' MUNIB AKHTAR,. J.---By means of C.M.A. 8050 of 2009 ("main application"), the defendant No,1 seeks modification and variation of the decree dated 25-10-2001 whereby the present suit was decreed by way of a compromise between the parties. The suit had been instituted by the plaintiff then a non-banking financial institution (NBFI), under the Banking Companies (Recovery of Loans.
Advances. Credits and Finances) Act, 1997 ("1997 Act") to recover an amount of Rs,355.371 million from the defendant No,1 (due as on 30-9-2000). Proceedings against the defendant No,2 (Bankers Equity Ltd., another NBFI) were pro forma, and that defendant is not relevant for present purposes.
The second application, CMA 8049/2009. Seeks condonation of the delay, if any, in the filing of the main application. It may be noted that the main application was filed with reference to sections 151 and 152 CPC read with Order-21, Rule 2 thereof, but learned counsel for the defendant pressed his case entirely on the basis of section 152. (It is also to be noted that the plaintiff has subsequently been merged with or into NIB Bank Ltd.)
2. Briefly stated, the defendant's case on the main application is as follows. Learned counsel contended that the compromise decree was obtained by the plaintiff as a result of misrepresentations, which was not known to the defendant at the time that the compromise was arrived at between the parties. The result of these misrepresentations was that the plaintiff was able to obtain the defendant's consent to a decree that was for an amount considerably greater than what would otherwise have been the case. It was many years later, in 2008, that the defendant had the matter examined by a team of chartered accountants, and the true facts came to light. The defendant had in the meanwhile, been diligently paying the installments in terms of the compromise decree. However, the position that emerged was that the defendant was making overpayments to the plaintiff. The defendant corresponded with the plaintiff in this regard, but the latter took the position that the matter was covered by the compromise decree. Having no other alternative, the defendant filed the present applications in the suit. It may be noted that after these applications were filed, an order dated 23-12-2009 was made in terms of which the defendant was required to continue making payments as per the compromise decree, but without prejudice to its case under the main application. The plaintiff gave an undertaking that if it was eventually found that the defendant had made overpayments, it would refund the balance amount.
3. Learned counsel for the defendant submitted that after the suit had been filed as above on or about 7-11-2000, the defendant filed its leave to- defend application. Thereafter, the matter got, referred to the committee for the revival of sick industrial units ("the committee") that had been set up around that time under the auspices of the State Bank. As a result, there was a compromise between the parties, and an application, being C.M.A. 7937/2001, was filed under Order XXIII, Rule 3, C.P.C. The terms of the compromise agreement were contained in the application. It was on this application that ,an order was made, on 25-10-2001 (in terms as prayed) whereby the suit was decreed by consent. Learned counsel submitted that the compromise application, and hence the compromise decree, recorded that the liability of the defendant towards the plaintiff stood admitted by the former as being Rs,369.123 million as on 31-42-2000, which was the cut off date.
Out of this amount, the defendant was liable to pay a sum of Rs,285 million in 20 six-monthly installments commencing from 1-3-2002. Thus, if the defendant paid the installments as per the agreement, it would obtain a remission in liability of Rs,84.123 million (i,e, the admitted liability of Rs,369.123 million minus the amount paid of Rs,285 million). Learned counsel submitted that the defendant started making payments as per the compromise decree. However, in 2008, it instructed a firm of chartered accountants to examine the entire matter. The chartered accountants made a report dated 3-5-2008, and they concluded that if the defendant's liability had been correctly computed, especially in light of the State Bank circulars regarding elimination of interest, the amount actually payable by the defendant as on 31-12-2000 would have been Rs,257.861 million. As is at once apparent, this amount is considerably less than the liability of Rs,369.123 million admitted in the compromise application. Thus, the defendant would end up making a huge overpayment to the plaintiff in consequence of the agreed amount containing several components that could not lawfully be claimed by the plaintiff or were illegal on account of the binding State Bank circulars.
The defendant immediately wrote to the plaintiff in this regard, but was rebuffed, and finally the latter, by means of its letter dated 15-4-2009, took the categorical stand that the parties were bound by the compromise decree, which had to be acted upon by the defendant under at' circumstances. This eventually led, as noted above, to the filing of the present applications on or about 21-8-2009.
4. Learned counsel accepted, quite correctly, that the general rule was that a compromise decree could only be modified or varied by consent. However, he contended 'that there were certain exceptions to this, one of which was stated by the Privy Council as long ago as ,1923. In Jamnabhai v. Fazalbhoy Heptoola and others AIR 1923 PC 184, the Privy Council observed that if "serious and substantial injustice" would be caused, then the consent order could be varied. Learned counsel also placed reliance on certain decisions under section 12(2), C.P.C. In support of his case, being Allah Wasaya and others v. Irshad Ahmad and others 1992 SCMR 2184, Da' dabhoy Cement Industries Ltd v. National Development Finance Corporation PLD 2002 SC 500 (and the eponymous decision of the Court below, which was this Court. And whose judgment is reported at 2002 CLC 166 (DB)), Mobile Eye Service of Pakistan v. Director Social Welfare and another PLD 1992 Karachi 183(DB) and Zafar Ahmad and others v. Government of Pakistan and others 1994 MLD 1612 (LHC; SB). He also referred to Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Awami Cotton Ginners and others PLD 1995 Karachi 282(SB), this being a case involving Order XXIII,. Rule 1, C.P.C. He submitted that it was well settled that a compromise decree could be set aside if it had been obtained on account of fraud, misrepresentation or any other ground on which a contract could be set aside.,
5. Learned counsel contended that the plaintiff had a dominant position in and throughout the entire transaction. At all material stages, it was the record, and in particular the statement of accounts, filed and presented by .The plaintiff that was, relied upon. He submitted that a compromise decree could be set aside on the same grounds that a contract could be avoided but of course, it was incumbent for the party seeking relief to bring its case within the parameters of the ground(s) being taken (e.g., fraud, misrepresentation, mistake, etc.). He submitted that if such a case was properly made out, then not merely could the compromise deciee be set aside in its entirety, but (much more importantly, since this was of the essence of the defendant's case) the court could also in "appropriate circumstances modify the decree, by setting it aside in part and allowing it to stand to the extent that it- was lawful. In particular, he submitted that the court could vary or modify the amount payable under a compromise decree if it found that a portion thereof could be (or could have been) avoided by the party obligated to make payment on any ground on which the contract could be avoided.
