MUSHIR ALAM, CJ. - Through application listed at Serial No. 16 (CMA No. 9078/2012) under Section 151, CPC the defendant No. 1 (United Mobile, a Partnership firm), Mr. Ejazul Hassan (Defendant No. 2, Mr. Javed Shakoor Defendant No. 3), and Mr. Amanullah (Defendant No. 4) seeks an order from this Court to declare that they did not subscribe to the terms and conditions incorporated in order dated 12.4.2012 and seek that the settlement be declared as void and unlawful. It is further prayed that their application under Section '34 of the Arbitration Act, 1940 (CMA No. 3175/2012) may be taken up and disposed of before further proceedings in the matter.
2. In order to appreciate the contentions of Mr. Anwer Tariq learned counsel of said defendants brief background may be helpful 'in disposal of the applications referred to above and other applications being heard today.
3. Plaintiff Abdul Rauf Essa, filed the instant Suit on 29.3.2012 inter alia claiming to be 25% shareholder and Managing, partner of defendant No. 1 originally the defendant No. 1 was registered with Abdul Rauf, Yasin Hussain, Azad Akbar All Lalani, Syed Ejaz Hassan, Muhammad Javaid Muhammad Hanif, Muhammad, Ashraf s/o' Muhammad Younus, Muhammad Ashraf s/o Qasim Khanani @ Ashra Machiara as partner, it seems that after expelling the Plaintiff (Defendant No; 1 was registered (and reconstituted as with Ejazul Hassan Defendant No. 2 Javed Shakoor Defendant No' 3 and Abdul Rauf, the Plaintiff).
4. Plaintiff through instant suit is seeking dissolution of defendant No. 1 on account of various alleged omissions and commissions committed by the defendants in breach of their fiduciary duties and seeking appointment of a Receiver to take over the operation of Defendant No. 1 and all its related companies.
5. The case was taken up on urgent motion and the Court vide order dated 29.3.2012 appointed Official Assignee as Commissioner to visit and inspect the two warehouses identified by the plaintiff and further restrained the defendants from dealing with removing or disposing of the stock in trade therein.
6. In compliance of order dated 29.3.2012, the Official Assignee inventoried the stock in trade in both the godowns, one at Karachi and other at Lahore on 30th and 31st March, 2012 and submitted his report on 2.4.2012 vide Reference No. 1/2012 presented in Court on, 3.4.2012.
7. The defendants on 3.4.2012 moved CMA No. 3173/2012 under Order 39, rule 4 read with Section 151, CPC seeking recalling, discharging or varying the order dated 29.3.2012 mainly on the ground that after order dated 29.3.2012 the plaintiff and his counsel has sent letters to banks, custom departments and other dealers of the defendant No. 1, that halted the running concern and business activities, causing irreparable loss to the partnership firm. The application was taken up on urgent motion on the same date. The Court in consideration of contentions of the defendants that the plaintiff is only 121/2% shareholder in the partnership business and intend to destroy the entire business and sought a clarification from this Court that it has not restrained other Custom Authorities from clearing the consignment or the Bank from trading or the debtors from making payments to Defendant No. 1, the United Mobile. The Court also noted the contentions of the Defendant .That as per last Audit Report, total capital of partnership is Rs. 637,401,183/- out of which plaintiff's shareholding is Rs. 79,675,148/-. Court also recorded the willingness of the Defendants that they are ready to deposit the same with the Nazir to safeguard the interest of the plaintiff.
Consequently, this Court while issuing notice directed that the defendant No. 1 (United Mobile) shall not be treated as dissolved partnership by the custom authorities, bank , or the debtors, the defendants deposited the undertaken amount of Rs. 79,675,14/- with the Nazir on 6.4.2012. While adjourning the case Court directed the parties to appear in person on 10.4.2012, on which date after hearing the learned counsel at length it was observed that perhaps the matter could be settled amicably and was adjourned to 12.4.2012 at 11 a.m.
