' AZIZ-UR-REHMAN, J.---By means of this order I intend to dispose off C.M.A. No,8617 of 2009, filed by the Plaintiff Bank under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C., whereby the Plaintiff Bank is seeking attachment before judgment of an immovable property bearing No,99, CF- 1/5, Clifton, Karachi, ['subject property'] belonging to M/s Commerce (Pakistan) Private Ltd.
[Defendant No,6 herein] inteInterglober alia, on the following facts and grounds:-
2. The Plaintiff Bank, filed the instant suit for recovery of Rs,258,846,552/- with cost of funds against the Defendants including the Defendant No,6 under section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001] with the following prayers:- A. A decree for payment of sum of Rs,258,846,552/- with cost of funds at the rate fixed by the State Bank of Pakistan from the date of default till realization; B. Attachment and sale of the Hypothecated properties and Assets of the defendant No,1 as specified in Paragraph 5 above and annexures "B" to "B-7".
C. Attachment and sale of the mortgaged property of Defendant No,5 specified in Paragraph 6 above and annexures "C" to "C-3".
D. Cost of suit may also be awarded.
E. Any other relief that this Honourable Court may deem fit and proper in the circumstances of the case.
3. No doubt, it is undisputed position that the 'subject property' is owned by M/s. Interglobe Commerce (Pakistan) Private Ltd who per Bank's stand, is a guarantor in the instant suit vis-a-vis the outstanding amounts payable by M/s. Callmate Telips Telecom Limited [Defendant No,1 herein], and in its' such capacity has been joined in the instant suit as Defendant No,6. The instant suit, it is needless to say, has already been decreed on 10.03.2008 against the 'principal customer'- Defendant No,1 who was wound-up in J. Misc. No,05/2008. The Official Assignee, Karachi is the official Liquidator of the Defendant No,1 Company. The relevant portion of Order dated 10.03.2008 whereby, the present suit was decreed against Defendant No,1/principal customer, reads as follows: "Learned counsel for the plaintiff stated that defendant No, 1 has been served by all modes as directed by this court but he any application for leave to as such against him, the suit is to be decreed under section 1 of subsection (10) of Financial Institutions (Recovery of Finances)
Ordinance, 2001. The record shows that on 15-02-2008 the plaintiff has produced the receipts of Courier, Registered Post A.D. And also publications in newspaper i.e, Daily "Dawn" and Daily "fang" for the date of hearing on 17-01-2008. But order was not passed to decree the suit as the statutory period not completed. None present for defendant No,1 nor intimation is received and nor he filed any application for leave to defend as such suit stands decreed as prayed except the para C of prayer Clause of the plaint against the defendant No,1 in light of under section I of subsection (10) of Financial Institutions (Recovery of Finances) Ordinance, 2001. [Underlining is mine] 'Mr. Saalim Salam Ansari advocate for defendants Nos.2 to 6 who has filed leave to defend as well as written statement and also three C.M.As. Nos.1605/2008 to 1608/2008.
Mr. Abdul Sattar Lakhani Advocate for plaintiff stated that it is nbt necessary to file any replication on application for leave to defend as well as the pending C.M.As. And can be straight away argue.
However, again stated that if this court adjourned the case for hearing of leave to defend of defendants Nos.2 to 6 as well as their applications mentioned above then he may file replication.
In the meantime, if he wants to file replication he may file. [Underlining is mine]
4. Like-wise, against Defendant No,5/Mortgagor, an 'INTERIM DECREE' has also been passed vide order dated 22.12.2014. The relevant part of order dated 22.12.2014 reads as follows:- "Moreover, the defendant, No,5 has also filed a suit against the plaintiff being suit No, B-38 of 2008, wherein which admitting her liability to the extent of Rs,18.2 million, has demanded foreclosure of mortgage upon payment of the said amount. Meaning thereby, that the defendant No,5 admits her liability to the extent of Rs,18.2, about which there is no doubt. There is no doubt with regard to the fact that as well the part of the sum claimed against the defendant No,5 by the plaintiff is disputed by her. Under section 11(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 it is provided that if the Court is of the opinion on consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, that the dispute between the parties does not extend to the whole claim, or that part of the claim is either undisputed or is clearly due, it can, while granting leave with respect to the disputed amounts, can pass an interim decree in respect to the Financial Institutions (Recovery of Finances) Ordinance, 2001 is reproduced as under:- "11. Interim Decree. (1) If the *Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed, or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff"
Thereto, I have come to the conclusion that admittedly the amount of Rs, 18.2 million is an admitted loan by the defendant No,5, for which I decree the suit against defendant No,5 in terms of section 11 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 along with cost of funds accrued thereon upto-date, and grant unconditional leave to defend the suit to the defendant No,5 in respect of disputed amount C.M.A. No,I606/2008 disposed of accordingly."
[Underlining is mine]
5. In the 'SUPPORTING AFFIDAVIT' of C.M.A. No,8617 of 2009, being an application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C., it has been averred that the Defendant No,6 is intending to 'dispose off the 'subject property' purportedly with an intent to obstruct or delay the execution of the decree that may be likely passed against the Defendant No,6 amongst others in the present suit. According to the Plaintiff s version, the 'subject property' was earlier mortgaged with the Plaintiff Bank in the sum of Rs,65 million against Finance Facilities, granted to and availed by Defendant No,6 herein in its' capacity as a 'PRINCIPAL CUSTOMER' of Plaintiff Bank. In this suit the Defendant No,6 has, however, been joined in its' alleged capacity as a GUARANTOR and not as a 'MORTGAGOR'.
6. Upon failure of Defendant No,6 to pay the claimed outstanding amount, the Plaintiff Bank resultantly was compelled to file Suit No,B-81 of 2009 [Bank Alfalah Ltd, Karachi v. M/s Interglobe Commerce (Pakistan) Private Ltd. ] against Defendant No,6 in its capacity is a 'PRINCIPAL CUSTOMER' and others in Banking Court-III, at Karachi. Upon service, the Defendant No,6 herein amongst others, filed their 'LEAVE-TO-DEFEND APPLICATION' [s] wherein not only, the liability was admitted but upon payment thereof, redemption of the 'SUBJECT PROPERTY' herein was also sought.
According to the Plaintiff Bank's version and as per 'VALUATION REPORT' dated 16.02.2009 of M/s. Sadruddin Associates, the market value of the 'subject property' is Rs,135,424,724/-. According to the Plaintiff Bank's stand, the Defendant No,6 herein is in a 'drill.' to 'dispose off the aforesaid property upon releasing the 'ORIGINAL TITLE DOCUMENTS' and thereafter, by transferring the same in favour of a third party viz. SZABIST-THE APPLICANT/PROPOSED INTERVENOR herein. According to the Plaintiff Bank if, the 'subject property' is 'disposed off'/' sold out' then the Plaintiff Bank as Decree- holders against Defendant No,1 [principal customer] and Defendant No,5 [Mortgagor] would be not able to get the satisfaction of the 3RD DECREE which is likely to be passed in the instant Suit No,B- 01/2008 against the Defendant No,6 in its' CAPACITY AS GUARANTOR amomgst others Guarantors.
The Plaintiff Bank as per Bank's version will be left with no 'sufficient security' rather will be deprived of the fruit of the 3RD DECREE which is likely expected to be passed in the instant suit, indeed, after recording of the evidence. For ready reference the relevant part of the LEAVE GRANTING ORDER dated 20.04.2009, whereby, Defendants Nos.2, 3, 4 and 6 were granted 'UN-CONDITIONAL LEAVE TO DEFEND THE SUIT' reads as follows:- "For the reasons discussed above, keeping in mind the above cited judgment objections raised by the defendant in both suits. I am of the considered view that the defendants Nos. 2, 3, 4 and 6 in suit No, B-1/2008 and defendant No,1 in Suit No, B-38/2008 have made out a prima facie case for grant of unconditional leave as the object received require detailed investigation through recording of evidence. Consequently, the leave to defend is granted to the defendants Nos. 2, 3, 4 and 6 in Suit No,B-1/2008 and in Suit No,B-38/2008 to the defendant No,1 for adjudication of both suits on merits. Leave to defend application in both suits are treated as written statement and parties are directed to file their propose issues for the purpose of determination of the points of law and facts involved in the matter." [Emphasis Supplied]
7. Upon service of the present application under Order XXXVIII, Rules 5 and 6 read with section 151, C.P.C. [C.M.A. No,8617/2009], a detailed 'COUNTER-AFFIDAVIT' was filed by the Defendant No,6 herein, in answer to the aforesaid application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C. [C.M.A. No,8617/2009] wherein, almost all the averments/assertions made by the Plaintiff Bank in the APPLICATION and its' SUPPORTING AFFIDAVIT', were vehemently denied as being false and incorrect.