6. Learned counsel referred to the, prayer clause of the main application, and submitted that the only relief sought was a modification of the compromise decree by way of a reduction in the amount payable by the defendant. This prayer was made because certain components of the amount payable under the compromise were illegal and could not have been lawfully claimed by the plaintiff. He contended that the court had ample powers under section 152, C.P.C. To modify the compromise decree in this manner, and relied on Manzoor Hussain and others v. Malik Karam Khan and others 1991 SCMR 2451 and Sher Muhammad and others v. Khuda Bur and another PLD 1961 Lahore 579 (SB). The ground on which, according to learned counsel the present compromise agreement (and hence the compromise decree) could be avoided was misrepresentation, i,e,, in terms of section 18 of the Contract Act. Learned counsel based his case on clauses (2) and (3) thereof (and particularly the (latter), and referred to Civil Aviation Authority v. Aer Rainta International (Pvt) Ltd. 2003 YLR 1523 (SHC; SB). Learned counsel also relied strongly on the decision of the Lahore High Court in the Zafar Ahmad case (supra).
7. To establish his case that there had been misrepresentation by the plaintiff learned counsel referred to the letters dated 25-8-2000 and 25-10-2000 that had been written by the defendant to the plaintiff seeking the detailed breakup of the amount being claimed by the latter and other particulars regarding the account. However, no such details were provided. Learned counsel submitted that this amounted to misrepresentation on the part of the plaintiff. Learned counsel emphasized that the defendant had no means to properly ascertain the legality of the plaintiff's demand and had been forced simply to accept what was placed before it by the latter. The defendant believed what the plaintiff represented regarding the state of the account in good faith to be true. In this manner, the plaintiff had gained an advantage over-the defendant by misleading it. And including unlawful amounts in its claim. He submitted that the defendant was informed that only if it accepted what the plaintiff had said would it (the defendant) be able to avail the benefit of the revival scheme referred to above. It was only later that. In 2008, the true position emerged.
Learned counsel submitted that -certain components of the compromised amount were clearly unlawful and illegal on account of being violative of binding State Bank circulars (in particular in relation to the charging of interest) and section 74 of the Contract Act (the penal interest being an unlawful penalty).
8. Learned counsel also referred to the correspondence addressed by the defendant to the plaintiff subsequent to the exercise carried out on its behalf by the chartered accountants by which it discovered the true position. He referred to the letters dated 15-1-2009, 6-5-2009, 5-6-2009 and 16- 6-2009. He submitted that the only reply ever received from the plaintiff was that the parties were bound by the terms of the compromise decree. Learned counsel emphasized that at all material times, the defendant did not know, nor did it have any means of knowing, the correct position and the true facts, whereas the plaintiff all along had full knowledge of the same. He referred to section 19 of the Contract Act, and in particular relied on the second paragraph thereof. (Learned counsel also submitted in relation to this section that the exception thereto had been declared contrary to the Injunctions of Islam by the Supreme Court in Wafaq e Pakistan v. Awainunnas 1988 SCMR 2041 Learned counsel submitted that the defendant had a strong case for appropriate modification of the compromise decree and prayed accordingly.
9. Learned counsel for the plaintiff strongly opposed the main application. He referred firstly to the loan agreement (dated 4-2-1992) in terms of which the facility sued upon had been provided to the defendant. He submitted that the recitals to the loan agreement expressly stated that the Federal Government had obtained a line of credit from the World Bank (and/or its associate entity, IDA) in foreign currencies for financing various projects in Pakistan. This amount had been relent by the Government to the plaintiff, who had used part of the amount so made available to finance the sugar mill project of the defendant. Learned counsel submitted that the loan given to the defendant was repayable in 20 installments and the loan agreement provided, in clause (5), that interest at the stipulated rate would be chargeable from the defendant. There was also an express provision (clause 11) regarding penal interest in case the defendant failed to pay any installment when due.
10. Learned counsel submitted that the defendant went into default, which led to the first restructuring of the loan on or about 22-12-1997. The restructuring was subsequently modified twice, but the defendant again defaulted, and that led to the filing of the suit. The amount claimed was, as noted above, Rs,355.371 million. Learned counsel emphasized that the full particulars and details of the claim were provided in the statement of account annexed to the plaint and there was, at all material times, full and complete disclosure by the plaintiff. The defendant therefore could have no conceivable grievance in this regard. The amount had at all times, including as stated in the plaint, been claimed strictly in accordance with the loan agreement.
11. Learned counsel further submitted that the State Bank's BCD Circular No,13 of 20-6-1984 ("BCD 13"), which is the cornerstone of the present system of interest free banking, contained certain exceptions, and referred to paragraph 2 thereof. This provided that nothing in the circular was to apply "to on-lending of foreign loans which will continue to be governed by the terms of the loans".
He referred to section 29 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("2001 Ordinance"), whereby the 1997 Act was repealed. Subsection (2) expressly stated that the 1997 Act would continue to apply to interest bearing loans. With reference to the charging of penal interest, learned counsel submitted that section 74 had no application to the facts and circumstances of the present case.
12. Learned counsel contended that no question arose of the plaintiff having dominated or obtained an unfair advantage over the defendant. He submitted that both were sophisticated parties, which had freely and willingly entered into the relevant transactions, i,e,, the loan agreement and the compromise agreement. Referring to the statement of claim (totaling Rs,355.371 million) he submitted that even if the amounts of penal interest (Rs,33.206 million) and capitalized interest (Rs,25.196 million) were excluded, the amount payable by the defendant would still come to Rs,296.9 million. (This was of course, without prejudice to the plaintiffs case that penal interest and capitalization were perfectly lawful in the present case.) Yet, the compromise decree only required the defendant to pay an amount of Rs,285 million. This amount was thus even less than the original principal plus interest, and no interest was being charged from the defendant for the entire period during which payments were being made on the compromise decree. He submitted that the compromise decree was eminently fair and indeed tilted in favour of the defendant 'which could therefore have no possible grievance. Learned counsel denied that the defendant was ever under any sort of threat or coercion from the plaintiff. He submitted that the defendant had defaulted, and instead of suing for the amount due, the plaintiff had restructured the loan as noted above. Despite such restructuring the defendant persisted in its default, and it was only then that the instant suit was filed.
