KHALID ALI Z. QAZI, J. --- Heard the learned counsel for the parties on the office objections.
Office lias raised the following objections:-
(i) It appears that the suit in respect of prayer clauses (b) and (d) of the plaint is hit under Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and Section 56 of the Specific Relief Act, as the suit bungalow was mortgaged with the defendant No. 1/Bank by the defendant No. 2 and the defendant No. 1/Bank has issued auction notice through publication in daily 'Jang'
Karachi on its publication on 15.1.2008, as provided under Section 15(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as per Annexure "C" at page-29 for auction in respect of the suit bungalow will be held on 7.2.2008.
(ii) It may be pointed out that the Financial Institution/Banks had filed Banking as well as civil suits against the defendant No. 2 being suits Nos. B-30/2005, B-Nil/2006 and Execution No. 45/2006 which are pending for adjudication before this Hon'ble Court.
(iii) Cost, copies and draft summons to be supplied."
In reply, learned counsel for the plaintiff has submitted that Section 15 of tile Financial Institutions (Recovery of Finances) Ordinance, 2001 only applies to the persons who availed the loan facilities from any Financial Institution. But in the present case the plaintiff has not availed any financial facilities from the defendant No. 1 hence, the bar as provided under Section 15 and Section 56 of Specific Relief Act shall not apply to the present suit. With regard to the second objection, learned counsel has submitted that the plaintiff has not filed any suit nor tie is party to such above- noted suit hence the same are not relevant. Learned counsel has further submitted that he has complied the third objection. In support 'of his above contentions, learned counsel has relied upon the cases of Nasimuddin Siddiqui and another V. United Bank Limited and another (1998 CLC 1718) and Avari Hotels Limited & others v. Investment Corporation of Pakistan & 6 others (2000 YLR 2407).
Mr. Arshad Tayebally, learned counsel for defendant No. 1 has no objection if the office objections are overruled at this stage and suit be admitted as civil suit.
Under the circumstances and following the principles laid down in the above-cited case, particularly no objection recorded by the learned counsel for the defendant No. 1, office objections are overruled. Office is directed to register the suit as civil suit with all just exceptions.
C.M.A. No. 662/2008: This is an application, under Rule 76 of Sindh Chief Court Rules (O.S.) r/w Order XXXIX, Rules 1&2 and Section 151, C.P.C., filed by the plaintiff seeking restraining order against the defendants, their employees, agents or any other person acting from and on their behalf directly and indirectly from interfering with possession of the plaintiff of the suit property bearing Bungalow No. 52/II, Khayaban-e-Hilai, Phase-VI, measuring 500 Sq. Yards, D.H.A., Karachi, and from creating any third party interest in the suit property or taking any action adverse to the interest of the plaintiff during { the pendency of the suit. The application is supported by the affidavit of the plaintiff.
2. Brief facts of the case as stated in the memo, of plaint are that plaintiff and defendant No. 2 entered into an agreement for sale in respect of residential Bungalow No. 52/II, Khayaban-e-Hilal, Phase-VI, measuring 500 Sq. Yards, D.H.A., Karachi, accordingly given token money in the sum of Rs.