8. In the 'COUNTER AFFIDAVIT', it was specifically denied that the 'subject property' is liable to be attached before judgment. According to Defendant No,6's stand, since the 'subject property', is neither mortgage nor otherwise, under any charge of the plaintiff's bank as such without having any interest in the 'Subject property' it cannot be attached merely at the whims of the Plaintiff Bank.
Moreover, the 'subject property' is also not a 'subject matter' of the instant suit bearing No,B- 01/2008 [Bank Alfalah Limited v. M/s. CALLMATE TELIPS TELECOM Ltd. And others]. Per Defendant No,6's stand, the 'subject property' is admittedly belonging to a PRIVATE LIMITED COMPANY i.e, M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD who has been impleaded in the instant suit in its' capacity as a GUARANTOR on the basis of alleged 'CORPORATE GUARANTEE' which however, besides being disputed has been seriously challenged by Defendant No,6 in the instant suit. The Defendant No,6 amongst other GUARANTORS, obviously on account of a genuine and ex facie case vis-a-vis the alleged 'Corporate Guarantee', has already been granted 'UNCONDITIONAL LEAVE TO DEFEND THE SUIT' vide order dated 20-04-2009 passed in the present suit. In the aforesaid 'LEAVE GRANTING ORDER', it has been expressly observed/ noted down that a CORPORATE GUARANTEE without a RESOLUTION OF BOARD OF DIRECTORS [In short BoD] is of no legal value and/or of any binding effect.
The 'UNCONDITIONAL LEAVE TO DEFEND THE SUIT' already granted in favour of the Defendant No,6 amongst others [i.e, Defendants Nos.2, 3 and 4] in this suit renders the so-called likelihood of passing of any decree very much doubtful. The Defendants Nos.2, 3, 4 and 6 in suit No,B-1/2008 have undisputedly, made out a PRIMA FACIE CASE for grant of unconditional leave to defend the suit, which per leave granting order requires detailed investigations through recording of evidence.
Admittedly, the leave to defend has already been granted to the Defendants Nos. 2, 3, 4 and 6 in Suit No,B-1/2008 and in Suit No,B-38/2008 to the defendant No,1 for adjudication of both suits on merits. LEAVE TO DEFEND APPLICATION[S] in both the suits have also been treated as WRITTEN STATEMENT[S] and parties herein have also been directed to file their 'PROPOSE ISSUES' for the purpose of determination of the 'serious dispute' involved in the matter[s]. Needless to say, 'proposed issues' are yet to be settled in the suit[s].
9. Per Defendant No,6' s assertions, it never stood as a guarantor of the amount against the 'principal customer' viz. M/s. Callmate Telips Telecom Limited. The so-called guarantee allegedly been executed by the Defendant No,6 is, no doubt, under a SERIOUS DISPUTE between the concerned parties and regarding such a dispute, unconditional leave to defend the suit, has already been granted to the defendant No,6 amongst others Guarantors/Defendants Nos. 2, 3 and 4 inter alia on the plea that guarantee[s] is/are inchoate, not valid and 'prima facie' fabricated document[s] which per leave granting order requires evidence in its' proof, of course, in a sufficient manner. Needless to say, against Defendants Nos.1 and 5/Mortgagors a 'FINAL DECREE' and an 'INTERIM DECREE' IN TERMS OF SECTIONS 17 and 11 OF F.I.O., 2001 respectively, have also been passed.
10. As far as passing of ex parte 'FINAL DECREE' against Defendant No,1 herein is concerned, per Defendant No,6's version, it does nothing with the answering defendant No,6. Like-wise, the contention of the plaintiff bank that the 'ex parte decree' passed against the 'principle customer'/Defendant No,1, is bound to remain unsatisfied perhaps for and on account of 'insufficient securities', is concerned, the same besides premature and afterthought is a matter between the PLAINTIFF BANK and DEFENDANT NO.1. Per Defendant No,6's stand if, the securities are insufficient, as alleged by the Bank, then the bank at the most may go forward and initiate appropriate action if, the Plaintiff Bank so desires against the concerned officers and/or its' valuators and all other concerned, if any, who have taken insufficient securities as alleged from Defendant No,1 [principal customer] for advancing the subject finance facility[ies]. In any event, it is for the Plaintiff Bank to decide what action needs to be initiated. Nevertheless, according to Plaintiff Bank's stand and as reveals from the available record, the securities against which facilities were advanced are QUITE SUFFICIENT.
11. No doubt, the 'subject property' was admittedly mortgaged for and in respect of another FINANCE FACILITY in the sum of PKR.25,320,154.98/- regarding which facility, the plaintiff bank had earlier filed suit No,81/2009 [Bank Alfalah Ltd., Karachi v. M/s. Interglobe Commerce (Pakistan) Private Ltd.] against the Defendant No,6 amongst others. In the aforesaid suit, application for leave to defend and another application under section 60 of the Transfer of Property Act, 1882 [VI of 1882] was filed by the principal customer [Defendant No,6 herein land upon hearing, the Banking Court III, Karachi, nonetheless, passed a decree inter alia FOR REDEMPTION OF THE SUBJECT PROPERTY. By paying the 'decretal amount' now against the 'subject property', nothing remains outstanding. Moreover, redemption of the 'subject property' upon receipt of the decretal in the sum of Rs,25,320,154/98 by the Plaintiff Bank was also ordered by Banking Court No,III, Karachi, on 25-08-2009. The relevant part of the order dated August 25, 2009 reads as follows:- It is also directed that the mortgaged property of the Defendant be redeemed upon receipt of the decretal amount and thereupon property documents be deposited with Nazir of this Court for as' delivery to the Defendant/Mortgagor."[Underlining is mine]
12. The Plaintiff Bank, however, feeling aggrieved by the aforesaid order dated 25th August, 2009, preferred 1st Appeal No,45 of 2009, in the High Court of Sindh at Karachi. In the aforesaid 1st appeal, the only grievance of the Plaintiff Bank, it appears, was to the effect that Banking Court No,III, Karachi, instead of passing a 'MORTGAGE DECREE' has passed a 'MONEY DECREE' with direction to the Plaintiff Bank to deposit the 'TITLE DOCUMENTS' with Nazir of the Banking Court-III at Karachi for its REDEMPTION/DELIVERY OF DOCUMENTS' to the Defendant No,6 herein who was 'principal customer' and 'mortgagor' in Banking Suit No,81 of 2009 [BANK ALFALAH LTD v. M/S INTERGLOBE COMMERCE [PAKISTAN] PRIVATE LTD], who in the instant suit has been joined in its' alleged capacity as a Corporate Guarantor [Defendant No,6]. The relevant 'operative part' of the Division Bench's Order dated 06.04.2004, passed in 1st Appeal No,45 of 2009, reads as follows:- "We would, therefore, allow this appeal and would accordingly delete the last four lines from the last para of the impugned order, beginning with the words "It is". We may, however, observe that it hardly needs mention that the respondent No,1, the mortgagor shall be in his right to seek redemption of the mortgage property upon liquidating their liabilities towards appellants bank in terms of the Supplemental Memorandum confirming deposit of title deeds (Annexure B/4 to the Appeal)." [Underlining is mine]
13. Per assertions of the Defendant No,6 herein there exists no any ingredients of Order XXXVIII, Rules 5 and 6 on the basis whereof, an attachment order before judgment can be passed. By twisting the facts, the Plaintiff Bank however, is not entitled to obtain an order 'FOR ATTACHMENT BEFORE THE JUDGMENT' of the 'subject property' which is belonging to Defendant No,5 herein who admittedly is not a MORTGAGOR of the finance facility[ies] granted to and availed by Defendant No,1 Company. It is significant to note against Defendant No,1 [Principal Customer] and Defendant No,5, the Plaintiff have already obtained 'TWO DECREES' inter alia for sale of the mortgaged properties/hypothecated/charged fixed assets/goods etc. Etc.
