' SALMAN HAMID, J.---United Bank. Limited, (Appellant), filed a banking recovery Suit No,160 of 1996, (Banking Suit) under section 6 of the erstwhile Banking Tribunal Ordinance, 1984, before the banking tribunal, Karachi, (Banking Court), against Exim International, (Respondent No,1), Abdul Khaliq Rehmani, son of Abdul Samad Rehmani, (Respondent No,2), Moin Khaliq, son of Abdul Khaliq Rehmani, (Respondent No,3), Arif Lateef, son of G.H. Lateef, (Respondent No,4), Mrs. Rabia K. A. Malik, wife Of Dr. Khalid Ahmed Malik, (Respondent No,5) and National General Ihsurance Company Ltd., (Respondent No,6). Service of Banking Suit, among others, was also effected on the referred respondents through daily Nawa-e-Waqt, Karachi of 1-11-1996. Vide Order dated 25-11-1996 the respondents, aforementioned, were ordered to be proceeded ex parte. Judgment was announced on 22-1-1997; Execution Application No,115 of 1997 followed thereafter for enforcement of decree by attachment and sale/auction of the immovable properties of the respondents Nos.4 and 5, detailed hereinafter.
2. Confronted with such a precarious situation respecting their immovable properties, which they never mortgaged with the appellant the respondents Nos.4 and 5 contested. Respondent 5 filed application under section 12(2) Civil Procedure Code on 6-2-1999, which was opposed by the appellant but it was allowed on 11-11-2002. Respondent No,4 alsO filed application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance 2001, (2001 Ordinance), read with sections 12(2) and 151, C.P.C. On 1-10-2003 for setting aside ex parte judgment/decree, which application having been allowed, the respondents No,4 preferred leave to defend application, on 23-8-2004, which too by consent was allowed on 25-8-2004, whereafter the respondent *No,4 led evidence. Leave to defend application was also preferred by the respondent No,5 on 1-12-2002, which, by consent, was allowed on 27-3-2003.
3. Mrs. Nilofar Mashhadi, wife of Jawwad Hussain Mashhadi, (Respondent No,7) and Mrs. -Shahnaz Imran, wife of Muhammad Imran, (Respondent No,8) -- the two daughters of respondent No,5 preferred application under Order I, Rule 10, C.P.C. On 2-12-2002 for becoming party to the Banking Suit inasmuch as respondent No,5 prior in time to the alleged mortgage of her immovable property, (mentioned hereinafter) had gifted the same to such respondents, which application by consent was allowed on 24-5-2010. These respondents were arrayed as defendants Nos.7 and 8 in the Banking Suit. Leave to defend applications in April 2003 were preferred by these newly added defendants, which by consent were allowed on 20-4-2004. Evidence was led by respondents Nos. 7 and 8 in the Banking Suit through their attorney, Syed Jawed Hussain Mashhadi, who was also the attorney of the respondent No,5.
4. Banking Suit after evidence of the respondents 4 to 8, save respondent No,6 was dismissed by the Banking Court in terms of the judgment dated 30-6-2005, (Impugned Judgment). Present Appeal was filed amongst others on the grounds that it, (Impugned Judgment) was an outcome of hear-say evidence; it was erroneous when it comes to the finding on Order VII, Rule 1(c) and 9(1A)
(b), C.P.C.; that no evidence of fraud and forgery . Was produced by the respondents Nos.4, 5,. 7 and 8 in respect of general power of attorneys, memoranda of deposit of title deeds and mortgage deeds in respect of the two immovable properties of such respondents; that by way of Impugned Judgment, the Banking Court dismissed the Suit as against these respondents without any basis or justification, more particularly, when the documents those were challenged were never sought to be cancelled by respondents Nos.4, 5, 7 and 8. It was therefore prayed that the Impugned Judgment and decree dated 30-6-20015 be set aside.
5. On the other hand the learned counsel for the respondent No,4 supported the Impugned Judgment and out-rightly opposed the Appeal, amongst others, on the grounds that the respondent No,4 at no stage of time mortgaged his immovable property bearing Survey No,244, Deh., Drig Tapo Malir, admeasuring 9922 square yards, Karachi, (Malir Property) by himself or through purported attorney, Moinudin, son of Sharfuddin and that General Power of Attorney dated 6-4-1995 showing respondent No,4 giving power to Moinudin, son of Sharfuddin was forged and fabricated. Particulars of respondent No,4 on the purported Mortgage Deed dated 6-4-1995 in respect of Malir Property and on Power of Attorney dated 6-4-1995 were false inasmuch as his father's name was not as mentioned therein and that the NIC number that was disclosed was of a person other than respondent No, 4's and was of a lady, namely Mst. Mariam Khatoon. It was also mentioned that such falsity was vouched by the officials of NIC .(NADRA); by Revenue Department/Autliorities; Registrar's Office and FIA who came into the witness box and deposed -in favour of the respondent No,4 which could not be shattered by the appellant/counsel for the appellant who represented them in the Banking Suit and that witnesses from Revenue and NADRA were not even cross-examined. Therefore it was asserted that on such evidence and appellant's failure to dislodge the same, Banking Court decided the Banking Suit against the appellant and in favour of respondent No,4.
