1. ' SYED HASAN AZHAR RIZVI, J. ---C.M.A. No,2285 of 2001 has been filed by applicant/objector B.R.R.
2. International Modarba under Order XXI, Rule 58 read with section 16 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and read with section 151, C.P.C. With the prayer that the applicant may be allowed to take possession of the leased machinery lying in the factory of judgment debtor Messrs Nusrat Textile Mills Ltd. And also directions to the Official Assignee to release the said machinery. The application is duly supported by affidavit of Major (Retd.) Owais Hasan, Manager Recoveries of applicant B.R.R. International Modarba.
3. ' I have heard Mr. Shahab Sarki learned counsel for the objector and Mr. Naveedul Haq, learned counsel for the Decree Holder.
4. ' Mr. Shahab Sarki advocate for the objector contended that the applicant and judgment-debtors entered into a machinery lease agreement dated 15-6-1993 and codicil to the said lease, but the judgment-debtor defaulted in payment of the subject lease. He also contended that the machinery was leased out by the present applicant to the judgment debtor is lying in the premises of Messrs Nusrat Textile Mills situated at 7 k.m. On Joharabad - Muzaffar Garh Highway, District Khoshab. He contended that the applicant Modarba filed Suit No,10 of 1999 before the Modarba Tribunal at Lahore and obtained a decree dated 1-7-2000 for the sum of Rs,24,241,665. He urged that the applicant has made an application to learned Modarba Tribunal, Lahore for the grant of permission to the applicant to take the possession of the said lease machinery and to sell the same without the intervention of the Modarba Tribunal, which application was granted on 10-7- 2001.
5. ' Learned counsel has also made reference to the affidavit-in-evidence filed by the applicant in compliance of the order of this Court, wherein it has been mentioned that the machinery, which is the subject matter in the case, was imported against Letter of Credits opened by Faisal Islamic Bank and the payments against those were made by the applicant Modarba on various dates and the same was verified and acknowledged by Faisal Bank Ltd. Vide certificate dated 19-9-2007. He further contended that the said machinery has neither been mortgaged with decree holder in the titled execution petition nor the decree holder has got any lien/charge over the said machinery. He, therefore, prayed for grant of the application in favour of the applicant.
6. ' Mr. Naveedul Haq learned counsel for the decree-holder vehemently opposed to the grant of listed application and submitted that this Court in Suit No,1693 of 1997 filed by the decree holder against the judgment debtor was pleased to pass judgment and decree dated 7-8-1999 allowing the Bank to sell the mortgaged properties. He also submitted that the documents produced before the Modarba Tribunal Lahore by the applicant were forged and false. He further contended that contrary to the stance taken up before the Tribunal, the applicant has taken a U-turn and filed additional Affidavit-in-Evidence claiming therein that the machinery which is present subject matter of the case was imported against Letter of Credit opened by Faisal Islamic Bank. He submitted that the applicant has never taken this stance ever before. He, however, contended that the applicant miserably failed to produce original lease agreement and instead produced Codicil to machinery lease agreement, which established that applicant has been avoiding to produce the original lease agreement. He further urged that applicant has failed to prove that at no point of time the ownership of the machinery vested in the Nusrat Textile Mills Ltd. And the documents produced by the applicant clearly shows that the machinery was sold to BRR Modarba meaning thereby that the machinery belonged to Nusrat Textile Mills Limited which was sold to BRR Modarba.
7. Learned counsel has also made reference to the case of INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN v. MUHAMMAD AYUB STONE CRUSHERS AND OTHERS (2009 SCM R 611), wherein it has been held that registered mortgage would be a notice to entire world of factum of its registration. He, therefore, submits that application is liable to be dismissed and prayed that Official Assignee may be directed to release the sale proceeds of the machinery in the sum of Rs,10 million to the decree holder bank.
8. ' I have given due consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record, particularly the References made by the learned Official Assignee.
9. ' This Court vide order dated 1-7-2002 directed that representative of Official Assignee and applicant's representative would go to the factory and would prepare an inventory of the availability of the machinery lying there. In compliance of the said order, the Official Assignee along with the representatives of the applicant and CIRC visited the factory premises and prepared the inventory of the machinery. It revealed that pursuant to the order passed in Suit No,663 of 2001 dated 28-3-2005 the sale of Nusrat Textile Mills (judgment-debtor) was held and the highest bid offered by Messrs Husnain Spinning Mills was accepted vide order dated 9-5-2005 with consent of the decree-holder excluding the machinery, which is claimed by applicant Messrs B.R.R.
10. International Modarba. It is further revealed that after the sale of the factory Nusrat Textile Mills the applicant Messrs B.R.R. International Modarba has moved application seeking permission to lift the lease assets as per report dated 11-7-2002, which was granted on the joint request of the learned counsel for the parties on 28-10-2005 and the learned Official Assignee was directed to dispose of the machinery in question by public auction and keep the sale proceeds with him till the title in respect of the property is determined. It was also ordered on the request of learned counsel for the applicant and decree-holder that they will place before the Official Assignee documentary evidence in support of their claim and the Official Assignee was directed to take into consideration the documentary evidence and evidence placed before him and will submit his report within four months from the date of order.