14. In response to the detailed 'COUNTER-AFFIDAVIT' of Defendant No,6 i.e, in rebuttal of the averments of the application under Order XXXVIII, Rules 5 and 6 and its' supporting affidavit [C.M.A.
No,8617 of 2009], Plaintiff Bank, in its' own wisdom did not file any 'AFFIDAVIT-IN-REJOINDER' despite passing of Order dated 12.10.2010. The contents of COUNTER AFFIDAVIT OF DEFENDANT NO.6 as such have gone un-rebutted and un-challenged. Order dated 12-10-2010 reads as follows:- "Case was kept for hearing of C.M.A. No,8617/2009 filed by the plaintiff. At the very outset, Mr. Lakhani request for time to file certain documents, he may do so in the shape of rejoinder and the counsel for defendant wants to file an application on behalf of his client, he is at liberty to do so, at the Branch." [Underlining is mine]
15. Lastly, on 05.08.2015, when the above case came-up before me then I heard Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank and Mr. Zeeshan Abdullah, learned counsel for Defendant No,6 at length and also gone through and perused the available record with the valuable assistance of the learned counsel for the parties/all concerned.
16. Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank at the very outset made a reference to the earlier suit filed by the Plaintiff Bank against the 'principal customer [Defendant No,6 herein] amongst others bearing Suit No,81 of 2009 [BANK ALFALAH KARACHI LTD v. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD & ORS] and forcefully submitted that the Banking Count No,III, Karachi, while, disposing of 'LEAVE-TO-DEFEND APPLICATION' under section 10 of F.I.O., 2001 read with section 151, C.P.C. And application under section 60 of the Transfer of Property Act, 1882 for 'REDEMPTION OF THE MORTGAGED PROPERTY', filed by the Defendants including the Defendant No,6 herein, passed an order dated 25.08.2009 inter alia to the effect as follows:- "...I have in my consideration that on unequocal admission to pay back the outstanding amount within three month no case for grant of leave to defend is made out in favour of Defendants, hence the application of Defendants for leave to defend is refused, however, the application moved under section 60 of Transfer of Property Act by, the Defendants will take effect upon payment of outstanding amount by the Defendants in accordance with law. In such circumstances with the refusal of leave to the Defendants the grounds for accepting the Plaintiff's Suit emerges in accordance under section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001, therefore, it is ordered that the Defendants are jointly and severally liable to pay Rs, 25,320,154/98 with future cost of funds at the present rate prescribed by the State Bank of Pakistan from the date of default i.e, 22-10-2008 till realization along with the cost of the suit. It is also directed that the mortgaged property of the Defendant be redeem upon receipt of decretal amount and thereupon property documents be deposited with the Nazir of this Court for its delivery to the Defendants/Mortgagor." [Emphasis supplied]
17. According to Mr. Lakhani, learned counsel for the Plaintiff, the Plaintiff Bank thereupon feeling aggrieved with the aforesaid order and decree dated 25.08.2009 passed by Banking Court No,III, Karachi in Suit No,81 of 2009 [BANK ALFALAH LTD v. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD], the Plaintiff Bank consequently, filed 1st Appeal No,45 of 2009 under section 22 of F.I.O., 2001 [BANK ALFALAH LTD v. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD AND 4 OTHERS] in this Hon'ble Court. The above-said 1st Appeal, when came-up before the Hon'ble Division Bench of his Court on 06.04.2010, then the following order was passed:- 'We would, therefore, allow this appeal and would accordingly delete the last four lines from the last para of the impugned order, beginning with the words "It is". We may, however, observe that it hardly needs mention that the Respondent No, I, the mortgagor shall be in his right to seek redemption of the mortgage property upon liquidating their liabilities towards appellants bank in terms of the Supplemental Memorandum confirming deposit of title deeds (Annexure B/4 to the Appeal). "[Underlining is mine]
18. Per Mr. Lakhani, subsequently, vide order dated 24.12.2012, the Banking Court No,III, Karachi, while, 'disposing off' the two connected applications filed by Judgment-debtors in Suit No,81 of 2009 under section 10 of F.I.O., 2001 [BANK ALFALAH LTD V. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD] and under section 60 of Transfer of Property Act, 1882 read with section 151, C.P.C, and section 19(2) of F.I.O., 2001 read with section 47(1), C.P.C. Flied by Defendant No,6 herein, reached the conclusion in the words as follows:- "62. In the result, Decree-holder/bank is directed to deliver up original documents of mortgaged property bearing No,99 CF-1/5, Clifton, Karachi to defendants/Judgment Debtors or their attorney. The Decree holder/bank shall be entitled to withdraw the amount already deposited in Court through Pay Order No,2148335 dated: 11-06-2010 and also upto date cost of funds, for which defendants/Judgments Debtors are directed to deposit the same through Pay Order within 20 days. However, documents of mortgaged property would be first delivered to defendants/Judgment Debtors by Decree Holder." [Underlining is mine]
19. The Plaintiff Bank, per Mr. Abdul Sattar Lakhani, once again feeling aggrieved by order dated 24.12.2012 passed by Banking Court No,III, Karachi, filed another 1st Appeal No,12 of 2013 [BANK ALFALAH LTD v. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD] before this Hon'ble Court which, 1st Appeal when came-up before the Division Bench of this Court on 12.12.2013, then the following order was passed:- "In the circumstances, while holding that upon payment of the decretal amount the property in question stands redeemed but on account of grave apprehension shown by the appellants' counsel that upon release of documents the Respondent No,I would sell the property in order to defeat the decree that may be passed in Suit No,B-I of 2008, we direct the Banking Court not to release the documents of the mortgaged properly till the application filed by the appellant bank in Banking Suit No,1/2008 for attachment of property in question is taken up for hearing and decided. The Banking Court would be free to decide application for attachment one way or the other ir accordance with law. " [Emphasis Supplied].
20. Mr. Abdul Sattar Lakhani, learned colmsel for the Plaintiff Bank, while, strenuously refuting the contention of Defendant No,6 inter alia to the effect that it has a 'good prima facie' case and no decree as averred by Defendant No,6 is likely to be passed against it, forcefully contended that the submissions/averments of the Defendant No,6, are not only false, concocted but also mis- conceived. According to Mr. Lakhani, per the contents of the letter of CORPORATE GUARANTEE duly signed by Chief Executive of Defendant No,6 herein, the liability of guarantor is that of the 'PRINCIPAL DEBTOR' and as such all the guarantors including Defendant No,6 herein, under its' CORPORATE GUARANTEE are also liable to liquidate the guaranteed amounts if, at any time found outstanding in this case, indeed, after recording of evidence in 'Pro' and 'Contra' of the adverse versions of the contesting parties. The denials, in a routine way, on the part of Defendant No,6, inter alia, to the effect that the 'CORPORATE GUARANTEE' was never agreed as alleged, per Mr. Lakhani, besides false, mis-leading and sham are belied by the contents of the CORPORATE GUARANTEE itself. Moreover, the Sponsors and Directors of Defendant No,1 Company herein i.e, Defendants Nos.2, 3 and 4, also Directors and 'sponsors' of the Defendant No,6 Company herein which in fact constitute it a family business concern/a private limited company for all practical purposes. It is further contended by Mr. Abdul Sattar Lakhani, that the Defendants Nos.2, 3 and 4 herein, have also sold their shares in M/s Callmat Telips Ltd., without permission of the Plaintiff Bank and have thus not only robbed the Plaintiff Bank but also deprive it of its' considerable security[ies]. The shares, according to Mr. Lakhani, were not only sold, without permission of the Plaintiff Bank, but Defendants, in the process of sale also indulged in 'fraudulent' and 'illegal activities' as such benefitted themselves at the cost of public and/or at the cost of Defendant No,1 limited company. Mr. Lakhani, also urged that the security furnished by the Defendants Nos.1 and 5 for and availing of the 'finance facilities' granted and availed by the Defendant No,1 in its' capacity as a 'Principal Customer' is not enough security however, it would not justify initiation of any action as proposed by Defendant No,6 herein against the concerned officials of the Plaintiff Bank. The sale agreement entered into between the Defendant No,6 and ZABIST dated 08.06.2010, per Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank, besides collusive and fraudulent, is only aimed at to either deprive and/or leave the Plaintiff Bank unable to recover its' entire decretal amount inter alia UNDER THE TWO THE DECREES ALREADY PASSED AGAINST DEFENDANTS NOS.1 AND 5 ON 10.03.2008 AND 22.12.2014 RESPECTIVELY.