8. On 12.4.2012 Mr. Khalid Javed Khan, Advocate and Khawaja Shams-ul-lslam, Advocate effected appearance along Plaintiff and defendants and after lengthy negotiation the plaintiff and defendants bargained with each other and in the spirit of order dated 3.4.2012 where the defendants have assessed the value of partnership firm at Rs. 637,401,183/- it was reassessed.
Since the plaintiff was claiming to be 25% partners and the defendants admitted him to be a partner of 12%% share in the Partnership. The Parties directly and with the assistance of their councils engaged in negotiations- exchanged proposal/counter- proposal in presence of their counsel and ultimately the defendants agreed to pay a sum of Rs. 625,000,000/- to the plaintiff in respect of his claim/share in United Mobiles, United Mobile Care Company, United Mobile Company Railway Project, AR Associates, Al-Annas Dubai, Teletec Enterprises, United Mobile Private Limited and all other companies registered or unregistered in the name of plaintiff connected with defendant No. 1.
9. As a part of negotiated settlement, it was agreed between the parties that that plaintiff shall have no concern with trademark, trade name and logos of defendant No. 1 or the agency of Nokia, Samsung and Blackberry nor he shall carry business of Nokia, Samsung and Black berry in the name of United Mobile. All cases in the name of partnership were to be disclosed and the F.I.R, and other litigation were to be withdrawn and stand terminated. The parties agreed that properties worth Rs. 600.000(M) to Rs. 800.0 (M) of defendant No. 1 (United Mobile), which were benami in the name, of plaintiff, would be restored and after making fair assessment properties worth Rs.
150.000(M), same were to be retained in part satisfaction of plaintiff's entitlement of Rs.
625,000,000/-. The amount deposited by the defendant i.e. Rs. 79,675,198/- with the Nazir was agreed to be released and further sum . Of Rs. 95,324,852/ was agreed to be deposited by the defendants on or before 3.5.2012, thus making total cash payment of Rs. 175,0, 000/- and upon inclusion of Rs. 150,000,000/- the worth of properties which the plaintiff was to retain the total payment received was of Rs. 325,000,000/-. Leaving a balance of Rs. 300.000(M, which the defendants agreed to pay in three monthly instalments on 3.6.2012, 3.7.2012 and 30.8.2012 respectively.
10. The godowns of defendant No. 1 which was sealed by the first order of the Court, was also de- sealed. Plaintiff was to write letters to the custom authorities, bank, distributors, Nokia Company and other agencies disclosing settlement of his dispute and with his no claim against defendants or his partners and that defendant No. 1 (United Mobile) will continue its business as a reconstituted firm registered on 21.3.2012.
11. From Order dated 4.5.2012, it is evident that the plaintiff exercised his option of taking four properties worth Rs. 150,000,000/- and the defendant placed a cross cheque of Rs. 95,324,852/- in consequent to the compromise and requested that the same may not be presented and that they would seek its return on furnishing pay order.
12. From order dated 15.5.2012 it appears that four pay orders for total amount of Rs. 95,324,852/- were delivered and the cheque was returned to the defendants. The contents of affidavit for relinquishing trademarks etc were agreed between the parties, the parties also agreed to call the Registrar of Properties from different cities, where the' immovable Properties, are situated may be called for executing necessary surrender/conveyance deeds by the parties as agreed on 12.4.2012.
It was also agreed that Javaid Abdul Shakoor (i.e. Defendant No. 3) and other defendants who holding share in shops in Crown Plaza would execute conveyance in favour of the Plaintiffs.
13. From record it appears that on 4.6.2012, when the first installment fell due request was made by the defendants for time to arrange the installment. Time was granted till 14.6.2012 and on 14.6.2012 eight cheques were submitted but the cheques were not in accordance with the agreement and therefore, defendants were directed to submit cheque or pay order of Rs. 100.000(M). On 15.6.2012 cheque of Rs. 100.000(M) was submitted with the request that the same may not be deposited and they would submit a pay order against this cheque. The matter again came up on 21.6.2012(where Mr. Khawaja Shams-ul-lslam stated that all disputes between the parties have been settled except the defendants have claim against the plaintiff for Rs. 32.100(M) in respect of 0.5 acres plot and certain allegations made by the son of the plaintiff on the face book. He further stated that pay order in the sum of Rs. 100.000 (M) has been deposited, which was released to the Plaintiff.