5,00,000/- on 3-12.2000. On 4.12.2000, the plaintiff further paid a sum of Rs. 35,00,000/- out of the total sale consideration of Rs, .60,00,000/- to defendant No. 2. It is stated that sale agreement acknowledges receipts of the afore-said amount and defendant No. 2 also acknowledged ^ the receipt of payment. The possession of the suit property was handed over to the plaintiff. The balance amount of Rs. 20,00,000/- is outstanding against the plaintiff, who is ready and willing to make payment of the said amount provided that conveyance deed in terms of the agreement is executed in his favour. It is further stated that utter surprise to the plaintiff that defendant No. 2 purportedly created a mortgage in favour of defendant No. 1 and the defendant No. 1 has published an advertisement in the press seeking to sell the property in terms of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
3. Further case of the plaintiff, is that the defendant No. 2 had purchased the suit property vide sale- deed dated 2.12.2000 from one Mehmood Ali Khan through his legal constitution registered attorney Raees Ali Khan, which was originally allotted and leased to Mrs. Parveen Bukhari by the Pakistan Defence Housing Authority. The property is in the residential category and as such cannot be mortgaged without obtaining prior permission of D.H.A. The plaintiff at the time of entering into sale agreement had enquired from D.H.A. And was informed that no permission to mortgage has been issued with respect to the suit property. It is stated that mortgage purportedly created by defendant No. 2 in favour of defendant No. 1 and void and is a result of collusion between the defendants to jeopardize the interest of the plaintiff. It is also stated that deceitful attempt of the defendants is bound to cause irreparable harm to the plaintiff and is causing mental agony and tension to the plaintiff and the plaintiff is entitled to be compensated for the injury caused by the defendants to the tune of Rs. 20,000,000/-.
4. Counter-affidavit to the listed application has been filed by Sadaquat Khan, authorized officer/attorney of the defendant No. 1 and denied all the allegations levelled in the memo, of plaint.
It is stated that supporting affidavit of the application does not mention the facts of the suit and only states that the plaintiff in the suit be deemed as an integral part of the affidavit. As per procedure the affidavit in support of the application should contain the particular facts, grounds and reasons in sufficient detail on which the applicant relies for the equitable interim relief sought, and the supporting affidavit should be self-contained with all ' necessary documents and the plaintiff has failed to mention any facts to substantiate his allegation as to how and what rights of his are violated and in which manner such violation may cause huge losses to the plaintiff. It is further submitted that the suit is false and frivolous and the plaintiff has no prima facie case at all and the suit of the plaintiff is dishonest, collusive and mala fide. It is submitted that the transaction allegedly took place on 3.12.2000, but strangely enough the plaintiff failed to initiate any legal proceedings or file a suit for specific performance in respect of the said property for a period of over seven years, as no prudent and reasonable person could possibly wait for a period of seven years for registration and transfer of title after having paid a total sum of Rs. 40,00,000/- as part payment for the said property and not even obtained original title documents.
5. It is particularly mentioned that it was highly improbable or virtually impossible that the defendant No. 2 purchased the property on 2.12.2000 and sold the same on the very next day being 3.12.2000 to the plaintiff. The sale- deed was registered on 2,12.2000 and enrolled at MF Roll No. U- 38463 on 8.12.2000, there is no possible way by which the defendant No. 2 or the plaintiff could get a hold of the photo-copies of the conveyance deed on 3.12.2000 as they were in the possession of the Revenue Department for microfilming till 8.12.2000. It is submitted that plaintiff mala fidley and in order to suppress the true facts from this Court failed to enclose the last page of the sale-deed which shows that date of registration/microfilming. It is further submitted that plaintiff has failed to provide any evidence of payment in respect of the alleged payment of Rs. 40,00,000/- out of the total sale consideration of Rs. 60,00,000/-. No photo-copies of cheques, pay orders or cash receipts have been shown and there exists marked differences in the signature and C.N.I.C. No. Of the defendant No. 2 on the sale agreement in respect of the suit property. It is also submitted that plaintiff has dishonestly claimed that the defendant No. 1 did not obtain a legally valid mortgage on the said property as it did not seek permission from D.H.A. As required. In this regard it is submitted that defendant No. 1 has obtained permission for creation of mortgage through letter Annexure-'B' to the counter-affidavit. The defendant No. 1 has placed for dismissal of application of the plaintiff for equitable interim relief with compensatory costs, as neither a prima-facie case nor balance of convenience would lie in favour of the .. Plaintiff.
6. I have heard Mr. Abdul Qayyum Abbasi, learned counsel for plaintiff and Mr. Arshad Tayebally, learned counsel for defendant No. 1 and perused the material available on record. In my humble view the following facts are not in dispute:-
(a) That the plaintiff is resident of Mehmood Gulzar Building No. 2 Muhammad Ali Alvi Road, Eid Gah Lane, Karachi.