Moreover, 3rd DECREE is also likely, to be passed against the remaining Defendants/guarantors including Defendant No,6 however, after recording of evidence. Notwithstanding the grant of the conditional Leave to Defend the Suit to the Defendant No,6 along with others, yet the issues have not been framed in the case in hand her Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank.
21. According to Mr. Abdul Sattar Lakhani, the Plaintiff Bank [viz. M/s Alfalah Ltd.], at the request of Defendant No,l. Namely 'M/S CALLMATE TELIPS TELECOM LIMITED' had provided various FINANCIAL FACILITIES i.e,:- A]. Current Finance (CF) of Rs,75.00 Million.
B]. TF of Rs,6.00 Million.
C]. SLC/ULC/Acceptance of Rs,80.00 Million.
D]. Letter of Guarantee Rs,30.00 Million. ' and the said Financial Facilities were on 'Markup basis'/'commission' in different amounts which were later on renewed/revised from time to time inter alia against security of 'demand promissory note', hypothecation of MOVABLE/FIXED ASSETS, THIRD PARTY MORTGAGE and PERSONAL GUARANTEES as well. For and in consideration of the aforesaid facilities, the defendant No,1, herein, had also executed Letters of Hypothecation in favour of the Plaintiff Bank on its' MOVABLE PROPERTIES. STOCKS AND FIXED ASSETS, BOOK DEBTS AND RECEIVABLES, which, per Mr. Lakhani have also been DULY REGISTERED with the SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN as per requirement of law. According to the Plaintiff Bank, in consideration of the aforesaid Financial Facilities, the DEFENDANT NO.5/MORTGAGOR viz. Mr. Yuba Jamil Ansari/Mortgagor, firstly, deposited the title deeds of her immovable property i.e, BUNGALOW NO. 22, KHAYABAN-E-SHAMSHER, PHASE-V, DEFENCE HOUSING AUTHORITY, KARACHI, and then confirmed the factum of mortgage by executing a 'MEMORANDUM OF DEPOSIT OF TITLE DEEDS' in favour of the Plaintiff Bank dated 31-05-2004. Besides, Defendant No,5, also executed inter alia an 'Undertaking', 'Iqrarnama' and 'Agreement' for and to create legal mortgage. Moreover, the Defendants Nos.2 to 6, also signed and executed their personal/Corporate Guarantees in favour of the plaintiff whereby, it not only undertook to pay but also guaranteed the repayment of all the outstanding dues payable by Defendant No,1 to the Plaintiff Bank.
22. Later on, according to Mr. Lakhani, at the request of Defendant No,1 Company, the limits of 'finance facility[iesr were also renewed in favour of Defendant No,1 company. Moreover, 'ADDITIONAL CREDIT FACILITY[IES]' vide letter dated 04.05.2005 and 30.01.2006, were not only sanctioned but also secured by means of 'CONTINUING SECURITIES' having been earlier provided by the Defendants. The Guarantors, nonetheless, also signed and executed their personal letter of guarantees in favour of the Plaintiff Bank. Apart from the above, the Plaintiff Bank, on 01.02.2006, obviously at the request of the Defendant No,1 Bank herein, also opened an L/C [Usance-365 days bearing L/C.
No,MBK/0049/2006 in the sum of USD $ 1,292,313 equivalent to Rs,77,771,265/- for 'IMPORT' of 'Hard' and 'Software Telecommunication Equipments' in favour of 'M/S HUAWEI TECH INVESTMENT COMPANY LIMITED' but the Defendants, AS ASSERTED, FAILED AND/OR AVOIDED TO LIQUIDATE THE 'OUTSTANDING BALANCE AMOUNT'. For and on account of such 'default', and in consequence thereof, the present suit has been filed for recovery of the balance outstanding amount in the sum of PKR 258,846,552/-.
23. Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank forcefully submitted that if, the Defendant No, 6 Company was allowed to sell the 'subject property' bearing No,99, CF-1/5, Clifton, Karachi as being wished and intended by the Defendant No,6 Company, who is guarantor herein, then of course, the Plaintiff Bank besides being seriously prejudiced shall be left with no sufficient security for satisfaction of its' 3rd decree which is likely to be passed against Defendant No, 6, amongst other guarantors, no doubt, after framing of issues and leading of evidence by the parties in 'pro' and 'contra' of their pleas/versions. According to Mr. Lakhani, the Plaintiff Bank has a 'good case' for passing of an order for attachment before judgment by allowing he present application under debate. Mr. Abdul Sattar Lakhani, learned counsel for. The Plaintiff Bank, in support of his contentions placed reliance on the following case-laws. The relevant portions referred to therefrom by Mr. Abdul Sattar Lakhani, the learned counsel for the Plaintiff Bank, respectively read as follows:- A. Sheikh Muhammad Azim and another v. National Bank of Pakistan and 3 others [2011 CLD 1361 Lahore (DB)] "13. ... It is not possible for a bank to prepare forged documents as it would not only entail penal action against the delinquents but the reputation of the Institution as a whole would also be at the stake. The documents tendered by the loanee at the time of availing finance facility, at different times, speak volumes about the fact that respondent No,4 got the loan and appellants as well as respondents Nos.2 and 3 being directors of it, stood guarantors against the said loan.
Consequently, they cannot get rid off their liability by ignoring all the documentary evidence produced by the bank.
14. ... Even otherwise, it is cardinal principle of law that technicalities cannot be allowed to impede the way of substantive 'ustice rather the should be while determin the parties, the learned Single Judge has rightly done so. [Underlining is mine] B. MCB Bank Limited v. Messrs Atlas Rubber and Plastic Industries Pvt. Ltd. And 6 others [2011 CLD 1550] "4. It appears that, in fact, the defendant No,3 has sold off the subject property to one Mr. Ashar Sameer ("the Intervener"), who has filed C.M.A. No, 11592 of 2010 under Order I, rule 10, C.P.C. In order to be impleaded as a defendant in the present suit. Learned counsel for the Intervener opposed the C.M.A. Presently under consideration. His case was that the sale transaction whereby the defendant No,3 had sold off the subject property to the Intervener was perfectly regular and lawful, and all the formalities in respect thereof had been completed by the parties concerned. He submitted that no ground whatsoever had been shown by the plaintiff bank for attachment before judgment and no such case had been made out and he accordingly prayed that the application be dismissed [Underlining is mine]
5. ...the defendant No,3 has been sued only as a guarantor in the suit on the basis of the personal guarantee that has been given by him to the plaintiff bank in respect of the finance facilities made available to the defendant No, I. It is, of course, settled law that simply because a person has given a personal guarantee in respect of an outstanding loan, that does not mean that he therefore stands precluded from dealing with his properties and assets in accordance with law and in such manner as he deems appropriate. Simply because a suit has been filed against a guarantor does not in and of itself entitle the creditor to come forward and; in ,effect, restrain the guarantor from dealing with his properties. The creditor must show something specific and additional as required in terms of Rule 5 of Order XXVIII, i.e,, that the concerned defendant is disposing off or is about to dispose off his property with intent to defeat or delay any decree that may be made in the suit. A mere bald assertion in this regard is not enough. In the facts and circumstances of the present case, it appears that the only reason why the plaintiff bank seeks relief by way of attachment before judgment is on account of the advertisement that appeared with regard to the subject property and the sale transaction in respect thereof. In my view, this is insufficient to entitle the plaintiff bank to obtain attachment before judgment. If at all the plaintiff bank succeeds against the defendant No,3, it would be entitled to a personal decree against him in respect of the amount decreed against him. In such an eventuality (and of course, it is to be noted that this is something that remains yet to be decided), if the defendant No, 3 fails to make payment of the decretal amount, the plaintiff bank would be required to pursue execution proceedings against the said defendant in the manner required by law. In my view, simply on the basis of a bald assertion, and without anything more, the plaintiff Bank cannot be allowed to bypass the process of the law and, in effect, obtain something against the defendant No,3 to which it is not directly entitled, i.e,, an immediate judicial order in respect of his property. Of course, had the subject property been mortgaged or otherwise charged with the plaintiff bank, the situation would have been entirely different. However, since that is admittedly not the case, the matter falls to be decided simply in terms of Rules 5 and 6 of Order XXXVIII, C.P.C. And I am not at all satisfied that the plaintiff bank was able to make out any case in terms thereof.