14. On 11.7.2012, the matter was again taken up on urgent motion to consider CMA No. 6760/12 the Contempt application filed by the Plaintiff alleging non- compliance of the order dated 12.4.2012, whereby Defendant were to pay the Second instalment of Rs. 100/- million due on 3.7.2012 and notices were issued to the alleged contemnors for 13.8.2012.
15. From record it also appear that on 27.8.2012 Khawaja Shamsul Islam withdrew his Vakalatnama on behalf of 4he Defendants 1 to 4 and Mr. Anwer Tariq filed Vakalatnama on their behalf and Mr. FM Javaid filed Vakalatnama on behalf of the Defendant No. 5, and matter was adjourned on their request as order dated 14.6.21 was impugned in High Court Appeal.
16. From record it appears that CMA 3173/2012 (under Section 34 of the Arbitration Act, 1940 filed by the Defendants),. CMA 6760/2012 (under Section 3 of the Contempt of Court Ordinance; filed by the Plaintiff) for violating order dated 12.4.2012 to pay agreed installment of Rs. 100 million each on 3.6.2012, July 2012 and 30.8.2012, and CMA. 9078/2012 under Section 151, CPC was filed by the Defendants No. ) to 4 seeking renouncing of the authority of Khawaja Shamsul Islam Advocate that he had no authority to compound the case and matter of still pending and not disposed of in terms of Order 23, Rule 3, CPC and to decide CMA 3175/2012 under Section 34 of Arbitration Act, 1940. Said Applications were heard on 10.9.2012 and reserved for orders.
17. It appears that on 12.9.2012 defendant No. 2, 3 and 4 filed a statement available at page 11 of the File (part 2) for the first time alleging that the order dated 3.4.2012 and 12.4.2012 was passed in their absence and is being implemented and without any formal compromise application. Through statement adverse aspersions were casted upon a senior Judge of this Court, therefore cited applications matter came up before this Bench for consideration.
18. Adverting to the CMA No. 3175/2012 (under Section 34 of Arbitration Act) filed on 3.4.2012 by and on behalf of the defendants No. 1 to 4 on the ground inter alia (the deponent Muhammad Ashraf Machiyara, who is the Managing Partner of United Mobile Defendant No. 1), seeks to enforce Arbitration Clause No. 20 in the partnership agreement dated 1.7.2011 available at pages 87 to 101 of the Court file which inter alia provided that all disputes between the parties in respect of the conduct of the business of the partnership or any other matter, same may be decided by the Arbitrators nominated with mutual consent of the parties in accordance with the Arbitration Act. Mr. Muhammad Anwar Tariq learned counsel contended that in presence of Arbitration 'Agreement, the suit cannot proceed. It may be noted that' the cited application was filed on 3.4.2012 and at the same time CMA No. 3173/2012 was also filed on the same date seeking recall/discharge of the order dated 29.3.2012. As noted above through order dated 29.3.2012 the Court directed Official Assignee to inventoried the stock and merchandise belonging to the defendant No. 1 United Mobile, which exercise was completed by the Official Assignee and the inventory was placed in Court on 3.4.2012. The Court in consideration of the facts ordered that defendant No. 1 (United Mobile) shall not be treated as a dissolved partnership by the Customs Authorities, Bank or Debtors and the defendants were directed to deposit Rs. I 79,675,148/- as dividend share of the plaintiff with the Nazir of this Court. The amount was deposited on 7.4.2012 through cheque with the Nazir of this Court and the Court on hearing the parties on 10.4.2012 formed an opinion that the matter could be resolved. It appears that the Suit came up on 12.4.2012 and it is recorded:- "After lengthy negotiation parries nave settled their disputes in presence of their learned counsel and seek a compromise decree in the following terms:-
1. Defendants shall pay a sum of Rs. 625,0, 000/- to the plaintiff in full and final settlement of his all claims in respect of United Mobile, United Mobile Care Company, United Mobile Company Railway Project, AR Associates, Al- Anitas Dubai, Teletec Enterprises, United Mobile Private Limited and all other companies registered or unregistered in the name of plaintiff connected with defendant No. 1.