13. Learned counsel also referred to the relevant minutes of meeting of the committee for revival of sick units held on 25-11-2000 at which the defendant's case was decided, as well as the correspondence leading up to the. Compromise. In particular, he referred to the defendant's letter of 6-2-2001 and the plaintiffs letters of 22-3-2001 and 11-6-2001 to contend that the compromise was arrived at as a result of proper negotiations between the parties. He referred in particular to the plaintiff's letter dated 1-6-2001, whereby it had agreed to a modification sought by the defendant in the terms of the compromise. He submitted that this showed that the plaintiff had acted throughout in a responsible, flexible and accommodating manner. Thus, there could be no possible grievance on the defendant's part.
14. Learned counsel submitted, with reference to sections 18 and 19 of the Contract Act that the defendant had failed to make out any case of misrepresentation. He contended that the second paragraph of section 19 did not apply to the present case. He submitted that the material facts were all along available with the defendant and any assertion to the contrary was incorrect. He referred to the exercise carried out by the chartered accountants on the defendant's behalf and submitted that its case in this regard was contradictory. The defendant could not have provided any information or material to the chartered. Accountants that it did not itself have. If therefore the defendant did not, as alleged by it, have access to the relevant material and record, then there could not have been anything made available to the chartered accountants for them to carry out the exercise and reach the conclusion that they did.
15. With regard to section 152 CPC, learned counsel submitted that the proviso to section 27 of the 2001 Ordinance enabled a court exercising jurisdiction thereunder to correct any typographical error or mistake in a decree. This was in part materia section 152, C.P.C. However, the equivalent provision in the 1997 Act (which was section 27 thereof) had nothing similar to the proviso, and hence there was no such power available under the latter statute. Since the present matter continued to be governed by the 1997 Act, the relief sought through the main application could not be granted. Even as regards section 152, learned counsel submitted that its scope was much more limited than as contended for the defendant, He therefore contended that no case at all had been made out for interference with the compromise decree and 'the main application merited dismissal.
16. Exercising his right of reply, learned counsel for the defendant submitted that the exception in paragraph 2 of BCD 13 only applied if the loan was in foreign currency and repayable in such terms.
However, in the present case, the loan agreement was in Rupee, terms. Hence, the exception did not apply. As regards the penal interest, learned counsel reiterated that it was in the nature of a penalty and hence its charge was unlawful by reason of section 74 of the Contract Act. He also referred to the dictionary meaning of "on-lending" to contend that it applied only when the actual sum lent was lent further to a third party. This admittedly was not the case at hand. He reiterated that there was complete inequality of bargaining power between the plaintiff and the defendant and it was for this reason that the former was able to claim the penal interest and the capitalized interest even in terms of the compromise decree.
17. I have heard learned counsel as above, examined the record with their assistance and considered the case law relied upon by them. The nature of a compromise decree is of course well known. It is the compromise agreement to which the Judge's order has been superadded. It is also well settled that even though the judicial imprimatur has been affixed to the compromise agreement, the ensuing decree can be set aside on the same grounds as are available to impugn an ordinary contract, such as beitrg -void (or voidable, as the case may be) on the grounds of mistake, fraud, misrepresentation, coercion. Etc. However, it is important to, keep in mind that the compromise agreement remains distinct and separate from the compromise decree. This is unlike the situation in an 'ordinary' decree, i,e, one that results from a judicial adjudication of a dispute on its merits. There, the agreement (or more precisely, the matters directly and substantially in issue arising out of or relating to the agreement, whether actually or constructively) as it were merge into the decree and are embodied in it. In World Automobiles and others v. Muslim Commercial Bank Ltd. And others 2009 CLD 1276, a decision relied upon by learned counsel for the defendant, the question before a learned Division Bench of this Court was whether the terms of a compromise decree could be amended or varied outside the court by the parties. One view was that the compromise decree could not be challenged or varied at all (see at paras 31-33 of the decision).
The other view was that decree -could be varied by consent or agreement of the parties (see at paras 34-35). After reviewing the authorities, the learned Division Bench held as follows: "36. Having carefully considered the law on the variation/amendment of compromise decrees outside of the Court by the parties We find the latter mentioned two authorities to be more persuasive. To us there seems to be no logical reason why two parties by consent, out of Court, cannot vary/amend their own Court sanctioned agreements. This is more so, if the variation/amendment does not materially affect the substance of the earlier Court sanctioned agreement (as in this case) which simply be consent purported to substitute one form of security with another which was also sufficient to repay the debt.
37. Accordingly we find that Court sanctioned compromise decrees, as opposed to decrees, passed on merit by a Court of competent jurisdiction, can be varied/amended by the parties by consent outside of the Court but same may need seal of the Court. The failure to have such agreed variations/amendments endorsed by the Court may be fatal to the parties, or one party, seeking to rely on them.