Accordingly, in my view, the application was without merit, and was dismissed by me by means of the short order noted above." [Emphasis provided].
C. Industrial Development Bank of Pakistan v. Messrs French Food Products (Pvt.) Ltd. And others [2009 CLD 93 Karachi] "In the case of Dhan Singh and another v. Baboo Ram and others AIR 1981 Allahabad 1, it was held:- "An attachment before judgment remains valid till the date of dismissal of the suit but ceases to have effect after the date when the suit is dismissed. Hence when the attachment before the judgment is valid prior to the dismissal of the suit, any transfer made in contravention of the order of attachment before the judgment would therefore, be void." [Underlining is mine] .
In the case of Abdul Sattar and others v. Sh. Muhammad Zaki and 4 others 1999 YLR 865, it was held:-- Provisions of section 64, C.P.C. Do not contemplate that such sale is void ab initio but only provided that iuch sale is voidable to the extent of interest of the attaching creditor.
The object of section 64, C.P.C. Is to prevent fraud on the creditor/decree-holder and to secure in fact the rights of the attaching creditor against the attached property by prohibiting private alienation pending attachment."
D. Mst. Ishrat Jehan and another v. Muhammad Zakir Hussain [2008 CLC 1637] "During the course of arguments learned counsel for appellant has contended that the impugned order is not in conformity with law the Court had inherent power to preserve the property for realization of the decretal amount from the respondent in a suit filed for recovery of the rent payable by the respondent being tenant arising out of rent proceedings initiated by the appellant against the respondent, as a consequence thereof executing Court had delivered the possession of the demised premises. It is urged that after filing of the suit the appellant could not be in a position to execute the decree against the respondent, therefore, the attachment of the respondent's property in all fairness would meet the ends of justice. It is explicitly pointed out that the principle recognized under Order XXXVIII, rule 5 of the Civil Procedure Code empowers the Court to attach the property of the contesting defendant in a case where the decree is likely to be passed in the suit which may be satisfied from the sale of the attached property. It is next pointed out that during the course of the proceedings at one stage the respondent's counsel feebly agreed, to furnish surety in the sum of Rs, 9,00,000 after seeking instructions from his client, later not materialized... In any event, if the appellant succeeds in his designs to procure judgment in terms of the decree sought in Suit No, 824 of 2005 the respondent would be liable to protect the rights of the appellant in exercise of the power conferred by the Code of Civil Procedure. When confronted with the above position learned counsel for respondent has agreed for the disposal of the appeal on the premises that pending disposal of the suit respondent would either deposit the title documents of a property as a security with the Nazir of this Court or shall furnish bank guarantee within one month. Learned counsel for appellant seems to be satisfied from the above statement, therefore, the impugned order is hereby set aside with a direction to the respondent to furnish document of immovable property as security/bank guarantee in the sum of Rs, 9,00,000 with the Nazir of this Court within one month which shall meet the ends of justice, with the above observations High Court Appeal No,318 of 2005 is hereby allowed with no orders as to cost."
[Underlining is mine].
E. Messrs Saudi-Pak Commercial Bank Limited v. Messrs Pan Pacific (Private) Ltd. And 9 others [2007 CLD 1348] "For the foregoing reasons, the applications for leave to defend dismissed. The suit is decreed against the defendants in a sum of Rs, 158,183,870.00 with cost of funds to be charged w.e.f, 1-7- 2005 at the rates notified by State Bank of Pakistan. However, recoveries to be effected first through sale of mortgaged properties belonging to defendant No, 1 . In case the value of mortgaged properties are not sufficient to cover the decretal amount, then recoveries are to be made from the assets of the rest of the defendants except defendant No,5, who stood guarantors to defendant No,l's liability. On 3-11-2006 consent order was passed in connected Suit No,31 of 2005, whereby it was agreed by the parties that recovery of the decretal sum shall not be made from defendant No,5 but shall be first made from the rest of the defendants and only if any sum still remains to be recovered out of the decretal amount only then recovery shall be made from defendant No,5. In view of such consent order, the executing Court shall give effect to it while executing this decree." [Emphasis Supplied].
F. Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others [2006 SCMR 619] "5. It is pertinent to mention here that the petitioner had given a guarantee at the time of sanctioning loan facility to the original loanee by the respondent. Guarantee means that it is an undertaking by a 3rd party for one of the parties to the contract whereby the 3rd party binds itself to see that the promise or condition would be fulfilled according to covenant. A contract of a guarantee is a contract to meet the promise or discharge the liability of a 3rd person in case of his default. The person who gives the guarantee is called the surety, a person in respect of whose default the guarantee is given is called the creditor. (see section 126 of the Contract Act).
6. It is also pertinent to mention here that section 139 is not attracted in the present case whereas section 128 is applicable in the given circumstances. The liability of the guarantor/surety is co:exiensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in section 128 of the Contract Act, 1872, unless it B is otherwise provided by the Contratt.
They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shirk from the liabilities incurred by him through the execution of documents as law laid down in the following judgments:
(i) Rafique Hazquel Masih v. Bank Alfalah Ltd. And others 2005 CLD 95; (ii) Platinum Insurance Company Ltd. v. Daewoo Corporation PLD 1991 SC 1; (iii) Ram Sagar Singh v. Yogendra Narain Prasad Singh AIR 1975 Pat. 239; (iv) Ashrafl Rai v. Parsbadilal AIR 1959 M.P. 26; (v) Dalchand, v. State of Rajasthan AIR 1976 Raj. 112; (vi) Madho Sah v. Sitaram Sali AIR 1962 Pat. 405; (vii) Arumugham Chettiar v. Sadasiram AIR 1971 Mad 321; (viii) Nagpur Nagrik Sahakari Bank Ltd v. Union of India AIR 1981 A.B. 153; (ix) Budh Singh v. Mukhund Murailal AIR 1975 A.B. 201 and (x) Kali Cheran v. Abdul Rehman AIR 1918 PC 226." [Underlining is mine].
G. Shahid Sayeed Khan and another v. Prinz (Pvt.) Limited [2004 YLR 2062] "...There is nothing in the plain language of Rule 5 of Order XXXVIII, C.P.C. Which makes a transfer subsequent to the institution of the suit, a condition precedent to its application. Rule 5 refers not to the past but to the future, and to a defendant who with a particular intent is about to dispose of the whole or part of his property. The fact that he had done so after,, the institution of the suit may be strong evidence of the future intention provided he has any property left. But the transfer before the institution of the suit may, as before or conduct, be evidence of intention, after the institution of the suit. The appellant has transferred the' property sought to be attached prior to the filing of the suit by respondent, by gift to his own wife but after the service of legal notice. In para 16 of the plaint, the respondent case is that a sum of Rs,59, 12.000 was received by the appellants as against the work to the extent of Rs,15,00,000. 1n reply of para 16, the appellants have not disputed the receipt of the amount, but pleads as follows:-[Underlining is mine].
