' IJAZ AHMAD CHAUDHRY, J.---Through this petition under section 11 of the Undesirable Cooperative Societies (Dissolution) Act, 1993, Mian Shahbaz Ahmad petitioner has challenged the order dated 1- 7-2002 rendered by the Chairman Punjab Cooperative Board, Lahore.
2. The facts giving rise to this petition are that Plots Nos.190-191, Abu Bakar Block, New Garden Town, Scheme, Lahore were owned by Lahore Improvement Trust, which transferred the said plots in favour of Mst. Ayesha Begum and possession was also delivered to her. Mst. Ayesha Begum sold the said plots to Mian Khurram Zahoor, Mian Shahzad- ud-Din and Mian Zaka-ud-Din vide Sale- deed dated 3-7-1974 and then said Khurram Zahoor etc. Sold the said plots to Mst. Anwar Sultana wife of Muhammad Shafique Bhatti on 24-10-1974. She constructed a Bungalow on the said plots after getting site plan sanctioned from Lahore Development Authority. Mst. Anwar Sultana sold this property to Mst. Afshan Malik wife of Mian Shahbaz Ahmad petitioner on 25-4-1991. The sale-deed was registered on 27-4-1991, entered in the Book of Sub-Registrar, Lahore on 29-4-1991 and total consideration amount was settled at Rs,1,400,000 but according to the agreement between the parties only Rs,50,00,000 were shown as consideration in the sale-deed. Said sale-deed was executed by Ashfaq Ahmad General Attorney of Mst. Anwar Sultana and Rs,90,00,000 at the time of sale were paid to Mst. Anwar Sultana in cash and remaining amount of Rs, 50,00,000 was paid through Pay Order No, A (A)/ F-649102 dated 27-4-1991, and the said number of the Pay Order has been mentioned by the Sub-Registrar at the time when the sale deed was presented before him.
The said property had no concern with Pasban Cooperative Finance Corporation. Ashfaq Ahmad deposited the said Pay Order in his account, which was encashed and nothing was due from Mst.
Afshan Malik. An application was moved by Ashfaq Ahmad, the said Attorney General to the PCBL and the Anti Corruption Department claming that property had been sold to Mian Shahbaz Ahmad, husband of Mst. Afshan Malik for a total consideration of Rs,1,40,00,000 and Rs,90,00,000 were paid in cash and Mian Shahbaz Ahmad petitioner issued a cheques amounting to Rs,10,00,000 and the property which was existed in the name of Mst. Afshan Malik wife of Mian Shahbaz Ahmad, bearing No, 17-E-II, Gulberg-III, Lahore was also sold but sale-deed could not be executed because the Finance Corporation was declared Undesirable Cooperative Society and Bungalow No, 17-E-II Gulberg-III, Lahore was purchased for an amount of Rs,40,00,000 and he also requested to get back an amount of Rs,10,00,000. PCBL vide its letter dated 3rd April, 1999 addressed to Mr. Muhammad Arshad Malik informed that a deal had been undertaken between the Pasban Cooperative Finance Corporations (Defunct), now under the control of Punjab Cooperative Board for Liquidation, and Mian Shahbaz Ahmad, ex-MPA in connection with the property of House No, 17-E II, Gulberg II, Lahore, following the sale of Bungalow No, 100-191 Abu Bakar Block, New Garden Town Lahore at Rs,1,40,00,000, against which Rs,90,00,000 were paid by him in cash and cheque of Rs,10,00,000 was given. In lieu of the remaining amount of Rs,40,00,000, House No, 17-E-11, Gulberg- III, Lahore which was in the name of Mst. Afshan Malik, wife of Mian Shahbaz Ahmad was to be given by him. The sale-deed thereof could not be executed. It has been stated that Sheikh Mansoor ex- MED, PCFC (defunct) was guarantor to this deal.