38. The preferred approach in order to avoid later disputes/uncertainty regarding the variations/amendments agreed to between the parties, or to guard against one party backing out of the agreement (as in this case) would, of course, be for these variations/amendments again to be endorsed by the Court which passed the original consent order.." (Emphasis supplied)
18. In my respectful view, it is clear from the foregoing observations that notwithstanding its embodiment in the compromise decree, the compromise agreement continues to retain its own existence. Otherwise, no question could at all arise of its variation or modification, and certainly not outside the Court". It therefore follows that when considering the question whether, and if so to what extent, a compromised matter can be set aside or modified, it must be carefully ascertained whether the challenge is to the decree or the agreement. The compromise agreement is made by the parties, and the compromise decree by the court. If the agreement is successfully impugned, then the decree will almost always fail. But it may be possible to attack the decree without impugning the agreement. A challenge to the one is therefore not necessarily a challenge to the other. Furthermore, the grounds on which the agreement on the one hand and the decree on the other can be attacked may overlap but are nonetheless distinct. It may be that as a matter of form, the challenge is (and may have to be) directed towards the decree. However. It is the substance of the challenge that must be carefully ascertained, and hence the distinction between the A decree and the agreement must be kept in mind. Thus, if a compromised matter is challenged on the ground of (say) misrepresentation, it is important to be clear whether the attack is directed against the agreement or the decree. The reason is that the compromise agreement, being simply .a contract, can only be impugned on the ground of misrepresentation if the matter comes within the ambit of the Contract Act, i,e, sections 18 and 19. The compromise decree on the other hand, may be set aside under section 12(2), C.P.C.. Now, one of the grounds available under the latter provision is that the decree was obtained by misrepresentation. However, it is clear that as used in section 12(2), the term "misrepresentation" has a meaning and connotation broader than the definition contained in the Contract Act. There is thus an overlap, but not complete identity, between a challenge to the compromise agreement and one directed against the compromise decree. Even if the challenge is framed in terms of section 12(2), the court must, while considering the matter, keep the foregoing distinction in mind. These conclusions follow naturall from the observations in World Automobiles, which are of-course binding on me.
19. In my view, it further follows as a corollary that a remedy available against the compromise agreement may not be available against the compromise decree and vice versa. This also makes it important to carefully keep in mind whether the challenge is directed towards the agreement or the decree so that the challenge and the remedy are not incorrectly conflated. In my view and with respect, this is precisely what has happened in the present case. The defendant's challenge is directed towards the compromise agreement on the ground that it is tainted by illegalities amounting to misrepresentations and hence liable to be modified. But the remedy sought, i,e,, relief under section 152, C.P.C., is only available (as presently relevant) against a decree. The two are not the same thing. For example, it is obvious that relief under section 152 may be available in respect of a compromise decree without the compromise agreement being impugned at all. The "correction" of a compromise decree is not the same thing as the modification of the compromise agreement. Put differently, the power to "correct" the decree does not confer any power to modify the agreement. The two matters are separate and distinct and must be so dealt with. In my view therefore, the very basis on which the defendant's case has proceeded is not sustainable.
20. However, it was argued by learned counsel for the defendant that the power conferred by section 152, C.P.C. Was of wide amplitude and not limited to or controlled by the ostensible language of the provision. He relied strongly on Sher Muhammad and others v. Khuda Bux and another PLD 1961 Lah. 579, where a learned single Judge, after reproducing sections 151 to 153, C.P.C., opined as follows: "6. The language used in sections 152 and 153 of the Code of Civil Procedure, however makes, it clear that even after a Court has disposed of a suit, it can exercise powers tinder those sections and indeed a part of section 152 of the Code of Civil Procedure could come into play only after a suit, in the proceedings of which correction is sought, has been disposed of, because till a suit is disposed of, there is neither a judgment nor a decree in that suit except in those cases in which a preliminary decree has to precede the final decree as in cases for accounts. Sections 152 and 153 of the Code of Civil Procedure confer powers on Courts to make necessary corrections in their proceedings, orders judgments, and decrees, which powers are unlimited by the law of limitation or in any other manner, and those powers can be exercised even if no application in that behalf has been made to the Court.
7. The fact, however, that the powers of Court under sections 152 and 153 of the Code of Civil Procedure to make necessary corrections in its proceedings, orders, judgments and decrees are unlimited does not mean that they will be exercised in all cases in which an application for their exercise is made and it need hardly be emphasised that whether or not those powers should be exercised will depend on the circumstances of each case. If, for example, a party complaining against a mistake in a proceeding, order, judgment or decree of a Court has not taken early steps for the necessary correction being made, a Court will be reluctant to exercise its unlimited but discretionary powers for the benefit of that party. Nor will the Court effect amendments in its own proceedings, orders, judgments or decrees if the error is so insignificant that it could not cause any great prejudice to the party asking for the exercise of the powers of amendment. If, however, a party has applied for amendment at as early a stage as possible and the error or omission, which can be corrected by amendment, is of such a nature that it can adversely effect the party making the application, the Court will ordinarily exercise the power because their technicalities notwithstanding laws of procedure are meant for advancement of justice and not for denying it."
(pp. 582-3)
' Learned counsel emphasized the references to the "unlimited" power available to the court in terms of sections 152 and 153. I find it pertinent that no prior authority was cited by the learned Judge in support of his rather broad observations. The observations also do not seem to have been received with much enthusiasm inasmuch as this decision does not appear to have been widely relied on or cited. In any case, even the learned Judge himself took pains to point out the 'limitations' that would apply in the exercise of the "unlimited" power, and the limitations enumerated certainly do not appeal' to be exhaustive. Now, it is possible to read what has been opined contextually, i,e, that all that the learned Judge meant to say was that the power to correct clerical or arithmetical mistakes or accidental slips or omissions is unlimited. If so, I would have no cavil with What has been said. However, that is quite different from the meaning ascribed to the observations by learned counsel or the case sought to be built thereon by him. If the view of the cited decision as propounded by learned counsel is correct then I must, with the utmost respect, disagree with what has been said. The scope of section 152, C.P.C. Is clearly limited to what is expressly provided for therein, namely the correction of clerical or arithmetical errors or accidental slips or omissions. The broad meaning sought to be given to this section by learned counsel for the defendant strains the language beyond what is permissible or possible in terms of settled principles of statutory interpretation. In relation to the proper scope of section 152, learned counsel for the plaintiff relied on Koka Adminarayana Rao Naidu v. Koka Kothandaramzayya Naidu and others AIR 1940 Madras 538, wherein it was observed as follows: "Section 152 does not empower a Court to rectify a decree merely because that decree is wrong or unfair or because the parties have not realised their rights and put them before the Court in such a way as to enable a correct decree to be passed. The powers given under this section only relate to arithmetical mistakes or errors arising from an accidental slip or omission." (pg. 539)
' Quite so; I fully agree.
21. Learned counsel for the defendant also relied on Manzoor Hussain and others v. Malik Karam Khan and others 1991 SCMR 2451 principally to show that the power under section 152 CPC can be exercised even after a long time (about thirteen years in that case). However, the facts of that case were quite different from those at hand. It, was not a matter arising from a compromise and the error sought to be corrected was apparent on the facts of the record.