2. Plaintiff shall have no concern or claim with the trade mark or trade name and/ or logos of the defendant No. 1 or the agency of Nokia, Samsung and Blackberry of the defendants, nor shall the plaintiff carry the business of Nokia, Samsung and Blackberry in the name of United Mobile or similar name or any other name in which the defendants are carrying business.
3. All the cases in respect of United Mobile business which have been filed by the plaintiff or against the plaintiff/defendant No. 1 and conducted/defended by the plaintiff shall be the sole responsibility and liability of the defendants. The parties would prepare a list of those cases as well as name of lawyers who are conducting these cases and would handover the list and files to the defendants. The consequences/ outcome of the litigation shall be the fruit or responsibility of the defendants. Besides F.I.R, or any other litigation initiated or filed by the parties against each other shall be withdrawn and in fact, henceforth would stand terminated.
4. It is further agreed that the properties ranging from Rs. 600.000(M) to Rs. 800.000(M) of the defendant No. 1 are in the name of the plaintiff as benami, Pakistan Company Tax Iaw Renwta which are not disputed. Both the parties undertake to properly evaluate those properties and the properties worth Rs. 150.000(M) free form encumbrances and litigations would be given to the plaintiff- in ^ satisfaction of' Rs. 625,0, 000 A. The properties which are of the plaintiff but are encumbered or jointly held with the defendants or their associates would be returned to the plaintiff after getting the encumbrances redeemed, if any.
5. Defendants have deposited a sum of Rs. 79,675,148/- with the Nazir of this Court which shall be paid to the plaintiff forthwith upon proper identification i^nd . Verification. The defendant shall further pay a sum of Rs. 95,324,852/- to the plaintiff (making total case parent of Rs. 175,000;000/-) on 3rd Ma^ 2012 when this matter shall be taken up at 11 a.m.
6. The remaining amount of Rs. 300.000(M) shall be paid by the defendants to the plaintiff in the following manner:-
(a) Rs. 100.000(M) on 3rd day of June, 2012.
(b) Rs. 100.000(M) on 3rd day of July, 2012.
(c) Rs. 100.000(M) on 30th day of August, 2012.
7. The goods sealed/attached by the Official Assignee in compliance of this Court's order dated 29.3.2012 at Karachi and Lahore godowns of the defendant No. 1 shall be released forthwith in favour of the defendants.
8. Plaintiff would- write letters to the Customs Authorities, banks, Distributors, Nokia Company and all relevant Government departments "withdrawing his earlier communications and intimating the settlement of his dispute with the defendants and that the plaintiff has no claim of whatsoever nature against the defendants, or its partners, or its related business and the defendants shall continue their business as a reconstituted firm registered on 21.3.2012.
9. It is further agreed that three offices in b possession of the plaintiff as tenant of Aman Machiyara where welfare work by "Darul Ufta" and "Halal Foundation" is being carried out shall be vacated within three months and handed over to defendants. The defendants in consideration undertake that they would furnish new premises taken by the plaintiff in the same manner as one which would be vacated by the plaintiff.
To come up for further hearing regarding distribution of the properties on 3rd May, 2012, to be taken up at 11 A.M. Both the parties would submit before this Court the list of properties which would be retained and returned by the plaintiff.
The order sheet has been signed by the parties and their counsel."
19. Fr6m record it is evident that the Order Sheet was signed by the Counsels for the Plaintiff and the defendants, as well as by the Plaintiff (Abdul Rauf Essa), Mr. Ashraf Nara Defendant . 5(c) and Muhammad Ashraf Machyara (Managing Partner of the Defendant No. 1 United Mobile and deponent of CMA No. 3175/12 u/s. 34 of Arbitration Act)).