11. ' In compliance of the above directions the Official Assignee filed Reference No,3 of 2005, wherein it has been mentioned that the highest offer in the sum of Rs,8.4 million for the purchase of machinery was given by Messrs Husnain Spinning Mills. On 25-5-2006 when the said Reference was listed for hearing, Mr. Naveedul Haq, advocate for the decree-holder and Mr. Shahab Sarki, advocate for the applicant had given their no objection for acceptance of the highest bid, but MEO Engineering through Mr. Mukhtar Ahmed Kober advocate filed an application requesting that he may be allowed to purchase the said machinery on the price quoted by the highest bidder and he was asked to give his offer. Mr. Mukhtar Ahmed Kober stated that he is ready to purchase the machinery for the sum of Rs,9.50 million, whereas the highest bidder increased the bid amount to Rs,10 million, but the representative of applicant MEO Engineering expressed his inability to improve the bid more than Rs,9.50 million. With consent of the parties counsel, the highest bid of Rs,10 million was accepted and the auction purchaser was directed to deposit the balance amount within 15 days.
12. ' The applicant Messrs B.R.R. International Modarba has filed affidavit-in-evidence of Iqbal Ahmed his authorized attorney along with documents containing cheques, copy of plaint filed in the Modarba Tribunal Lahore, copy of decree sheet, copy of execution application and other proceeds apart from lease agreements executed between the applicant and judgment debtor to prove his claimed over the machinery installed at the factory premises of Messrs Nusrat Textile Mills. The said witness has also filed additional affidavit-inevidence to show that the machinery which is the present subject matter in the case was imported against the letter of credits opened by Faisal Islamic Bank and the payments against those were made by the applicant Modarba on various dates, which can be verified from letter dated 19-9-2007 issued by Faisal Islamic Bank Lahore. The witnes was duly cross-examined by Mr. Naveedul Haq, advocate for the decree-holder bank.
13. ' The decree-holder bank has also filed affidavit-inevidence of Tarig Ansari, authorized representative of NBP along with documents Viz: certified copy of judgment and decree, Memorandum of Deposit of Title deeds, Supplementary Agreement to execute Registered Mortgage Deeds, General Power of Attorney and Authorization letter. Mr. Abid Hussain, advocate cross-examined the said witness. In the cross-examination the witness clearly deposed that in the year 1985 there was no existence of subject machinery and there is no mention of subject machinery in supplementary memorandum of deposit of title documents dated 27-3-1995. He further deposed that there is no mention of subject machinery in Exh.B/4 to B/8 as well as in Exh./B/1 i.e. Affidavit-in-evidence. He also deposed that there was no agreement of subject machinery between United Bank Ltd. And Nusrat Mills, but he voluntarily stated that there was an agreement of all the machinery present and future.
14. ' Perusal of evidence adduced by the parties clearly shows that there was no agreement in respect of machinery installed in the factory premises. The agreements produced by the decree-holder is only mentioned that all the present and future plant machineries, tools, equipments etc. Are mortgaged under the said two agreements but there is no specific description of machinery, which is claimed by the applicant Messrs B.R.R. International Modarba. Whereas the applicant has produced the several cheques and verification letter issued by the Faisal Islamic Bank dated 19-9- 2007 confirming that payments were made by Messrs B.R.R. International Modarba for machinery imported under different letter of credits opened on behalf of Messrs Nusrat Textile Mills. All the documents filed by the decree-holder are pertaining to mortgage deeds of all the pieces and parcel of land, present and future plant machinery, but there is no specific mention of the machinery in the name of Nusrat Textile Mills in the said documents. Moreover, the suit filed by applicant Messrs B.R.R. International Modarba against Messrs Nusrat Textile Mills was decreed by Modarba Tribunal Lahore in Suit No,10 of 1999. The applicant has placed on record the certified copies of memo of plaint and order/judgment passed by the Modarba Tribunal, Lahore in his favour through statement dated 16-3-2005. The paragraphs (4) and (5) of the memo of plaint in Suit No,10 of 1999 discloses the details -of machinery imported by defendant Nusrat Textile Mills and lease agreements executed between the applicant and Nusrat Textile Mills for the said machinery. In the order passed by the Modarba Tribunal Lahore, it was observed that the defendants have admitted the execution of documents and the factum of obtaining machinery against cash which was rightly received by them. Additionally, no appeal was preferred by Nusrat Textile Mills against the judgment/decree passed by the Modarba Tribunal, Lahore in favour of the applicant, which attained finality.
15. ' In view of the discussion made above, I am of the considered view that the machinery belongs to applicant Messrs B.R.R. International Modarba, as the decree holder has failed to prove any lien/charge over the said machinery. Therefore, the application bearing C.M.A. No,2285 of 2001 is granted and the Official Assignee is directed to release the amount to the applicant Messrs B.R.R.
16. International Modarba along with profit accrued thereon.