further submits that the rule of "Mareva injunctions" has been duly recognized by the Pakistani's Court, in the case reported as Balagamwala Oil Mills (Pvt) Ltd. Vs. Shakarchi Trading A.G. & 2 others (PLD 1990 Karachi 1). Moreover, this Court under the provisions of section 94(e) of the CPC read with section 151, which is about its inherent jurisdiction, has ample powers to grant the "Mareva injunctions" regarding such a property, or the subject-matter, which is outside the territorial jurisdiction of the Pakistani Court; but the defendants of the case reside within the jurisdiction of the Court, who in personam can be restrained through an injunctive order.
7. The judgments cited from the foreign jurisdiction, only have the persuasive value. However, I concur with the law, laid down by the Division Bench of the Sindh High Court in the case reported as Balagamwala Oil Mills (Pvt) Ltd. Vs. Shakarchi Trading A.G & 2 others PLD 1990 Karachi 1 (Supra) and further hold that on the principle of ex debito justice, which means, in accordance with the requirement of justice, the Pakistanis Court in appropriate cases, can grant interim relief in the nature of extra territorial jurisdiction, under its inherent jurisdiction to do justice, however, the propriety whereof, shall be dependent upon the facts and circumstances of each case. But before such power should be exercised, the rules of International Laws; the principles of the conflict of law; the Municipal law pf the country, where the subject-matter about which injunction is being sought and issued and whether such an injunction shall command respect and enforceability in the country, where it has to take the effect, should also be necessarily kept in view..
To my mind, such an interim relief/injunction thus can be issued, in "personam" against a persoone, who has been validly and properly joined and arrayed as a party to the legal proceeding, pending before the Court in Pakistan, and under the law, the court otherwise have the jurisdiction over the party, it can undoubtedly be issued against a party, who is legally joined and has at so submitted to the jurisdiction of Pakistani Courts, such a person/party can obviously be directed through an injunctive order to perform or restrain from performing any act, related/connected to a subject- matter, which even is outside the jurisdiction of the Court in Pakistan,
8. Having laid down the foundation about the jurisdiction of Pakistani Court, to issue the injunctions in the nature of extra territorial. Now I take up the matter to examine, if the applicant has made out a case in this behalf by establishing the three essential ingredients regarding the grant of injunction.
9. The TDRs in question are not shown to be owned by respondents No. 4 to 7, rather by the Zucchini industries (Pvt;) Limited, which is a company registered in the Ireland and is operating interalia in Dubai, and is not a party to the present lis; even on the principle of injunction in personam, it cannot be issued to such a company, which is the owner of the TDRs, but not a defendant to the case. Secondly, it is not pima facie proved on the record that the said TDRs are under the lien of the bank for the satisfaction of the finance in issue. No letter of lien in this regard has been placed. Even otherwise, it has been explained to me by the respondent's side that actual amount of an amount of Rs. 1976.880 Million was obtained by respondent No. 1 out of which, Rs.,100 Million has been admittedly returned; at the time of availing the finance, the project of respondent No. 1, which is mortgaged with and under the charge of the plaintiff/Bank was got assessed from independent evaluator by the plaintiff for an amount of Rs. 186 Million. Now after the return of Rs. 100 million, obviously, the claim of the Bank stands substantially reduced, than the value of the project, which remains to be the prime security for the discharge of the liability by respondent No. 1. Moreover, Mr. Zafar Iqbal, Manager of the Assets & Recovery of plaintiff/Bank, who is present in the court, when asked, has candidly conceded that the value of the land and building of the respondent No. 1, presently shall be around 40 million and if the machinery etc. leaded , it shall increase to 144/145 million. Thus in my view, the above property/assets of the principal' debtor seem quite sufficient, rather more than the claim of the plaintiff/Bank. Therefore, I am of the view that a prima facie case for the grant of an interim Injunction has not been made out and in the facts of the case, the applicant also fails to establish in its favour the other two essential ingredients,requisite for the grant of the interim relief Resultantly, the application of the Bank in this behalf is dismissed in the light of above, the applications are accordingly disposed of.