' SAIYED SAEED ASHHAD,-J- Respondent No,1 Muslim Commercial Bank Ltd. Had granted loan/finance facility in favour of Messrs H.A. Rehman and Sons, a sole proprietorship firm run by Abdul Hamid Gang.. Similarly, respondent Muslim Commercial Bank Ltd. Had granted loan/finance facility in favour of Messrs Sabico International another sole proprietorship firm run by Abdul Razzak. In C.P.L.A. No, 343 of 2007, respondents Nos.4 to 13 and C.P.L.A No,344 of 2007 respondents Nos. 4 to 14 are the mortgagors having mortgaged their respective properties as security for repayment of the loans. Petitioner is also said to have mortgaged her property bearing Plot No, 180, situated at Block No,8, Federal "B" Area, Karachi.
2. On, failure of Messrs H.A. Rehman and Sons and Messrs Sabico International to repay the amount of loans/finance facilities made available to them, respondent-Muslim Commercial Bank Ltd. Filed two separate suits against Messrs H.A. Rehman and Sons and Messrs Sabico International as well as the mortgagors/guarantors including the petitioner and obtained two separate decrees, one for Rs,22,26,251 and another for Rs, 25,92,783.95. Respondent-Muslim Commercial Bank Ltd. Filed execution proceedings for sale of the mortgage properties for recovery of decretal amount and at that stage petitioner Mst. Akhtar Begum filed an application under section 12(2) of the Code of Civil Procedure stating therein that she had no knowledge of filing of the suit, did not receive any notice of the afore-stated suits did not sign any document or mortgage deed whereby her afore-stated property was said to have been mortgaged as security for recovery of the afore-said loan, and that bank had played fraud upon her. She also leveled allegations against Mr. Muhammad Salim The pdawala, Advocate stating that she had never authorized him to represent her in afore-said two suits before Banking Court denying to have signed Vakalatnama authorizing. Mr. Salim Thepdawala as her Advocate as well as her signature on the written statement. Both the applications were dismissed by the Banking Court. Feeling aggrieved and dissatisfied with the order of the Banking Court, the petitioner assailed the same by way of two separate appeals under section 22(1) of the Sindh Financial Institutions (Recovery of Finances) Ordinance, 2001. Both the appeals were dismissed and it will be appropriate to reproduce paragraph No,4 from the order of the High Court which deals with the factual as well as the legal aspect of the case, as under:-- "In the context of submission made by the learned counsel, we have carefully perused the contents of the two identical applications moved by the appellant under section 12(2), C.P.C. And seen that only vague assertions have been made by the appellant in her affidavit that she had no knowledge or information about the decree passed in the suit and that she had not obtained any loan from the decree holder bank. Needless, to observe that it was not the case of the finance institution/ decree-holder bank that any loan facility was extended to the present appellant, but the case of the decree holder against the appellant was that she had mortgaged her property with the bank through her attorney. This position is duly supported from the bunch of documents placed on record by the respondent-Bank along with their plaint in the two suits which also contained documents regarding creation of mortgage in . Respect of the said property in favour of the respondent No, 1 /decree-holder bank. The point which has been argued before us by the learned counsel Mr. Fazal Dad that the appellant had not engaged any counsel iii the suit nor she had filed any written statement in the suit, was not even raised by the appellant in her application under section 12(2), C.P.C., and it is further belied from the perusal of the Vakalatnama of Mr. Saleem Thepdawala Advocate filed before the Banking Court on 7-7-1994 and the written statement filed before the Banking Court on the same date which bear signatures of the appellant."
3. Again feeling aggrieved and dissatisfied with the impugned order of the High Court, the petitioner had filed afore said two separate petitions for leave to appeal.
4. We have heard the arguments of the petitioner present in person assisted by her son and Mr. Rizwan Ahmed Siddiqui, learned Advocate Supreme Court appearing on behalf of the respondent No,1 and have also perused the material on record.
5. The petitioner initially levelled allegations against Mr. Salim Thepdawala, Advocate for not conducting her case properly before the Banking Court. Subsequently, she made statement that she never appointed Mr. Salim Thepdawala as her Advocate and had no knowledge of the pendency of the two suits. In view of the above notice was issued to Mr. Salim Thepdawala to appear in Court thereupon he submitted his explanation according to which he was engaged by Mr. Abdul Hamid Gang, who according to his own statement was representing all the other respondents, and had taken Vakalatnama to obtain the signatures of the respondents which was returned to him duly signed by all the respondents including the petitioner. He admitted that petitioner had not signed the Vakalatnama in his presence.
6. The petitioner before us has totally denied to have executed the mortgage deed or any other document and categorically stated that her signatures appearing on the documents namely mortgage deed, general power of attorney in favour of the bank, Vakalatnama and the written statement filed in Suits Nos. 718 and 719 of 1994 were forged/ manipulated by somebody with mala fide and criminal intent to cheat and defraud her and further submitted that the bank in collusion and in league with the other respondents had manipulated/forged the afore said documents by putting her signatures on the same.
7. We have minutely examined the disputed documents. In view of the emphatic dehial by the petitioner of having signed the aforesaid documents. In our view, it was inoperative for the Banking Court to have referred the same to handwriting expert for obtaining his opinion whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the ground of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed power of attorney, etc. Led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a Handwriting Expert for conclusively holding that the disputed documents bear the signature of the petitioner. It is a right of a party to seek and demand every possible assistance from the Courts of law and to hold him/her responsible only when he or she is B found to have acted contrary to law.
8. For the above discussion we order that all the documents bearing the signatures of the petitioner be referred to handwriting export along with her admitted and specimen_ signatures for seeking his opinion whether they bear the signatures of the petitioner or the signatures, purporting to be of the petitioner were forged or manipulated. The documents in original should be forwarded to the Handwriting Export and the party who is in possession of the original should produce the same before the concerned Banking Court for onward transmission to the Handwriting Export along with admitted signatures and specimen of the petitioner. The cost/expenses to be incurred in the matter is to be borne by respondent No,
1. Till such time a positive report is received from the Handwriting Expert relating to the signatures of the petitioner on the disputed documents, no proceedings for sale of the mortgaged property of the petitioner shall be undertaken for recovery of the decreetal amount. At the same time, the petitioner shall not dispose of, sell, transfer or create third party interest/ burden/charge in respect of the mortgage property.
9. Mr. Rizwan Ahmed Siddiqui, learned counsel for respondent No,1 submitted that decrees were passed in the matter against Messrs H.A. Rehman and Sons on 26-10-1999 and Messrs Sabico International on 6-11-2000 but till today the bank has not recovered the decretal amount and prayed that the bank may be allowed to proceed for recovery of the decreetal amount against the remaining/other judgment-debtors except the petitioner.
10. It is informed that the judgment and decrees of the Banking Court were not assailed by the other judgment-debtors and have attained finality. In the circumstances, we do not find any hindrance for respondent No,1 to pursue their execution application before the Banking Court against the remaining judgment-debtors except the petitioner.
11. The proceedings against the petitioner will be taken after the report of the Handwriting. Expert is received for the concerned Banking Court in terms of the report.
12. Both the above petitions are converted into appeals and stand disposed of in the above terms.
Parties are left to bear their own costs.