' IJAZ AHMAD CHAUDHRY, J.--- This order will dispose of both the petitions P.No,28 C of 2007 filed Ex- Chairman of PCBL Muhammad Sharif and P.No,44-C of 2007 filed by Javed Iqbal etc against the same order dated 6-2-2007 as the common questions of law and facts are involved.
2. Brief facts are that the petitioners Javed Iqbal etc. Purchased a building known as Ittefaq Steel Mills along with its underneath land measuring 16 Kanals comprising 122/130 share out of Khasra No,100 measuring 7 Kanals 12 Marlas and 46/160 share out of Khasra No,710 measuring 2 Kanals, 6 Marlas situated in Khewet No,84 Khatoni No,408 as per register Nagai Haqdaran Zameen for the year 1986-87 situated village Qilla Naveed Singh Tehsil and District Gujranwala from the respondent No,2 for a total consideration of Rs,50 lac which was paid to the respondent No,2 who delivered the possession of Mills to the petitioners but the sale deed was executed for the consideration of Rs,8 lac on 24-2-1991 which was registered with Sub Registrar Gujranwala. Then Ittefaq Cooperative & Commerce Corporation Ltd. Was declared as an Undesirable Cooperative Society with the result that the petitioners had to apply for the NOC to respondent No,1 regarding the sale transaction in their favour, but respondent No,1 failed to dispose of the said application, and petitioners filed P.No,32-C of 2002 before this Court, which was disposed of vide order dated 17-10-2003 with a direction to respondent No,1 to dispose of the application of the petitioners within 45 days. The said application has been decided on 6-2-2007 which is impugned in this petition and respondent No,2 has also filed P.No,28-C of 2007 against the same order.
3. Learned counsel for the petitioners contends that the sale deed had been executed on 24-2-1991 but the sale proceed amounting to Rs,50 lac had been deposited on 28-2-1991; that according to the impugned order the said amount was deposited for the purpose of investment and not for sale proceed; that perusal of impugned order reveals that the sale deed was executed and the claim of the Chairman of the defunct corporation was found incorrect; that the petitioners have been deprived from NOC due to lack of entry in the relevant record about payment of Rs,50 lac in spite of that the petitioners had nothing to do as the record was in possession of employees of defunct corporation, and that deposit of Rs,50 lac was on the record but if they had made wrong entry that it was for investment and not for sale proceed, the petitioners cannot be affected by the act of their own employees; that if there was no entry in support that the Rs,50 lac were deposited for sale proceed of the sale deed then there is also no forgery or entries that for what purposes the said amount of Rs,50 lac was deposited and there was no documentary evidence that this amount was deposited for any other purposes; relies upon 1971 SCMR 414. Also contends that it is on the record that petitioner is in possession and mutation was duly sanctioned in favour of petitioner and sale deed was executed in favour of petitioner; that no action was taken by the vendors from 1 year and 11 months in spite of the mutation proceedings before the PCBL; that it has been admitted that Muhammad Sharif Ex-Chairman of PCBL came to know about the mala fide of the respondent No,1, and that the respondent No,1 may be directed to issue NOC in favour of the petitioners.
4. Learned counsel for the petitioner in Petition No,28-C of 2007 contends that the impugned order is contradictory whereby it has been held by the respondent No,1 that sale money was not deposited/paid and as such the sale deed was nullity and had no legal effect; that it was held by the respondent that sale deed was executed on simple papers which could not be executed without stamp duty; that the sale deed is not a document which can be relied upon; that the PCBL has passed the order for selling the property in open auction; that there is no clear position regarding the deposit of Rs,50 lac by the vendees who are petitioners in Petition No,44-C of 2007; that property was being claimed by two persons i,e, respondent No,3 and petitioner in petition No,28-C of 2007 which is also denied by the petitioner and the evidence from the side of Riaz was not recorded and Muhammad Riaz was also claiming the purchase of property through agreement to sell, and that the order is result of misreading and non reading and the same may be set aside and case may be remanded back to PCBL.
5. On the other hand learned counsel for the respondent PCBL opposes the petition that contradictory stand had been taken by the vendees that total sale consideration amount was Rs,50 lac which was paid the same day and on the other hand sale deed finds mention that Rs,8 lac were deposited after four days; that there is no evidence in favour of the petitioners that they had made payment of Rs,50 lac, and that payment of amount has not been established in the record of defunct corporation.