20. It seems that parties in furtherance of the orders dated 12.4.2012, 4.5.2012, 14.6.2012, 15.6.2012 and 21.6.2012 referred to above exchanged properties and consideration. Plaintiff pursuant to order of the Court filed alongwith statement dated 29.9.2012 and place on record list of documents executed in favour of the Defendants in respect of properties claimed to be benami in the name of the plaintiffs share stated to be part of the partnership properties. Valuation was agreed between the parties. The defendants in furtherance of the settlement as recorded on 12.4.2012 paid a sum of Rs. 95,324,852/- through the Nazir of this Court, subject to execution of the documents in favour of the defendants or their nominee by the plaintiff. It seems that the defendants arranged the Registrar of the property from various part of Pakistan to come over to Karachi and obtained various relinquishment/surrender deeds executed by the plaintiff. Defendants continued to appear in Court obtained various concessions, made request for extension of time for payment of the instalments due under as recorded and agreed in the order dated 12.4.2012. At no point in time complained about the conduct either of the Court or their earlier Counsel.
21. On 14.6.2012 Defendants deposited eight (8) cheques of various .Denominations amounting to Rs.
46,99,0, 000/- and Court noted such deficiency and observed by that if the order dated 12.4.2012 is not complied with a garnishee order may be issued.
22. It seems that when the defendants obtained all the concession agreed, relinquishment of Trademarks, Copy Rights, Conveyance of properties held by the Plaintiff in his name and claimed as benami by the Defendants and who it the turn of the defendants came to fulfill and honour their commitments as5 recorded in the Order dated 12.4.2012, which was never challenged or objected till before filing the statement dated 12.9.2012 after more than 5 months. It seems that the Defendants have turned dishonest. Throughout they did not press for the hearing and decision of the Application CMA No. 3175/12 (U/$. 34 of Arbitration Act).
23. Mr. Anwer Tariq Learned counsel for defendants placed reliance on large number of cases to impugn the order recorded by the Court on 12.4.2012 namely the cases of Mst. SAJI DA SULTANA AND ANOTHER v. M/S. EASTERN TRADERS AND 3 OTHERS (PLD 1971 KARACHI 109), CR. APPEAL No. 29/1966 GHULAM MUHAMMAD V. MUZAMMAL KHAN AND 4 OTHERS, CR. APPEAL No. 30/1966 GHULAM MUHAMMAD v. MUZAMMAL KHAN AND 3 OTHERS AND CR. APPEAL No. 31/1966 GHULAM MUHAMMAD V.
MUZAMMAL KHAN AND 5 OTHERS (PLD 1967 SC 317); 1971 SCMR 537, PLD' 1970 SC 241, 1987 SCMR 1983, PLD 1957 (WP) LAHORE 983, PLD 1960 (WP) KARACHI 409, PLD 1967 DACCA 155, PLD 1968 KARACHI 115, PLD 1971 KARACHI 109, PLD 1971 KARACHI 147, 1988 CLC 1169, PLD 1971 DACCA 112, AIR 1933 PATNA 306, PLD 2007 SC 343, PLD 1967 KARACHI 795, PLD 1.967 SC 317, PLJ 1978 KARACHI 208, AIR (34) 1947 LAHORE 13, PLD 1967 LAHORE 811, PLD 1999 KARACHI 25, PLD 1986 KARACHI 1, 1999 MLD 736, PLD 1968 KARACHI 196.