'13. That the contents of para. 16 of the plaint are completely unwarranted, misconceived and uncalled for and are thus vehemently denied. It is submitted that the total expenditure on the Project was Rs, 6,500,000 (Rupees Six Million Five Hundred Thousand only), out of which the defendants paid the mechanical and air conditions contractor, a sum of Rs, 6, 50,000 (Rupees Six Hundred and fifty thousand only). The cost of the construction of basement, ground floor, first floor, second floor, roof terrace, laundry and store room, water tank servants quarters, boundary wall, paving both inside and outside the constructed building and drainage amounted to Rs, 6,012,000 (Rupees Six Million and Twelve Thousand only). The remaining amount went towards the architect's project manager's and interior designer's fees.'
We do not see how these questions can be decided before the same is heard nor we can say that the respondent case is bound to fail as to make the passing of the interlocutory order in the nature of direction for surely, without jurisdiction..." [Underlining is mine].
H. Messrs Prinze (Pvt.) Limited v. Shahid Saeed Khan and others [2002 CLD 391] "To appreciate the submissions of learned counsel for the parties Order XXXVIII, rule 5, C.P.C., is reproduced as under:-- "Order XXXVIII, rule 5.--- Where a defendant may be called upon to furnish security for production of property. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him---
(a) is about to dispose, of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.
The Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise direct, specify, the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified."
From the reading of the above provision it is clear that a Court if satisfied by an affidavit or otherwise that the defendant with the intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the property at any stage of the suit can pass an order under Order XXXVIII, rule 5, C.P.C. In the present case the ground taken by the plaintiff is that the defendant No, 1 is about to dispose of the property with intent to obstruct the decree that may be passed in the present suit. Learned counsel for the plaintiff contended that the defendant No, 1 has transferred the suit property prior to filing of the present suit which shows the intention of the defendant which according to the plaintiffs counsel establishes his case as the same has been done after the dispute and service of legal notice dated 16-9-1999 and also that it is a sham transaction just to avoid the claim of the plaintiff. [Underlining is mine] .
The fact that the defendant has transferred the property prior to institution of suit but after the service of legal notice is evident from the material available on record and the defendant has simply denied the service of legal notice. There is nothing in rule 5 of Order XXXVIII, C.P.C., which makes a transaction subsequent to institution of suit a condition precedent to its application. The fact that the defendant has done so after the institution of the suit may be a strong evidence of intention of the defendant. But the transfer before the institution of suit shows conduct of the defendant, which may also be evidenced of the intention after the institution of suit. The intention of the defendant is to be inferred from the attending circumstances. The transfer by the defendant in favour of his wife in clandestine manner prior to institution of suit shows the conduct/intention of the defendant No,
1. The above case referred by the defendant's counsel is distinguishable on facts of the present case." [Underlining is mine].
I. National Bank of Pakistan v. A.M. Pirani and 2 others [1988 CLC 935] "3. Since judgment-debtors Nos. 2, 3 and 4 were sued in the capacity of guarantors, the learned Executing Court could not have dismissed the execution application on the ground that debtor No,] was li uidated or was under li uidation. The liability of judgment-debtor No,1 on the one hand and of judgment-debtors Nos. 2, 3 and 4 was joint and several and, therefore, the execution application could have not proceeded with against the above 3 judgment-debtors. The Revision is therefore, allowed. The order is set side. The case is remanded to the executing Court to proceed with from the stage at which it was when the impugned order was passed. However, there will be no order as to costs. [Underlining is mine].
J. Virasat Ullah and another v. Messrs United Bank Ltd., Lahore [PLD 1975 Lahore 17] "3. Apart from that the main question to be seen in this case is as to whether in view of the allegations made by the respondent-Bank in its application, the property in question can be attached before judgment or not. The provisions of Order XXXVIII, rule 5, C.P.C. Are quite drastic in their nature as the defendant can be put to great disadvantage in case application is accepted under the said provision at the initial stare of the case. The Court should be very careful in applying the said provision against a party and should be fully satisfied on the basis of the proper material on the record before taking any action in this regard. If the application filed under this provision along with an affidavit, does not contain a specific allegation with regard to the alienation of the property to be made during the pendency of the suit with intent to obstruct or, delay the execution of the decree no such order can be passed under the said provision. Unless intention of the defendant to obstruct the execution of the decree is proved mere attempts to dispose of the property would not be a sufficient ground to pass any order under this provision.
The Court has to be satisfied that the transfer of the property is going to be made after the institution of the suit with the said intention. Such allegation has to be proved positively as vague allegation to this effect will not be a sufficient ground under the law. This view gets support from Badanand Rai and others v. Nabokumar Singh AIR 1938 Pat. 161, Nowroii Pudunrjee Siradar v. The Deccan Bank Ltd. AIR 1921 Boni. 69, Durya Das v. Nalin Chandra Nandan etc. AIR 1934 Cal. 694, Badri Prasad v. Chokhey Lal AIR 1926 All 406, Nawab and others v. Charagh AIR 1936 Lah.
195. [Emphasis supplied].
5. It is significant to notice the wording of sub-rule (1) of rule 5 of Order XXXVIII. The words used in the said provision are as follows:
(a) is about to dispose of the whole or any part of his property?
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction; of the Court?
The use of the language as made clearly shows that it pertains to future transaction and not to the past one.
It is correct that the past conduct of a party may be taken into consideration but in order to apply the provision of Order XXXVIII, rule 5, C.P.C. In a proper manner, it is essential to prove the alienation of the property C during the pendency of the suit with the intention of defeating the purpose of the decree. In the absence of that no cider under the said provision can be passed."
[Emphasis supplied].
24. Lastly, Mr. Abdul Sattar Lakhani forcefully submitted that C.M.A. No,8617 of 2009 under Order XXXVIII, Rules 5 and 6, C.P.C. For attachment before judgment be granted otherwise, the Plaintiff Bank shall be seriously prejudiced.
25. IN CONTRA, Mr. Zeeshan Abdullah contended that Plaintiff Bank, in violation of section 18(1) of Financial Institutions [Recovery of Finances] Ordinance, 2001, has obtained various BLANK DOCUMENTS which is quite evident from ANNEXURE 'P/5', 'P/6' AND 'P/7' to the LEAVE TO DEFEND APPLICATIONS [C.M.A. No,1605 of 2008], filed under section 10 of F.I.O., 2001. Per Mr. Zeeshan Abdullah, all the guarantees including the 'CORPORATE GUARANTEE' have also been procured by the Plaintiff Bank in blank. The alleged documents in actual fact, were obtained under 'Economic duress' as such are 'void' under the provision of sections 10, 14 and 16 of the Contract Act, 1872 [IX of 1872].
Moreover, per Mr. Zeeshan Abdullah, since the 'principal customer' [Defendant No,1 herein], is under liquidation and knowingly OFFICIAL ASSIGNEE, Karachi, has already been appointed as 'OFFICIAL LIQUIDATOR'. Of the Defendant No,1 Company. Besides, two 'FINAL DECREES' inter alia for 'SALE OF THE FIXED ASSETS/MORTGAGED PROPERTIES' etc. Etc. Have also been passed against the Defendants Nos.1 and 5 in the present Suit No,B-01/2008, and now an Execution No,39/2008, is still pending against Defendant No,1. Moreover, the Plaintiff Bank, may also be seeking and/or pursuing the 2nd Execution, if filed, interalia FOR SALE OF THE MORTGAGE PROPERTY i.e, [BUNGLOW NO.22, KHAYABA-E- SHAMSHER, PHASE-V, DEFENCE HOUSING AUTHORITY, KARACHI hereof] which is belonging Defendant No,5 herein.
26. Mr. Zeeshan Abdullah, learned counsel for Defendant No,6/Guarantor, next urged that the signatures of Defendant No,5 are totally different on the four documents [Annexure 'C', `C/1' and 'C/3' to the plaint]. Not only, the above illegalities, even the alleged, Corporate Guarantee' of Defendant No,6, which in fact is a Private Company, on the face of record, is without any RESOLUTION OF BOARD OF DIRECTORS [In short RoBD] of Defendant No,6's Company, as such, the alleged CORPORATE GUARANTEE of private limited company [i.e, Defendant No,6 herein] evidently not being backed by any resolution of BoD, thus is 'Null' and 'Void', even otherwise.