22. The decision of the Privy Council in Jamnabhai v. Fazalbhoy Heptoola and others AIR 1923 PC 184 may now be considered. The Privy Council held (at pg. 185) that "serious and substantial injustice.
Must be shown to result from letting the consent order stand" before it would be set aside. In my view, this decision, rather than advancing the .Defendant's case may well work against it. The reason is that the test propounded by the Privy Council clearly sets a higher threshold than what appears to apply in relation to decrees based on compromise agreements. As noted above, if the compromise agreement is voidable by reason (e.g.) of misrepresentation, then the agreement and hence the decree may be set aside. To apply the Privy Council test in such circumstances would clearly add another hurdle that must be crossed by the aggrieved party. For example, in order to align the Privy Council decision with what, in my view, follows from World Automobiles; it may be necessary to hold that even if the compromise agreement is found voidable on a straightforward application of the relevant provisions of the Contract Act, the court will not, in its discretion, set aside the compromise decree unless it is further shown that "serious and substantial injustice" will be caused by letting the decree stand. It is to be kept in mind that while every compromise decree (made on a compromise agreement) may be regarded as a consent order, the reverse is not necessarily the case. Therefore, it is more appropriate to regard the Privy Council test as applying only to consent orders made in circumstances other than the affixing of the judicial imprimatur on a compromise agreement.
23. I now turn to the other cases cited by learned counsel for the defendant (referred to in para 4 supra). As noted, these were (other than one decision) cases under section 12(2) C.P.C. Allah Wasaya and others v. Lrshad Ahmad and others 1992 SCMR 2184 was not a case involving a compromise decree and was relied upon by learned counsel primarily for its description of fraud.
Since learned counsel eventually pressed his case only on misrepresentation it is not necessary to consider this decision in any detail. The Dadabhoy Cement decisions arose in the context of a compromise decree, which had been made on a compromise agreement. The borrower sought to impugn the compromised matter on the basis of misrepresentation and fraud and some of the grounds taken were quite similar to those pressed in the present case (see 2002 CLC 166, 176-7).
The borrower was unable to make out a case in this Court, and a further appeal to the Supreme Court also failed. The Supreme Court observed as follows (PLD 2002 SC 500,. 507): "7. As far the allegations that the compromise decree was obtained by fraud, coercion and misrepresentation, the petitioners failed to substantiate the same as no particulars or details thereof had been given in their application under section 12(2), C.P.C. And mere allegation not supported by any material would not invariably warrant inquiry or investigation in each case. It is for the trial Court to 'see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it can dispense with the same and proceed to decide the application. So, it is not incumbent on the trial Court to frame issues in each and every case but it depends upon the facts and circumstances of each case. The argument that the respondent by adding further interest/mark-up on the amount on which interest/mark-up had already been paid, played fraud has no substance for this fact was already in the knowledge of the petitioners as they had agreed to pay the same on rescheduling of the outstanding amount, which has been admitted by the petitioners in their Suit No,416 of 1996, as such, they being the privy to the rescheduling of the loan, cannot turn around to say that further mark-up was fraudulently charged. It is settled law that where allegation of fraud is levelled, it must be specified and details thereof should be given. The contents of MOU were mutually agreed upon between the parties and there is nothing to suggest that the same as executed by fraud, I misrepresentation or under duress or coercion."
' As is clear from the above passage, the conclusions arrived at do not assist the case put forward by the present defendant and if anything, work against it.
24. Learned counsel relied on Mobile Eye Service of Pakistan v. Director Social Welfare and another PLD 1992 Karachi 183 (DB). This was also a case involving a compromise decree. The dispute was in relation to the affairs of a social welfare agency. The compromise eventually arrived at gnd recorded in the compromise decree was as to how the agency was to be managed and in particular, in relation to the holding of elections to elect its office bearers. The compromise. Was assailed, inter alia, under section 12(2), C.P.C. On grounds of fraud and misrepresentation, and the learned Division Bench referred to the dictionary meanings of these terms. However, the specific allegation was that counsel who had appeared for the official respondent did not have the requisite authority to have consented to the terms of the compromise as recorded. In my respectful view, this case (as presently relevant) is perhaps best regarded as an illustration of what I have said in para.18 supra. What was involved was not a compromise agreement and therefore, the attack was on the compromise decree as such. It was for this reason that the learned Division Bench considered the dictionary meanings of fraud and misrepresentation to ascertain how these terms were used in section 12(2), C.P.C. This case therefore is different from the matter at hand.
Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Awami Cotton Ginners and others PLD 1995 Karachi 282 (SB), also relied upon, involved issues relating to Order 23, Rule 1, C.P.C. And proceeded on a footing altogether different and distinct from the questions arising in the present case. It need not be considered in any detail.
25. On the other hand learned counsel for the plaintiff relied on Bankers Equity Ltd. And others v.
Khairpur Sugar Mills Ltd. And others 2001 CLC 737 (SHC: SB). This is an interesting case because in it the defendant was the present defendant, while the plaintiff was another creditor of the defendant; who was (as noted above) defendant No, 2 in the present suit. The recovery suit filed by the creditor was eventually decreed by way of a compromise, and this .Decree was assailed under section 152, C.P.C. On the ground that there were material differences between the compromise application and the compromise decree. A preliminary objection that section 152, C.P.C. Did not apply to cases under the 1997 Act was not accepted. The .Learned single Judge however concluded that the differences assailed were not accidental slips or omissions but deliberate and intentional changes, to which section 152 could have no application. Learned counsel also relied on Bank Alfalah Ltd. v. Bilal Spinning Mills Ltd. And another 2005 CLD 206 (SHC; SB). A decree was sought to be corrected under section 152, C.P.C. The learned single Judge questioned the applicability of this provision on account of section r of the 2001 Ordinance. However, it does not appear that the decree in question was made on a compromise agreement. Learned counsel also cited &raj Taraqiati Bank Ltd. v. Hassan Aflab Fatiana 2009 CLD 36. A learned Division Bench of the Lahore High Court also concluded that section 152 did not apply to cases under the 2001 Ordinance.
However, this case also did not involve a compromise decree.