3. Notice was served and direction was issued to Mr. Arshad Malik, who appeared on 13th April, 1999 at 11-00 a.m. A similar type of letter was also written to Raja Riaz Ahmad, and it was added in that letter dated 3rd April, 1999, Annexure-G of this petition that Sheikh Mansoor Ahmad, ex-MD PCFC was given the job to execute the sale transaction as allegedly he was the Managing Director of the Mall View Plaza Branch at that time. Mr. Muhammad Arshad Malik also moved an application confirming the earlier application moved by him. The petitioner aggrieved by the action of PCBL in this connection on 18-5-1993 moved Petition No, 51-C/1999 in this Court claming that nothing was outstanding against him from the sale of Bungalow No,190-191 Abu Bakar Block New Garden Town, Lahore, and he retreated the claim for payment of the total amount in the manner narrated above.
Comments were filed by the respondent-PCBL in the said petition in which stand was taken by the PCBL that the property had been mortgaged with PCFC on 23-1-1989 by Mst. Anwar Sultana to secure a loan limit of Rs,10,000,000 in the name of Messrs National Pipe Industries Ltd, G.T Road, Satellite Town, Gujranwala, and as such the sale-deed of the encumbered property was executed by one Ashfaq Ahmad, General Attorney, which was not a bona fide transaction and that the property vested with PCFC as per entries in the Day Book and Cash Book of 13-8-1990. It was stated in the reply that the property was mortgaged, hence, sale was null and void in favour of wife the petitioner. Mr. Ashfaque was a Manager of PCFC Defunct and with his connivance this transaction was mala fidely executed without receiving lawful consideration account of PCFC. Sale-deed signed by Mst. Afshan Malik wife of Shahbaz Ahmad, the Property No 17-E, Gulberg HI, Lahore was also vested with defunct PCFC though the sale-deed was not executed owing to the collusion with the Ex-Manager and she had unlawfully transferred the property in the name of Mst. Lubna Shah.It was also claimed that Chaque No,05754213 dated 30-5-1990 amounting to Rs,1,0,00,000 signed by Mst. Shahbaz Ahmed had been handed over to Mr. Ashfaque Ahmad, and same was lying on record as unpaid. It was claimed that Ashfaq Ahmad was an Attorney Holder/Manager of PCFC who on behalf of PCFC got scribed sale-deed of House No 17-E, Gulberg-III, Lahore, in favour of PCFC having the signature and thumb impression of Mst. Afshan Malik on it. It is further claimed that on receipt of application of respondent No, 3 against respondent No,2 the respondent No, 1 examined the case and notices were served to Mr. Ashfaq Ahmad and Mr. Muhammad Arshad Malik. After hearing and on written confirmation given by Mr. Ashfaq Ahmad, Raja Riaz, Muhammad Arshad, Sheikh Mansoor alleging that the amount was due from Shahbaz Ahmad. It is also claimed that respondent No, 4 was responsible too. In response to para No, 17, it is admitted that the Pay Order dated 27-4-1991 for Rs,5 million endorsed on sale-deed at the time of registration by the Sub-Registrar had been duly collected from HBL and proceeds credited into Account No, CD-2 Sundry Deposit Account and on same day i,e, 2-5-1991 debited/misappropriated to the credit of Account No, SB-114 of Mr. Ashfaq Ahmad.
4. This Court vide order dated 15-9-2000 set aside the order of the PCBL and case was remanded to the Chairman Punjab Cooperative Board for Liquidation for decision afresh after giving the petitioner an opportunity of being heard. The Chairman Board through the impugned order has directed the petitioner to deposit the amount of Rs,50 lacs along with prescribed rate of interest as allowed by this Court in a scheme of repayment of PCBL loans, if still applicable.
5. Learned counsel for the petitioner contents that sale-deed in favour of Mst. Afshan Malik wife of Mian Shahbaz Ahmad petitioner executed by Mst. Anwar Sultana (Annexure-B) of this petition had been presented before the local commission on 27-4-1991 and it was mentioned therein that total consideration amount was settled at Rs,50,00,000 which was paid through Pay Order No,A(A)/F- 649102 dated 27-4-1991 to be withdrawn from HBL Bull Road, Lahore, hence, the sale was complete and it was not shown anywhere in the sale-deed executed by Ashfaq Ahmad General Attorney who subsequently claimed him to be attorney of Pasban Cooperative Finance Corporation (Defunct).