6. Learned counsel for respondents Nos.5, 7 and 8 also supported the Impugned Judgment and vehemently opposed the appeal. It was argued that all the original title documents of the immovable property i,e,, Plot No,33, Block-6, measuring 2000 square yards PECHS, Karachi, (PECHS Property) were in the possession of the respondent No,5/respondents Nos.7 and 8 and that the financial assistance that was extended by the appellant to respondents Nos. 1 to 3, when it comes to the PECHS Property based on forged and fabricated documents. It was also asserted that the respondent No,5 at no stage of time executed any general power of attorney or Power of Attorney dated 17-5-1994 in favour of Moinudin, son of Sharfuddin, which Power of Attorney was also not produced. Therefore the question of Moinudin signing and/or creating mortgage of PECHS Property on behalf ,respondent No,5 on such basis, it was argued, does not arise. It was also urged that the appellant apprehended procuring the securities towards the Finance to the respondent No,1 through forgery and it was also doubted that the same were managed and manoeuvred in connivance with and/or in complicity with their own staff members and that loss had been caused, lodged F.I.R. (available at page 384 of the paper book).
7. Arguments heard. Record/paper book perused.
8. It may be observed that the learned counsel for the appellant at the very outset upon our query as to the appellant's claim against respondents Nos. 5, 7 and 8, in view of the above exposition, candidly and unequivocally stated that the appellant does not press the appeal against them, (respondents Nos. 5, 7 and 8).
9. As far as the appeal against respondent No,4 was concerned, it was argued mostly by giving emphasis to the applicability of provisions of Order VII, Rules 1(c) and 9(1A)(b), C.P.C. In that such were only directory and not mandatory and even if these provisions were not followed in letter and spirit, the same were not fatal. Suffice to observe that after grant of applications moved by respondents Nos.4 and 5 under section 12(2), C.P.C. And section 12 of the 2001 Ordinance, and thereafter they having been given an opportunity of contesting the matter by to defend applications and after grant thereof by consent they also led evidence, compliance or non- compliance of provisions of Order VII, Rules 1(c) and 9(1A)(b), C.P.C. Went into oblivion and were of not much consequence inasmuch as respondents Nos.4 and 5 safeguarded their Interest. We therefore would not like to dwell on it and leave the same to. Be looked into and decided at some other appropriate time.
10. This brings us to the examination of veracity of the evidence that was brought before the Banking Court by respondent No,4 in respect of the Malir Property and in respect of PECHS Property by respondent No,5/Respondents Nos.7 and 8 in that it was argued by their respective counsel that these two immovable properties were never mortgaged by them. Respondent No,4 to prove that Malir Property was never mortgaged by him or that Power of Attorney dated 6-4-1995 was not executed by him, produced official witnesses who came forward and deposed in his favour which amongst others were witnesses from NIC (NADRA), namely Ahmedullah who deposed that NIC No,501-73-210341 was NIC of one Mst. Mariam Khatoon, daughter of Hyder Ali in their record and that such was not of respondent No,4. This witness also produced other documents like Form 'B', (Exhibit 4) etc. It is patent from the perusal of cross-examination of this witness that he was not cross-examined by the counsel for the appellant in the Banking Suit. Similarly, a witness from Registrar Officer, Microfilming namely, Matinuddin also came forward and deposed in favour of the respondent No,4 by stating that no one came forward for microfilming. Again this witness was also not cross-examined. Mr. Muhammad Shafi also came forward as a witness from the Board of Revenue and produced allotment orders (Exhibits 8 and 9) to show that the Malir Property stood in the name of respondent No,4. A look in the cross-examination of this witness would show that the learned counsel for the appellant in the Banking Suit could extract nothing adverse against the respondent No,4. We may also note that Mortgage Deed dated 6-4-1995 (page 36 of the paper book), in respect of Malir Property shows the name of respondent No,4 as a witness; whereas the Power of Attorney of the same date i,e, 6-4-1995 shows that respondent No,4 executed it on such date, wherein Moinudin was shown as a witness. This anomaly itself shows nothing but fraud and forgery and vitiates the two documents. It was also patent from the record that the Banking Court on its own under the provisions of Article 84 of the Qanun-e-Shahadat Order, 1984 looked into the signatures of the respondent No,4, as available, on the Mortgage Deed and Power of Attorney, both dated 6-4-1995 and compared the same from the ones available on respondent No,4's Vakalatnama, leave to defend application and other documents and came to the conclusion that the ones appearing on the Deeds and Power of Attorney were forged.
11. Adverting to the evidence of the respondents Nos.5, 7 and 8, we may note that the appeal was not pressed against them and therefore such require no discussion or finding. It is, therefore, patent that the Banking Court after looking at above aspect of the matter, dismissed the Banking Suit against the respondents Nos. 4, 5, 7 and 8 which does not require any interference of this court.
These are the reasons for dismissal of this appeal on 27-9-2011