27. Manifestly, the Defendant No,1 Company [PRINCIPAL CUSTOMER], for which the Defendant No,5 has mortgaged her immovable property by executing 'mortgage deed' and/or MDOTD and Defendants Nos.2 to 4 and Defendant No,6, per alleged stand of the Plaintiff Bank have stood guarantors, has already been 'wound-up' on the winding-up petition of the Plaintiff Bank and consequently 'Official Assignee has already been appointed as OFFICIAL LIQUIDATOR to look-after and possess the assets of Defendant No,1 Company. The Plaintiff Bank, as being a Decree- holder/secured creditor would, no doubt, is entitled to get its' FINAL DECREE satisfied from the sale proceeds of the assets of Defendant No,1 Company herein. Besides, there is another 'INTERIM DECREE' already passed against Defendant No,5/Mortgagor in the sum of Rs,18.2 million along with cost of funds upto date vide order dated 22.12.2014. Needless to say, Defendant No,5, is also mortgagor in respect of her Bungalow i.e, BUNGALOW NO.22, KHAYABAN-E-SHAMSHER, PHASE-V, DEFENCE HOUSING AUTHORITY, KARACHI. The 2nd 'INTERIM DECREE' passed against Defendant No,5/Mortgagor is dated 19th January, 2015.
28. According to Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6, while taking his arguments forward, vehemently submitted that Defendant No,6, has a 'GOOD PRIMA FACIE CASE' and, of course, no decree is likely to be passed against it. The contention of Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank to the extent that the Defendant No,6 has not a good prima facie case, according to Mr. Zeeshan Abdullah, is not only fallacious, malicious, but also misconceived and untenable in law, particularly if read and seen viz-a-viz.The alleged so-called 'Crossed/Cancelled Corporate Guarantee'. The 'Cross Corporate Guarantees' i.e, [Annexure 'J/5' dated 14-07-2006 for Rs, 481,660,646, F-6 dated 02-05-2005 for Rs,311,951,084 and 'D-4', dated 24- 05;2004 for Rs,70,000,000/-] are absolutely not binding and enforceable in law: Besides, the contention of Mr. Abdul Sattar Lakhani that under the terms and conditions of a 'CORPORATE GUARANTEE', the decree already passed against the 'PRINCIPAL CUSTOMER' [Defendant No,1] is a 'Prima Facie' and conclusive evidence and as such, deemed to be binding upon guarantor[s], is concerned, the same is not mis-conceived but also mis-leading. The Decree passed against the Defendant No,1, is not a CONCLUSIVE EVIDENCE of the so-called liabilities, as Defendant No,6 has already been granted 'UN-CONDITIONAL LEAVE TO DEFENDANT THE SUIT', which, of course, dilutes and dispel the likelihood of passing of any decree against Defendant No,6. In any event, both the parties are yet to lead evidence in 'pro' and 'contra' of their pleas.
29. In stipport of his contention, Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6 while, placing reliance on the following case-laws also referred to therefrom, the 'portions' as below:- a. Muhammad Yousif v. Agha Amir Muhammad [PLD 1976 Karachi 926] "The Jurisdiction of Courts in attaching property before Judgment is of an extraordinary nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Code. In terms Order XXXVIII, rule 5, C.P.C. Requires that before availing itself to act under this rule the Court should be satisfied that the defendant is about to dispose of the whole or part of his property with intent to obstruct or delay the execution of any decree that may be passed against him. The Court would not be justified in issuing an order under this rule merely because no harm would) be done thereby. [Emphasis Supplied].
As stated above no allegation of the nature as provided by law has been made in this case. I am not satisfied that the mere fact that defendant has disposed of two vehicles, leads to the conclusion that he did so or that he intends to similarly dispose of his other property, with the requisite intention. Nothing has been shown to satisfy the Court of the practical certainty of the plaintiffs success in suit, as it is yet to be proved upon oral evidence that the plaintiff advanced the huge amount without any kind of writing. Nor has the plaintiff established the existence of grave danger of the defendant disposing of his property. [Underlining is mine] b. MCB Bank Limited v. Messrs Atlas Rubber and Plastic Industries Pvt. Ltd. And 6 others [2011 CLD 1550]
5. It is, of course, settled law that simply because a person has given a personal guarantee in respect of an outstanding loan that does not mean that he therefore stands precludcd from dealing with his properties and assets in accordance with law and in such manner as he deems appropriate. Simply because a suit has been filed against a guarantor does not in and of itself entitle the creditor to come forward and; in effect, restrain the guarantor from dealing with his properties. The creditor must show something specific and additional as required in terms of Rule 5 of Order XXXVIII, i.e,, that the concerneddefendant is disposing off, or is about to dispose off his property with intent to defeat or delay any decree that may be made in the suit. A mere bald assertion in this regard is not enough. In the facts and circumstances of the present case, it appears that the only reason why the plaintiff bank seeks relief by way of attachment before judgment is on account of the advertisement that appeared with regard to the subject property and the sale transaction in respect thereof. In my view, this is insufficient to entitle the plaintiff bank to obtain attachment before judgment. If at all the plaintiff bank succeeds against the defendant No,3, it would be entitled to a personal decree against him in respect of the amount decreed against him. In such an eventuality (and of course, it is to be noted that this is something that remains yet to be decided), if the defendant No, 3 fails to make payment of the decretal amount, the plaintiff bank would be required to pursue execution proceedings against the said defendant in the manner required by law. In my view, simply on the basis of a bald assertion, and without anything more, the plaintiff Bank cannot be allowed to bypass the process of the law and, in effect, obtain something against the defendant No,3 to which it is not directly entitled, i.e,, an immediate judicial order in respect of his property. Of course, had the subject, property been mortgaged or otherwise charged with the plaintiff bank, the situation would have been entirely different. However, since that is admittedly not the case, the matter falls to be decided simply in terms of Rules 5 and 6 of Order XXXVIII, C.P.C. and I am not at all satisfied that the plaintiff bank was able to make out any case in terms thereof Accordingly, in my view, the application was without merit, and was dismissed by me by means of the short order noted above." [Underlining is mine] c. MCB Bank Limited through Manager v. Messrs Millennium Securities and Investment Private Limited through Chief Executive and 6 others [2011 CLD 1355] "10. Through the instant applications, the applicant/plaintiff has sought not only attachment before judgment of various properties of Directors of respondent Company rather has also sought attachment of their shares in different companies. The applicant/plaintiff in C.M. No,194 of 2009 has sought that bank Account No,1390-03-01-0000859 in MCB Limited, Stock Exchange Branch, Blue Area, Islamabad be attached and the respondents be restrained from transferring the amount lying in the said Account and in this regard an interim order dated 10-7-2009 has also been passed. These applications have been filed under Order XXXVIII, Rule 5, C.P.C. Read with section 151, C.P.C. And section 16(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, whereby restraint order with regard to further alienation of immovable property as well as shares and attachment of bank account is sought by the applicant/plaintiff on account of financial facilities allowed to the respondents/ defendants amounting to Rs, 17,000,000 (seventeen Crores).
Admittedly the said financial facility has been allowed against security of mortgage property, Plot No,B-14, Poultry and Vegetable Scheme No,II, Park Road, Chak Shahiad, Islamabad. The estimated value of which is Rs, 2500,00.00 (twenty five Crores) and in this regard suit is pending, as such, the liability of the respondents/defendants is yet to be determined. Admittedly sufficient security has been obtained by the applicant/plaintiff, before allowing the finance, facility in the form of mortgage property on which the applicant/plaintiff has got the first lien charge. In the presence the same, if the instant applications of the applicant/plaintiff are allowed, it would result in a chain reaction in the financial circle against the respondent/ defendant company and its Director which would ultimately result in disaster which would neither benefit the plaintiff nor the defendants.