He only disclosed that he was general attorney of Mst. Anwar Sultana and he was given authority to sell Bungalow No, 190-191 Abu Bakar Block, New Garden Town, Lahore, that he had entered into an agreement to sell with the wife of the petitioner namely Mst. Afshan Malik and after receiving the amount had handed over the possession of the said Property to Mst. Afshan Malik; that the said sale-deed is a registered document and the power of general attorney of Ashfaq Ahmad has been placed on the record along with the sale-deed as Annexures-B & C respectively on this petition, which is a registered document and has been executed by Mst. Anwar Sultana in favour of Ashfaq Ahmad and about property No,191 she had given full power to Ashfaq Ahmad to sell the property and the said agreement was presented before the local Commission on 12-8-1990. It is also contended by the learned counsel for the petitioner that it has been admitted in the impugned order that an amount of Rs,90,00,000 was paid in cash and a cheque of Rs,10,00,000 was given while the remaining amount of Rs,50,00,000 was paid through Pay Order No,A(A)/F-649102 dated 27-4-1991, which was deposited in the sundry account and has been misappropriated by Ashfaq Ahmad. Also contends that claim of PCBL that an amount of Rs, 50,00,000 is outstanding against the petitioner is based only on the ground that according to Ashfaq Ahmad he had issued a cheque of Rs,10,000,000 and also sold the Property No,17-E, Gulberg-III, Lahore for an amount of Rs,40,00,000 but there is no documentary evidence to show that the said property was ever sold by Ashfaq Ahmad in favour of Pasban Cooperative Finance Corporation (Defunct) and the impugned order has been passed on surmises and conjectures, which is liable to be set aside by this Court. It is further contended that documentary evidence and contents of the sale-deed which is a registered document will have to be preferred over the oral statement of Ashfaq Ahmad and others etc. That the said order is not based on the cogent reasons and being not supported by any evidence except for the oral statements cannot be sustained, which may be set aside.
6. On the other hand, learned counsel for PCBL opposes this petition on the ground that the order is well reasoned and supported by the evidence on record and this petition may be dismissed.
7. I have heard the learned counsel for the parties and also perused the impugned order as well as the documents attached with this petition. There is dispute that the Property No, 190-191 had been purchased by Mst. Anwar Sultana from Mian Khurram Zahoor etc. And she had constructed a bungalow on the said plots. It is also admitted fact that sale deed was executed in favour of Mst.
Afshan Malik wife of Mian Shahbaz Ahmad petitioner by Mst. Anwar Sultana through her attorney namely Ashfaq Ahmad. It is also on the record that total consideration amount for the said sale deed was shown as Rs,50,00,000 which was executed defore the local commission on 27-4-1991. It has been mentioned in the sale deed at the time of presentation before the local commission that total consideration amount of Rs,50,00,000 had been paid through Pay Order No A (A)/F 649102 dated 27-4-1991 which was to be withdrawn from HBL Bull Road, Branch.
8. Through the impugned order it has been held by the Chairman PCBL that an amount of Rs,90,00,000 was paid in cash by the petitioner to Sheikh Mansoor Ahmad while he was supposed to hand over house No, 17-E, Gulberg-III, Lahore in lieu of Rs,40,00,000 and another cheque of Rs,10.1acs, which proved to be invalid since it was postdated. It has been found correct through the finding and the other evidence that total consideration amount was Rs,1,40,00,000 out of which Rs,90,00,000 were paid to Sheikh Mansoor in cash and Rs,50,00,000 were paid through pay Order. It is also not denied that the said Pay Order was deposited in the sundry account and it has been held through the impugned order by the Chairman PCBL that the said amount was got withdrawn by Ashfaq Ahmad general attorney and misappropriated. The claim of PCBL that the said property was mortgaged with Pasban Cooperative Finance Corporation against loan of Rs,1,25,00,000 while it is claim of the petitioner that the said property had been redeemed on 13-8-1990 and the sale deed was also executed in favour of the petitioner on 27-4-1991 after repayment of the property.