26. In view of the foregoing discussion, I conclude as follows. It is not necessary for me to record any finding on whether section 152, C.P.C. Is or is not applicable to a suit instituted and/or continued under either the 1997 Act or the 2001 Ordinance. This is so because what is impugned in the present case is the compromise agreement and World Automobiles has established that such an agreement continues to retain a 'separate existence notwithstanding that its terms have received ,the judicial imprimatur by way of the compromise decree. Section 152, C.P.C. However, is directed towards the decree and provides a remedy in respect thereof. While it may, in appropriate circumstances, provide a remedy in relation to a compromise decree, it has no application whatsoever in relation to a compromise agreement. Furthermore, since the scope of section 152 is in any case limited, the circumstances in which it can provide a remedy are circumscribed and certainly much narrower than the case put forward by learned counsel for the defendant.
27. I now turn to consider another important aspect of the matter, namely whether, and if so to what extent, an agreement voidable for misrepresentation can be modified by the court, as opposed to being set aside in its entirety. If such an agreement can only be set aside in its entirety and not modified, then the defendant's case must fail. This is so because the defendant expressly seeks only a modification of the compromise and not its complete setting aside. It is well settled that the general rule is that a voidable agreement can be avoided in its entirety or not at all. The agreement either stands or fails as a whole. The rationale for this rule is that the court cannot and will not make the agreement for the parties. That is their matter, and for them to decide. Of course, the paramount duty of the court is to ascertain (on an objective basis) the intent of the parties and the real terms of the agreement actually arrived at. The courts have developed fairly elaborate principles of interpretation of contracts in order to do so. But that is a different matter from first finding the agreement voidable and then modifying it in order to bring or keep it within the law. It is true that some agreements contain what are known as severability clauses, which provide that if any one or more clauses of the agreement is found to be void or illegal, that will not affect the other clauses. But to apply such a provision is not to modify the contract; it is simply to give effect to what the parties themselves intended. For completeness, reference should also be made to sections 39 and 40 of the Specific Relief Act, 1877. Section 39 allows a person against whom a void or voidable instrument is outstanding. And who would suffer serious injury as a result thereof, to apply to the court to have it cancelled. Section 40 allows the court to cancel it in part and allow the remainder to stand, but this is only if the instrument is "evidence of different rights or obligations".
Section 35, which applies generally to the rescission of written agreements, does not contain any such provision.
28. None of the foregoing exceptions are relevant for the present case, and in my view, it is the general rule that is applicable. Learned counsel for the defendant relied on Zafar Ahmad and others v. Government of Pakistan and others 1994 MLD 1612 (LHC; SB). That decision arose out of the privatization of a state entity, Pakistan Switchgear Ltd. ("the company"). The successful bidder was a consortium comprising of the company's employees. Certain disputes arose, which led to the filing of a writ petition by the successful bidder. Eventually, the matter was decided by means of a compromise agreement. Subsequently, the employees challenged the compromise under section 12(2), C.P.C. On the basis that while the agreement had recorded a certain liability of the company towards NDFC (then a leading public sector development finance institution or DFI), in reality the liability was much greater. The challenge was resisted on the ground that the employees were fully aware of the relevant facts at all material times, and in any case, the compromise agreement stated that the liability towards NDFC as recorded therein was an approximate amount. It was also contended that if at all the figure in the agreement was at odds with the actual liability, it was only an unintentional mistake. The learned single Judge concluded that the statement regarding the liability towards NDFC, as recorded in the compromise agreement, came within the ambit of clause
(3) of section 18 of the Contract Act, i,e,, amounted to what is known as an innocent misrepresentation. Learned counsel for the defendant emphasized this aspect of the decision, and I will have something to say on the point later. However, for present purposes, it is important to note that after accepting that the compromise agreement was tainted by misrepresentation and hence voidable, the learned single Judge did not merely modify it; he set it aside in its entirety, with the result that the writ petition was deemed to be pending before the court.
29. In my view; nothing has been shown that would establish that even if the defendant were to succeed on its case of misrepresentation, this Court would have the power to modify the compromise agreement. Either that agreement stands as a whole or fails in its entirety. Learned counsel for the defendant categorically stated that the defendant did not want the entire agreement to be'set aside as that would result in the suit being revived. Since the relief of modification sought by means of the main application cannot be granted, the application must necessarily fail.
30. The conclusions that I have reached in paras 26 and 29 above are sufficient to dispose off the main application. However, since the matter was fully argued on the issue of misrepresentation, it would be appropriate to address this point as well.
31. Sections 18 and 19 of the Contract Act provide as follows: ".18. Misrepresentation defined. 'Misrepresentation' means and includes-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.
19. Voidability of agreements without free consent.--When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract viodable at the option of the party whose consent was so caused ' A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
' Exception.-If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
' Explanation - A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable."
' Reference must also be made to illustration (c) to section 19, which is as follows: "(c) A fraudulently informs B that As estate is free from encumbrance. Thereupon buys the estate.
The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed."
' As noted above, learned counsel for the defendant relied on clauses (2) and (3) of section 18, and in particular the latter clause, as well as the second paragraph of section 19. Learned counsel referred to Civil Aviation Authority v. Aer Rainta International Pakistan (Pvt.) Ltd. 2003 YLR 1523 (SHC), where a learned single Judge observed as follows (pp. 1531-2): "A contract procured by any representation, which is not correct, though innocent and unintentional and honestly believed to be correct is said to have been procured by, misrepresentation in terms of section 18 of the Contract Act. Where one could infer in any representation element of deceit and malice with intent and purposeful object to defraud and gain advantage over the other than such representation enter into realm of fraud. An agreement procured either- by misrepresentation or by playing fraud is voidable at the option of a party whose consent was so procured. Consequence of contract so procured are spelled out in section 19 of the Contract Act, 1872 which reads as follows: [the learned Judge reproduced section 19 and then continued:] ' The exception to this section as reproduced above provides protection against avoidance of the contract on such pretext, where it is shown that a consenting party seeking to avoid contract on the pretext of misrepresentation or fraud had means to discover the truth with ordinary diligence before entering into a contract. In Ghulam Muhammad v. Fateh Muhammad (1987 CLC 2244) a Division Bench held at page 2250 "that where consent of a party was induced by suggestion of a fact which was not true would not render exchange deed voidable where person deceived had means of discovering, truth with ordinary diligence". As discussed from the evidence above, the witnesses of the respondent who were directly associated in pre-contract happening and post- contract developments of the subject transactions not only had occasion to meet the higher-ups in CAA and in fact undertook frequent visit to Pakistan to "Double Check" the information to prepare its own feasibility report."