23A- I have carefully perused the cited cases and examined his contentions, In terms of Section 34 of the Arbitration Act, 1940 the Court in cases where any party to the Arbitration Agreement falls out and file a Suit or proceedings then the Court generally in such a situation drives the party back to arbitration provided such opportunity is availed before filing the written-statement and OR before taking any steps in the proceedings and further subject to the satisfaction of the Court that he is still ready and willing to dp things pursuant to the proper conduct of the arbitration. In the instant case as noted above no doubt the application was filed before filing the, written, statement. One of the important considerations that always carries weight with the Court is the conduct of the party pressing into service v provisions of Section 34 of the Arbitration Act. From the record it appears that since the defendant followed up the application CMA No. 3173/2012 (Under Order 39, Rule 4'
CPC) for variation of the order passed on 29.3.2012 the application for arbitration was not pursued rather parties entered7 into negotiation and resolving the dispute themselves as recorded vide order dated 12.4.2012. It has come on reford that the defendants have drawn benefit out of such settlement/understanding arrived by and between the Parties in presence their respective advocates, Court and, even the order sheet has been signed by the Plaintiff Abdul Rauf Essa, Ashraf Nara (Defendant No. 5(c), defendants Ashraf Machiyara (Managing Partner of United Mobile, the Defendant No. 1) he is also partner of Defendant No. 5 and various other firms and business entities.
Both Ashraf Machiyara and Ashraf Nara are now the partners of United Mobile the defendant No. 1.
They are also partners Of the Teletec, Enterprises the defendant No. 5. Such record shows that it was not merely a Suit between the plaintiff and the defendant No. 1 of partnership concern but against a composite business concern including United Mobiles, United Mobile .Care Company, United Mobile Company, Time Telecom, United Mobile Private Limited various parties. Even the defendants through Mr. Ashraf Machiyara filed CMA No. 5384/2012 under Order 39, Rule 2(3), CPC alleging contempt by the plaintiff in respect of the consent order dated 12.4.2012, 4.5.2012 and 15.5.2012. It was claimed that plaintiff has received Rs. 17.5 crores from the defendants and has not executed retirement from the companies and the firms mentioned above. Even from the fresh partnership purportedly drawn after expelling plaintiff Abdul Rauf on 1.6.2012 and it was recorded vide order dated 12.4.2012 that the plaintiff Abdul Rauf Essa ceased to be partner of the firm with effect from 12.4.2012. It may be observed that merely existence of arbitration clause does not take away the jurisdiction of the Court. It merely provides prerogative to a-party tp the arbitration clause, tp enforce and drive the other party, to the arbitration, but once the defendant in a suit or proceedings submits to the jurisdiction of the Court, take steps into the proceedings, draws benefit of the consent orders rather filing application to seek enforcement of the settlement as recorded by the Court, then such parties cannot turn around and seek enforcement' of the arbitration clause.
24. In the instant case as could, be seen from the detailed narrative above that not only the defendants in furtherance of the order dated 12.4.2012 stepped Into proceedings, took various step, paid a substantial amount but have also obtained almost 100% benefit from the plaintiffs,; now they cannot be allowed to press-into service Section 34 of the Arbitration Act through CMA 3175/12.
Another reason that, do not favour Arbitration is that the Arbitration Clause contained in the deed between the Partners of Defendant No. 1, is not binding between other parties to the dispute. Even if it is presumed that the learned Counsel had no authority to compound the suit, which has not been established as the record shows that the learned counsel -had the power to compromise.
Defendants 1 to 4 have failed to show that Mr. Ashraf Machyara and Mr. Ashraf Nara both of whom have signed the order sheet dated 12.4.2012 had no authority on behalf of the Parties to the suit, they are Partners and beneficiaries of the settlement recorded by the Court on 12.4.2012. It is settled law that acts of partners bind the other partners pf the firm, if at all it is a case of Defendant No. 2 to 4 that the partners have breached the fiduciary duties they may file suit for damages against such partners. It is has come on record that beside the parties to the suit rights and interest of number of other business concerns and persons is associated with the subject controversy who are not party to the Arbitration clause, therefore, I do hot consider now to drive the Plaintiff to resort to arbitration, therefore, the application under Section 34 of the Arbitration Act, 1940 (CMA No. 3175/2012) as Well as CMA 9078/12 filed by the Defendants No. 1 to 4 are hereby dismissed.