6. I have heard the learned counsel for the parties and perused the documents attached with this petition.
7. The case of the petitioners Javed Iqbal etc. Is that they had purchased land mentioned in para No,1 of this petition through sale deed for a total sale consideration of Rs,50 lac. The Chairman PCBL while deciding the matter has rightly pointed out that Muhammad Sharif Ex-Chairman of the defunct corporation had taken contradictory stands regarding the execution of sale deed, who admitted his signatures upon the said sale deed as a witness while Syed Akbar Ali Shah had signed the sale deed in the capacity of representative of defunct corporation. He did not raise any objection at the time of execution of sale deed and its presentation before Sub-Registrar at the time of registration. Subsequently in March 1991 on the basis of said sale-deed mutation was sanctioned in favour of petitioners Javed Iqbal etc which was never opposed by Muhammad Sharif the then Chairman of defunct corporation. It has been admitted by Muhammad Sharif that he came to know in March 1991 that the mutation had been sanctioned, but no objection was ever raised and first time stand was taken by Muhammad Sharif that he lodged F.I.R. No,74 dated 14-1-1993 at police station Sabzi Mandi, alleging that he was abducted by Javed Iqbal, Riaz Pehlwan and Khalifa Munawar etc, who had looted articles worth crore of rupees and possession of building was also taken over by them. This case was registered on 14-1-1993 after about 1 year and 11 months without any justification on the part of respondent No,2 without explaining the delay in lodging the F.I.R. Of incident. The claim of Muhammad Sharif was that on 26-6-1991 the incident had taken place and after two days of transfer of property in favour of petitioners Javed Iqbal etc. The Chairman PCBL has rightly observed that the involvement of Javed Iqbal etc was afterthought and as a result of fabrication. It has also been observed by the Chairman PCBL that signatures on the sale deed were admitted and the mutation which was sanctioned in March 1991 was also in the knowledge of Sharif. It was also admitted by Muhammad Sharif that from 24-2-1991 till the Corporation was declared defunct he had never challenged the sale deed. The Chairman has rightly held that Muhammad Sharif Chairman of defunct corporation had never made any effort for recovery of amount of for cancellation of sale deed and for registration of case against Javed Iqbal etc. The finding of the Chairman is found correct that registration of case was highly doubtful.
8. In the above circumstances it has been held by the Chairman PCBL that the sale deed had been executed in favour of Javed Iqbal on 24-2-1991 as per evidence produced by the parties, but only question through which the NOC was not issued is that the sale deed was a for total consideration of amount Rs,50 lac, but in order to avoid income tax it was wrongly got mentioned by Javed Iqbal and Sharif Chairman of defunct corporation as Rs,8 lac. It may be an offence under other laws but the execution of the sale deed has been proved beyond any shadow of doubt through the circumstances and facts of the case and evidence adduced during the proceedings before Chairman PCBL. If the petitioners were not members of defunct and why the sale deed was executed, these questions cannot be raised at this stage when on the one hand the Chairman has accepted that sale deed was executed, the signatures were put by Muhammad Sharif, mutation was sanctioned and possession was delivered and Javed Iqbal etc were in possession of 'property due to above said sale deed. The mutation was sanctioned on 24-2-1991 and in such circumstances the refusal for issuance of NOC in favour of petitioners Javed Iqbal etc by the PCBL is not justified. The matters regarding imposition of duty or recovery of income tax, if any can be taken up by the concerned Departments, but at this stage the validity of the sale deed, the execution of which stood established on the record cannot be doubted. It was the duty of the vendor to maintain the correct record and the petitioners cannot be held responsible for any lapses on the part of respondent No,2 in the absence of any evidence that they were party in maintaining incorrect record.
8-A. It is established beyond any shadow of doubt that petitioners had purchased the said property and sale deed was executed and registered, before declaring the corporation defunct or undesirable and all the necessary steps were completed for the transfer of property. Learned counsel for the petitioners Javed Iqbal etc has rightly relied upon 1971 SCMR 414 and relevant portion is reproduced as under:-- "As regards the payment of consideration the High Court does not appear to have considered certain material facts. The sale took place in May 1936, and it was made by a registered deed which contained a recital that the consideration had been received and this was supported that the consideration had been received and this was supported by the evidence of D.W.7. The onus in this respect, therefore, lay very heavily indeed on the plaintiff- respondent to prove that the consideration had not been paid. This onus, in our opinion has not been discharged. Furthermore on the analogy of the decision reported in ILR 42 Mad. 20, when the matter has passed from the stage of contract to that of an executed conveyance and possession of the property has been given there under even non payment of consideration will not render the transaction void. The price if not paid, is a charge on the property sold and it can be recovered under the law. Title to the property nevertheless passed on the registration of the sale deed."
9. It has been held by the august Supreme Court of Pakistan that when all the other formalities were completed/observed, even nonpayment of consideration will not render the transaction void.
9(A). In such circumstances the refusal of NOC is irrelevant question this question is accepted and PCBL is directed to issue NOC to the petitioners Javed Iqbal etc without any further delay.
10. As far as Petition No,28-C of 2007 is concerned learned counsel for the petitioner contends that case may be remanded on the ground that it was a case of non-reading and misreading. I do not find any justification for remanding the case back to Chairman PCBL whereas the sale deed was executed and mutation was sanctioned, payment was made before Sub-Registrar but the petitioner kept silent for one year and eleven month. It has been observed in the impugned order that even in the F.I.R. No incident was explained having happened on 24-2-1991 when two documents were registered. The petitioner himself has admitted that he had come to know about this fact in March 1991, but he never challenged the same any where and has also failed to explain the amount which was received by him at the time of sale deed and when he put his signatures at the time of registration of sale deed. The observations made by Chairman PCBL against Muhammad Sharif are borne out from the record. In such circumstances, I do not find any merits in the petition of the petitioner Muhammad Sharif and Petition No,28-C of 2007 is dismissed being devoid of any force.