' Also as noted above, learned counsel for the defendant has pointed out that the exception to section 19 has been found contrary to the Injunctions of Islam.
32. The first point to note is that it is well settled that the full particulars of the alleged fraud or misrepresentation must be stated and particularized. Reference may be made to Taj Muhammad Khan v. Munawar Jan 2009 SCMR 598 and Ghulam Shabbir v. Nur Begum and others PLD 1977 SC 75.
In the latter case, it was held (while approving observations made in a Privy Council decision of 1915) that "general allegations, however strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice" (pg.
92). Thus, in the first instance, it is crucial to establish the exact representation(s) that were made and then determine whether they amount to misrepresentations within the meaning of sections 18 and 19. The main application contains many general allegations, but does not particularize the representation(s) that allegedly come within the ambit of section 18. During the course of submissions, learned counsel for the defendant sharpened his case and, as I understand it, the defendant's case is as follows. The defendant states that in the negotiations leading up to the compromise agreement, the defendant repeatedly asked the plaintiff to provide it with the details of the account. But such details were not forthcoming. The defendant perforce had to rely on what it was told by the plaintiff, i,e, the statement of account as presented by the latter along with the suit. This statement of account contained many amounts which were not payable by the defendant on account of being illegal, unlawful or violative of the law in various respects. The compromise agreement was, in sum and substance, based on the statement of account. Thus, what was claimed therein, to the extent of being unlawful and illegal, amounted to misrepresentations within the meaning of clauses (2) and (3) of section 18.
33. One point that requires attention is as to how the defendant discovered the alleged misrepresentations. As noted, this was by means of an exercise carried out by chartered accountants on the defendant's behalf in 2008. It was they who identified the various allegedly illegal and unlawful components of the amount claimed by the plaintiff and which were being paid by the defendant in terms of the compromise. However, as submitted by learned counsel for the plaintiff, this averment poses some difficulty. The reason is that the information available with the chartered accountants could not be greater than what the defendant made available to them. But the defendant's own case is that that information was insufficient for it to have discovered the misrepresentations made in 2001, when the matter was compromised. How then could the chartered accountants have reached the conclusions that they did? This question remained unanswered by the defendant.
34. Insofar as clause (3) of section 18 is concerned, learned counsel principally relied on the Zafar Ahmad case (supra) to support his case. However, the facts of that case were critically different from those at hand. The misrepresentation was not made by the creditor (NDFC) of the company (that was being privatized). Rather, the misrepresentation in the compromise agreement was made by the seller of the company, i,e,, the State (or rather, the State entity that held the shares).
This is clear from para 8 of the decision. The seller had innocently, but mistakenly, believed that the company's liability to NDFC was far less than was actually the case. It was this that led the Lahore High Court to conclude that clause (3) was applicable: the seller had, albeit innocently, led the buyers to make a mistake with regard to the substance of the thing that was the subject of the agreement (see paras 11 and 13 of the decision). It is also pertinent to note that the 'thing' that was the subject of the compromise agreement was not the liability towards NDFC; rather, it was the transaction of privatization of the company. Thus, this case is clearly distinguishable on the facts.
35. In my view, clause (3) has no application in the facts and circumstances of the present case.
The point can be illustrated by a simple example. Suppose A owes two debts to B, of which one is barred by limitation. B believes, though mistakenly and innocently, that the debt is not time barred and so represents to A. They enter into a compromise agreement in respect of the debts. A subsequently discovers that the debt was barred by limitation. Can he avoid the contract by reason of clause (3)? I think not. An essential ingredient of clause (3) is that the representation must have caused a mistake to be made, albeit innocently. Now section 21 of the Contract Act provides that a contract is not voidable if it is caused by a mistake as to any law in force in Pakistan". In other words, a mistake of law does not make a contract voidable. (The illustration to this section is of course the converse of the example given above.) In my view, sections 18 and 21 must be read conjointly and consistently. It therefore follows that the "mistake" referred to in clause
(3) cannot be a mistake of law; it can only be a mistake of fact. To conclude otherwise would create an obvious anomaly and inconsistency. In the present context, it is instructive to note the position in England. At common law, a mistake of law did not make a contract void or voidable and likewise, a contract could not be avoided on account of an innocent misrepresentation 'of law. In the famous case of, Kleinwort Benson Ltd. v. Lincoln City Council [1998] 4 All ER 513, the House of Lords abrogated the rule that a contract could not be avoided on account of a mistaken of law.
Subsequently, in Pankhania v. Hackney LBC [2002] EWHC 2441 (Ch), a decision at first instance, it was held, by reason of Kleinwort Benson, that it was no longer part of English law that a contract could not be avoided on account of an innocent misrepresentation of law. It is interesting that the learned Judge noted that there were several Court of Appeal judgments in support of the latter principle (i,e, in relation to misrepresentations of law). Ordinarily, he would be bound by those decisions. However, he concluded that those decisions could no longer be regarded as binding on account of Kleinwort Benson. In Pakistan of course, the position is entirely different. The rule regarding mistakes of law is statutory, being embodied in section 21. In my view, as long as this section remains on the statute book, the position under clause (3) is also as noted above.
36. In the present case, clause (3) would only apply if the plaintiff caused the defendant to make a mistake, though innocently, about the substance of the thing that is the subject of the compromise agreement. Now, the 'thing' that is the subject of the compromise agreement is the claim of the plaintiff, and its substance is the amount payable by the defendant. Therefore, clause (3) would only apply if the plaintiff (though innocently) caused the defendant to make a mistake about what was payable by the latter. But on the defendant's own showing, this mistake could only be by reason of the plaintiff making claims that were unlawful or not legally sustainable, i,e, the plaintiff was claiming amounts that - were, in law, not payable by the defendant. In other words, the defendant's own case is that the plaintiff, albeit innocently and mistakenly, represented to it (through the statement of account) that certain amounts were payable by it. However, as a matter of law, those amounts were not payable and were unlawful and illegal. Thus, the misrepresentation was caused by a mistake of law. Since this is not a mistake that can come within the scope of clause (3), this clause has no application in the facts and circumstances of the present case.