25. Mr. Muhammad Anwar Tariq learned counsel for defendant contends that the order dated 12.4.2012 does not fulfill the- requirement of Order 23, Rule 3, CPC. It is stated that in a very unusual manner the order was only signed by Ashraf Nara and Ashraf Machiyara and not. The other defendants. It was stated that other parties to the suit are not privy to such settlement which is claimed to be a settlement or compromise. Mr. Khalid Javed learned counsel for plaintiff contends that it does not be befit the defendants No. 1 to 4, now to urge that the order dated 12.4.2012 is not signed by all the parties do the suit. According to him it was signed by two major parties, which were negotiating the matter on behalf of all the parties and order sheet was also signed by their respective counsel. Mr. Khawaja Shamsul Islam has signed the order on behalf of all the parties. He had the authority to compromise. Mr. Shamsul Islam who was also in attendance when the matter was taken up earlier as well vehemently emphasized that all the parties were in full know of the matter and on their behalf the order was followed by the learned Judge against whom the aspersion is casted. It is stated that it was only when the defendants defaulted after obtaining the full benefit, changed the counsel and have filed the statement. It was urged that only Ejazul Hassan Defendant No. 2, Javed Shakoor defendant No. 3 and Amanullah defendant No. 4 filed the statement, showing distrust on the learned Senior Judge of this Court. Certainly the matter was serious and therefore, it was brought up before this bench. As note while discussing matter in the narrative above that the defendants have drawn benefit of the order now again turn around to seek shelter behind Order 23, Rule 3, CPC. It may be observed that the Court is fully seized and competent to record settlement and it is not always necessary that settlement are recorded under Order 23, Rule, 3 CPC therefore, contention of Mr. Anwar Tariq that the Order 23, Rule 3, CPC are not complied with is without substance. It is stated that even if such be the case, it is a case of Novation of Contract and the plaintiff should seeks its enforcement under Section 62 of the Contract Act, and may file a separate suit for enforcing a contract.
26. Contentions are self-destructive on the one hand the defendants disown the settlement as recorded on 12.4.2012 and on the other seek shelter behind Section 62 of the Contract Act. If the arguments of Mr. Anwer Tariq is accepted on its face value, than it is manifest that the defendants admit the settlement recorded on 12.4.2012 but question its implementation by this Court in the manner it is being done.
27. When parties to a suit or legal proceedings makes a settlement before the Court settling some of the issues in the manner as may be conducive and proper to the satisfaction of the Court one cannot say that it was an adjustment .In terms of Order 23, Rule 3, CPC or that it was innovation of the contract under Section 62 of the Contract Act. It is merely a settlement in furtherance of final resolution of the dispute before the Court. Even otherwise, in terms of Section 89-A of the Code of Civil Procedure, 1908, now depending on the circumstances of the case, and in order to secure the expeditious disposal of case and securing the ends of justice and to bring and end the dispute, the Court may adopt with the consent of the parties such alternate dispute resolution mode including mediation and reconciliation, In this case this is what the Court has embarked upon and undertaken. Record shows that not only the parties agreed and engages in deliberation to arrive at a just resolution of dispute. The very fact the order dated 10.4.2012 records, "after hearing the learned counsel and parties at length in my opinion the dispute perhaps can be settled amicably notwithstanding. To come up for further hearing on 12.4.2012." On 12.4.2012 it was recorded, "after lengthy negotiations parties have settled the dispute in presence of their learned counsel and seek a compromise decree in the following terms" and thereafter the Court recorded the terms of settlement as arrived at between the parties and reproduced in extenso in Paragraph 18 above, in the narrative. It may be noted that the figures and the valuation of the properties and shares of the Parties was not worked out by the Court but worked out by the parties themselves. The figures that have been given by the parties and recorded in the order and in furtherance thereto, the parties have acted, exchanged properties and so also the consideration for mutual benefits including the Defendants No. 1 to 4.