9. It is also case of the PCBL that Ashfaq Ahmad was Manager of Pasban Cooperative Finance Corporation, who was also general attorney of the said Corporation and he had sold the property due to the power of attorney which was given to him as Manager of Pasban Cooperative Finance Corporation. On the other hand, this fact is not found mentioned in the sale deed Annexure-B dated 27.4.1991 in favour of Mst. Afshan Malik wherein Muhammad Ashfaq was shown as general attorney appointed by Mst. Anwar Sultana. Even otherwise, the general power of attorney which is annexed with this petition as Annexure-C, had been executed on 12-8-1990 also does not disclose that the said power of attorney had been given to Ashfaq Ahmad by Mst. Anwar Sultana being Manager of Pasban Cooperative Finance Corporation (Defunct). If Pasban Cooperative Finance Corporation had concealed this fact in spite of having given the power of attorney to Ashfaq Ahmad who further sold the property Mst. Afshan Malik wife of the petitioner without disclosing that he acted being Manager of the said Pasban Cooperative Finance Corporation and also delivered the possession whereafter Pasban Cooperative Finance Corporation kept silent on this issue for so many years unless for the first time Ashfaq Ahmad moved an application to the Anti-Corruption Department that petitioner had defrauded him by not making payment of the remaining amount and handing over Property No, 17-E, Gulberg-III, Lahore and cheque of Rs, 10,00,000 which was not encashed following sale on 190-191, the petitioner cannot be blamed for the same at this belated stage.
10. It is also found mentioned in the impugned order that the said amount of Rs,50,00,000 had not been encashed, but misappropriated by Mr. Ashfaq Ahmad. In such circumstances it is not proved on the record that Ashfaq Malik had acted as a Manager Pasban Cooperative Finance Corporation at the time of sale deed rather he had concealed this fact. The property had been previously mortgaged against the loan of Rs,1,00,00,000 and the said property was redeemed. In such circumstances, sale of House No, 190-191, Abu Bakar Block Garden Town, Lahore in favour of Mst.
Afshan Malik prima facie had no connection with the sale of House No, 17-E, Gulberg-III, Lahore for Rs,40,00,000 as claimed and for payment of Rs, 10,00,000 as the cheque was in favour of Ashfaq Ahmad and not in favour of Pasban Cooperative Finance Corporation. It is also found that the said property and Ashfaq Ahmad had moved application on the basis of which the proceedings were initiated by the PCBL but Ashfaq Ahmad appeared in the Court and made the same statement which has been relied upon for declaring the petitioner as defaulter of Rs,50,00,000 The oral statement cannot prevail over the documentary evidence which does not find mention the name of Pasban Cooperative Finance Corporation and Sheikh Mansoor Ahmad cannot be relied upon for directing the petitioner to make payment who did not disclose and kept mum at the time of sale in favour of Mst. Afshan Malik.
11. I am of the view that it is not proved through any cogent-evidence that the said property was owned by Pasban Cooperative Finance Corporation and it was sold as shown by Ashfaq Ahmad to the petitioner. There is also no documentary evidence on the record to show that the amount of Rs,1 crore had not been paid by the petitioner to Ashfaq Ahmad general attorney as it is admitted that Pay Order was given to Ashfaq Ahmad at the time of execution of the sale-deed, who deposited the same in his account and according to the impugned order the amount was misappropriated by Ashfaq Ahmad while the remaining amount of Rs,90,00,000 was paid to Sheikh Mansoor who had misappropriated the said amount instead of depositing the same in the account of PCFC.
12. As a result of above discussion, I find that no case is made out against the petitioner directing him to make payment of Rs,1 crore 40 lacs. Hence, this petition is accepted and the impugned order dated 1-7-2002 passed by Chairman, PCBL is set aside.
' No order as to costs.