37. I turn to consider clause (2) of section 18. For the defendant's case to come within the ambit of this clause, the defendant must show: (a) there was a duty owed to it by the plaintiff; (b) that duty was breached; (c) such breach was without intent to deceive; (d) the defendant was misled to its prejudice, and (e) the plaintiff thereby gained an advantage. The usual context in which this provision is invoked is where there is a fiduciary relationship or some other reason exists (e.g., the contract being uberrimae fidei) which requires that there be a full or complete disclosure of all the material facts and this duty is breached. It is to be noted that the plaintiff was not (at least at the time that the compromise agreement was entered into) a banking company, but rather a DFI/NBFI.
The relationship of banker and customer (with all its attendant rights and duties) did not, as such, subsist between the parties. The plaintiff may well be regarded as having an obligation towards the defendant that any statement of account drawn up by it would be prepared with reasonable diligence. However, such an obligation could not; in my view, amount to a duty being imposed on the plaintiff to examine the accounts for any possible or potential illegality or unlawfulness. Any such requirement would put the plaintiff (or for that matter, even a banking company in a banking relationship with its customer) in an impossible position. For example, take the case of the penal interest claimed by the plaintiff, which forms part of the compromise agreement. The plaintiff could be regarded as being obligated to exercise reasonable diligence in the computation of the penal interest, but it could be hardly be under a duty to check whether this claim would be violative of
(say) section 74 of the Contract Act, and inform the defendant accordingly. Similarly, the plaintiff could hardly be regarded as being under a duty to check and confirm whether the interest claim was in violation of BCD 13, and inform the defendant of its efforts and findings in this regard. The very first ingredient of clause (2) is therefore entirely missing in the present case. The defendant has been unable to show that any duty was owed to it by the plaintiff as would trigger the application of clause (2).
38. It will also be convenient to consider here the submission made by learned counsel for the defendant that the bargaining position of the parties was unequal and the plaintiff enjoyed a dominant position vis-a-vis the defendant. I have examined the record and especially the correspondence leading up to the compromise agreement, which has been described in the paras supra. I accept the submission by learned counsel for the plaintiff that the agreement was properly negotiated between the parties without any improper influence being brought to bear on the defendant or the plaintiff enjoying any undue advantage. In Chitty on Contracts, Vol. 1 (30th Edition, 2008), the following statement is to be found: "The doctrine of unconscionable bargains seems to be limited in three ways. The first is that the bargain must be oppressive to the complainant in overall terms; the second that it may only apply when the complainant is suffering from certain types of bargaining weakness; and the third that the other party must have acted unconscionably in the sense of having knowingly taken advantage of the complainant." (para 7-129, pp. 662-3)
' In, my view, the compromise agreement is not, "in overall terms", oppressive to the defendant. As pointed out by learned counsel for the plaintiff, even if the penal and capitalized interest components are deleted, that would not affect the defendant, since it would still be paying an even lesser amount if it paid the installment on schedule. No interest was chargeable from the defendant during the relevant period. The provisions of the compromise agreement are hardly such that they should be regarded as "overreaching and oppressive", which would "shock the conscience of the court" (see Alec Lobb Ltd. v. Total Oil (Great Britain) Ltd. [1983] 1 All ER 944). In the Privy Council, in Boustany v Pigott (1995) 69 P. & C.R. 298, 303, Lord Templeman accepted the following propositions as correctly reflecting the law on the point (internal citations omitted): "(1) It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that 'one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience'.
(2) 'Unconscionable' relates not merely to the teims of the bargain but to the behaviour of the stronger party, which must be characterised by some moral culpability or impropriety.
(3) Unequal bargaining power or objectively unreasonable terms provide no basis for equitable interference in the absence of unconscientious or extortionate abuse of power where exceptionally, and as a matter of common fairness, 'it was not right that the strong should be allowed to push the weak to the wall'.
(4) A contract cannot be set aside in equity as 'an unconscionable bargain' against a party innocent of actual or constructive fraud. Even if the terms of the contract are 'unfair' in the sense that they are more favourable to one party than the other ('contractual imbalance'), equity will not provide relief unless the beneficiary is guilty of unconscionable conduct.
(5) 'In situations of this kind it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely that unconscientious advantage has been taken of his disabling condition or circumstances'." (As cited in Portman Building. Society v busangh and others [2000] EWCA Civ 142, per Ward, ' In my view, the case sought to be made out by the defendant does not at all come up to the required standard.
39. The last point that requires consideration is the second paragraph of section 19. This enables the aggrieved party to insist that the contract be performed and that be put in the position he would have been in if the representation had been true. Quite obviously the aggrieved party would be interested in invoking this provision if he stands to gain by it. This will happen only if he stands to benefit from the position that would emerge if the misrepresentation had been true id so then he would insist on the second paragraph being applied. If however his position would be worse off than the second paragraph would have no application. This point emerges clearly from illustration to section 19. Obviously Stood to benefit if the representation that the estate was free from encumbrance were true If the representation were a misrepresentation i,e, was false as was the case then he would stand to lose because he would be acquiring the estate b the plaintiff was that plaintiffs statement of account. However it is only if this representation is false as the defendant claims that at the defendant would be better off The reason is that if the representation id false i,e, is a misrepresentation then the liability of the defendant is less than what if would be if the representation were true. The second paragraph does no therefor apply in the fact and circumstance of the present case.
40. Since none of the provisions of section 18 and 19 invoked by learned counsel for the defend at are applicable it is not necessary to specifically consider the various grounds urged by him (and opposed by learned counsel for the plaintiff) with regard thereto.
41.In light of the foregoing discussion I conclude that the main application cannot succeed.
Accordingly C.M.A 8050/2009 fails and is hereby dismissed As a result the other application C.M.A 8049/2009 has become infructuous and is disposed off as such.