28. It appears that the plaintiff relinquished all rights in respect of at least 54 shops, at Karachi, Rahimyar Khan, Lahore, Multan, Islamabad and Hyderabad, besides surrendered copyright, trade mark in 51 in number copyright 8 in number and merchant cards 19 in number. Signed and delivered various letters, surrendering right and interest in favour of the defendants. No. 2 Mr. Ejazul Hassan who is one of the signatory on the Order Sheet dated 12.4.2012 and defendant No. 2 in statement states that he has not privy to the order dated 12.4.2012. The detailed list of the documents executed and properties surrendered in favour of the defendants and their nominee is available at pages 353 to 719 of the file and some of the documents were also executed in favour of Mr. Javed Shakoor the defendant No. 3 and Mr. Amanullah, the Defendant No. 4 as well. It is thus manifest a dishonest statement has been filed by Ejazul Hassan, Javed Shakoor and Amanullah who are the beneficiaries of the order dated 12.4.2012. Having drawn the benefit of the settlement now cannot turned around to malign the Honourable Judge when after hearing the cited application, matter was reserved the orders. It may also be noted that said signatories to the statement have challenged the order dated 14.6.2012 passed by the learned single Judge whereby the Court directed the defendants to abide by the terms setout and agreed between the parties and recorded by the Court and on failure they were cautioned that garnishee order may be passed to secure the amount agreed. Defendants No. 1 to 4 filed appeal being HCA No. 116/2012, however they purposely did not challenge the order dated 12.4.2012 at any point in time. They only approached, when the Court cautioned them to enforce the order. It may be observed that Court has inherent jurisdiction to enforce its orders passed in furtherance of cause of justice rules of procedure are to assist the Court and not to impede the cause of justice. The Court has inherent jurisdiction to enforce its order in exercise of its inherent jurisdiction in the manner as may be expedient to farther the cause of justice. Court will not allow any party to take shelter behind the procedure (one may also see BEHARI JIG v. DAUJI (AIR 1957 ALLAHABAD 266).
29. Once the signatories to the statement filed on 12.9.2012 have drawn benefit of the order passed by the learned Senior Judge on 12.4.2012 they have acquiescence to the order, more particularly when their duly constituted agent Mr. Khawaja Shamsul Islam has fully own the responsibly on their behalf besides other partners and beneficiary of the orders Ashraf Nara and Ashraf Machiyara who are also Partners of Firms Defendants No. 1 and 5, they are now estopped from challenging the same. As observed earlier that this Court has inherent jurisdiction to implement its own order, therefore CMA No. 7278/2012 under Section 151, CPC is granted. Since in all a sum of Rs. 200 Million in two instalments of Rs. 100 million each, had fallen due on 3rd July, 2012 and on 30th August, 2012 in terms of settlement recorded on 12.4.2012 has not been paid by the defendants, therefore the accounts of the Defendant No. 1 to the extent of Rs. 200 million is attached order may be issued against the Banks maintaining the account of Defendant No. 1 In case the amount in the account of the Defendant No. 1 is short of the amount attached, the stock in trade of the Defendant No.. 1 to such an extent be attached and the Official Assignee to execute the order. As noted above the Court is fully competent to enforce and execute the orders passed by it during pendency of the proceedings. Till such time the amount is deposited the documents executed by the plaintiff in favour of the defendants and or their nominee may not be returned or resorted to them by the Nazir. CMA No. 7278/12 under Section is disposed of in above terms.
30. As observed in order dated 1.10.2012 tendency to malign Court and Honourable Judges has increased, Bar Associations and Bar Councils are not playing role to discipline the lawyers and educate them. It is a very serious matter to malign a learned Senior Judge and to cast aspersion against him, more particularly when a party is in default and the matter was reserved, the party sensing that some serious order, is likely to be passed, in an attempt to get the case transferred from said Judge, made such statement. The very fact that when the Court has cautioned the defendants to honour the commitment made in the order failing which garnishee order may be passed they have adopted such tactics therefore, in my humble opinion Defendant Nos. 2 to 4 have committed prima facie gross contempt of Court. Let Show-Cause notice be issued to the Defendant Nos. 2 to 4 to show-cause as to why contempt proceedings may not be drawn against them and may not be committed to contempt in accordance with law, CMA 6760/12 to be decided alongwith the contempt notices issued against the said defendants.
31. The Order passed herein to remain suspended for 15 days to enable the parties to avail the remedy of appeal and be implemented on expiry of such period by the Official Assignee.