(b) That the Plot No. 52/II, measuring 497.22 sq. Yards with double storey bungalow constructed thereon, situated in Khayaban-e-Hilal, Phase- VI, D.H.A., Karachi, had been purchased by Abdul Qadir Jangda on 2.12.2000 through registered deed of conveyance bearing No. 3950 registered with concerned Sub- Registrar T-Division and MF Roll No. U-38463, dated 8.12.2000.
(c) That the property bearing No. 52/II, Khayaban- e-Hilal, Phase-VI, D.H.A., Karachi was mortgaged in favour of defendant No. 1.
(d) Permission to mortgage the said plot No. 52/II, Kayaban-e-Hilal, Phase-VI, D.H.A., Karachi, was issued by. Office of the Military Estate Officer, Karachi Cantonment on 22.7.2004.
(e) The defendant No. 1 has published an advertisement in daily 'Jang' dated 15.1.2008 inviting offers to sell the suit property through auction in terms of Section 15 of the- Financial Institutions (Recovery of Finances) Ordinance, 2001.
(f) That the sale transaction allegedly took place between the plaintiff and defendant No. 2 for sale of the suit property on 3.12.2000 but plaintiff failed to initiate any legal proceedings or file a suit for specific performance in respect of the said property for a period of over seven years after "having paid a total sum of . Rs. 40,00,000/- with the defendant No. 2 as per payment for the said property and not obtained original documents.
(g) The payment receipt Annexure "A" for Rs. 5,00,000/- allegedly executed by defendant No. 2 had not been affixed any stamp. The particular of attesting witnesses had also not been fully mentioned.
7. On bare perusal of sub-section (12) of Section 15 of Financial Institutions (Recovery of Finances)
Ordinance, 2001 no stay can be granted either by the Banking Court or the High Court in respect of the sale or proposed sale of mortgaged property. It would be appropriate to reproduce sub- section (12) of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which reads as under:--- "(12) Neither the Banking Court nor the High Court shall grant an injunction restraining the sale or proposed sale of mortgaged property unless:-
(a) It is satisfied that no mortgage in respect of the immovable property has been created; or
(b) All moneys secured by mortgage of the mortgaged property have been paid; or
(c) the mortgagor or objector deposits in the Banking Court in cash the outstanding mortgage money."
8. It is settled principle of law that a party would be entitled to relief under Order XXXIX, Rules 1 & 2, C.P.C. Provides that it satisfies the Court that it has a prima facie case; that balance of convenience is in his favour and the irreparable loss and injury could be caused to him if interim relief is not granted. The afore-said three phrases are not rhetoric phrases but elastic words to meet a wide range of situation in given set of facts and circumstances. The burden is always on the plaintiff/applicant to satisfy the Court that a prima facie case exists in his favour. The Court must further satisfy itself that non-interference by Court would result in irreparable injury to a party seeking relief, Irreparable injury means that the injury must be a material one, one that Court cannot adequately compensate by way of damages. The Court is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury, which is I likely to be caused to the other party if the injunction is granted.
9. At present, a presumption as required under Section 118 of Negotiable Instruments Act, 1881, can be raised that the defendant No. 1 has granted finance facility to defendant No. 2 against creation of mortgage. However, all these contentions require deeper appreciation of evidence, which can properly thrash out at the time of trial. From the tentative assessment of the material available on the record. I am of the considered view that plaintiff has no prima facie case at this stage. Balance of convenience is also not in , favour of plaintiff as great inconvenience will be caused to the defendant No. 1 in exercising their legal right to recover their finances and to deal as per law. No irreparable loss will be caused to the plaintiff, if the injunction is refused the loss, if any, can be compensated in the shape of damages which has already been claimed by the plaintiff in the sum of Rs. 20 million in prayer clause (e) of the suit.
11. In consequence, the application is dismissed y with no other as to costs.