Allowing the instant applications would in fact adversely affect the business of the defendants and the impact would that their business would come to an halt, as such, same cannot be justified in any manner whatsoever in the presenie of sufficient security being available to the applicant/plaintiff in the form of mortgage property. Even on legal plane the applications cannot sustain as section 16(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, clearly indicates that the same is not applicable to the properties mortgaged/pledged and in the instant case the applicant has sought attachment of properties other than mortgaged/pledged properties, hence the instant applications are not sustainable. Moreover, under Order XXXVIII, Rule 5, C.P.C. No order for attachment before iudgment can be passed on mere apprehensions/ presumptions.... [Underlining is mine] d. Saudi Pak commercial Bank Ltd. v. A. H. International (Pvt.) Ltd. And others [2007 CLD 175] 'Another question which requires consideration in which the plaintiff is entitled for attachment of the property in exercise of powers under Order XXXVIII, rule 5, C.P.C., I would like to mention that notice for sale was published much Prior to filing of the suit and as such it does not lie in the mouth of the plaintiff to say that defendants 1 to 4 are disposing of the property with intent to obstruct or delay the execution of any decree that may be passed against them. The object of Order XXXVIII, rule 5, C.P.C. Is not to paralyze the normal and bona fide transaction, and unless it is established that defendants are about to dispose of the property with intent to delay or defeat the decree that may be passed, Court normally will not pass order for attachment of property before judgment. On reading section 53 of Transfer of Property Act together with Order XXXVIII, rule 5, C.P.C. One can see that by section 53 of Transfer' of Property Act, legislature provided remedy to creditors to call in question transfer ofimmovable property made with intent to defeat or delay his claim whereas by Order XXXVIII, rule 5, C.P.C. Plaintiff' can ask for attachment of property of defendant before judgment when defendant with intent to obstruct or delay the: execution of any of the decree that may be passed against him, is about to dispose of same. [Underlining is mine] e. Muhammad Ather Hafeez Khan v. Messrs Ssangyong and Usmani JV [PLD 2011 Karachi 605]
7. For Rule 5(1) to be applicable, the plaintiff must show that the defendant has the necessary "intent", and that it is with this intent that he is "about" to remove his property from the jurisdiction of the court. Learned counsel for the defendant relied on Allied Industries Hub (Pvt.) Ltd. v. China National Metals and Mineral Import and Export Corporation and another 1989 MLD 2027, Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading AG and others 1991 CLC 2071 and Arrow Trading Company v. Hosing Corporation and others 1997 MLD 55, all single Bench decisions of this Court, to submit that the mere fact that the defendant was a foreign corporation and had no permanent assets in the country was no ground to order attachment before judgment, especially if as was the case at hand, the plaintiff was, and had all along been, aware of this position. (It may be noted that the Division Bench decision in the Balagamwala case (supra) was on appeal from the second mentioned case; however, nothing was said there as would affect the decision of the learned single Judge on the point now under consideration, and the appeal was in any case dismissed on the merits.) The fact that a foreign company may be doing business in Pakistan without having a permanent presence here, e.g., on a single project basis, would almost invariably mean that any payments received by it would be remitted abroad. The effect of such remittances may well be that a plaintiff may be unable to execute in Pakistan any decree made in his favour against such a defendant. However, it is not such an effect simpliciter that is caught by Order XXXVIII. It is only if such effect is brought about with the intent to delay or obstruct the decree that Order XXXVIII may be engaged. The mere fact therefore that in the present case, the defendant is a Korean entity is not of itself sufficient to attract Order XXXVIII and standing alone, is not a factor that is of prime importance.
9. Inextricably linked to the issue treated in the last paragraph is of course, the requirement that the defendant must also have the necessary "intent", i.e,, to obstruct or delay execution of any decree against him. No hard and fast rule can be laid down as to what would constitute the necessary "intent" or how it would be determined, nor would it be desirable to do so. Much would depend on the facts and circumstances of the case. In some cases, the very facts constituting the removal (or proposed or attempted removal) may be such as lead irresistibly to such a conclusion-res ipsa loquitur, as it were. In others, something additional may need to be adduced by the plaintiff. However, one point is clear. An order of attachment before judgment obviously curtails the undoubted right of a person to deal with his property as he deems appropriate. The object of such an order is preventive and not punitive. The plaintiff must therefore make out a clear case that the ingredients of Rule 5 are applicable. If there is a doubt or ambiguity, then the benefit must go to the defendant. Thus, unless the necessary "intent" can be made out with reasonable clarity from the relevant facts objectively considered, an order of attachment ought ordinarily to be regarded as inappropriate.
10. .. The purpose behind Order XXXVIII is not to guarantee to a plaintiff that there will always be an asset available in the jurisdiction to satisfy his claim, should he ultimately succeed in his action.
That is not the function or duty of a court of law. The purpose behind Order XXXVIII is to ensure that a defendant does not abuse the process of the court, in the sense that he is able, pending adjudication of the claim against him, to make himself judgment-proof " [Underlining is mine]
30. Lastly, Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6 vehemently submitted that C.M.A. No,8617 of 2009 for attachment before judgment of immovable property belonging to Defendant No,6 merits no consideration as such is liable to be dismissed with cost.
31. Heard.
32. Merely on the basis of an afterthought facts and apprehension to the effect that the Plaintiff Bank would not be able to execute its' decree if, passed in its' favour against the Defendant No,6 [In the case in hand if passed after framing of issues and recording of evidence] is, indeed, not a sufficient ground for invoking the provisions of Order XXXVIII, Rule 5, C.P.C. If, this ground/plea is accepted; as a 'sufficient ground' for passing order of attachment before judgment, 'then, of course, and undoubtedly, it would cause serious hardship to the.. Companies/ Organization who are doing business in Pakistan. Rather to say, for them carrying on, of any kind of business in such like environment of apprehension would not be possible. Instead, it is open to the Plaintiff Bank herein, to pursue its' execution proceeding in case of passing any money decree against the Defendant No,6 in future in accordance with law and rules. For ready reference and better understanding Order XXXVIII, Rule 5, C.P.C., is reproduce herein-below which reads as follows:- B. Order XXXVIII, Rule 5, C.P.C.
"5 - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him. [emphasis supplied]
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the court may direct the defendant, within a time to be fixed by it either to furnish security in such sum as may be specified in the order to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. [Underlining is mine].
33. From bare perusal of the above, it is crystal clear that onus of proof is on the Plaintiffs shoulder to establish that the Defendant is going to dispose of his property with an 'intent' to 'obstruct' or 'delay' the execution of any decree that may be passed against him. In the case in hand it is an admitted position that Defendant No,6 herein has entered into a Sale Agreement with proposed INTERVENER VIZ. SZABIST with an intent to pay off the decretal amount against it pursuant to a decree passed in Suit No,81 of 2009 [Bank Al-Falah Limited v. M/s. Interglobe Commerce Pakistan Ltd. And others] and not as alleged with an intent to obstruct or delay the execution of any decree that may be passed [in the case in hand after recording of evidence] against Defendant No,6 herein.
34. The aforesaid position is clearly substantiated from the contents of 'Memorandum of Understanding' of 2nd June, 2010, signed and executed between the Defendant No,6 herein and the proposed Intervener viz. SZABIST. The contents of 'MoU', no doubt, show that there is no 'mala fide intent' on the part of Defendant No,6 as alleged by the Plaintiff Bank because the deal of sale in respect of the 'subject property' i.e, bearing No,99, CF-1/5, Clifton, Karachi is only for the purpose of liquidating the decretal amount of the decree already passed by Banking Court No,III, Karachi in favour of the Plaintiff Bank and against the Defendant No,6 herein. The relevant portion of the MoU dated 02.06.2010 reads as follows:- "AND WHEREAS the said property presently under mortgage as per the decree dated 25th August, 2009 of the Honourable Banking Court No,III at Karachi in suit titled as Bank Al-Falah Limited v. M/s Interglobe Commerce (Pakistan) Private Ltd and 4 others bearing Suit No,81/2009 as modified by the Honourable High Court of Sindh at Karachi in First Appeal No,45/2009 under order dated 06th April, 2010 clarifying that the Mortgager i.e, Party No,1 shall be in its right to seek redemption of the mortgage property upon liquidating its liabilities towards the said bank in terms of the Supplemental Memorandum confirming deposit of title deeds, which documents upon redemption of mortgage are to be deposited by the Bank with the Nazir of the Banking Court No,III, Karachi for delivery to the defendant mortgager i.e, Party No,1; The Party No,2 has paid an amount of PKR 30.00 millions as advance/down payment towards the said consideration through Pay Order No,2148283, DATED 02-06-2010 drawn in favour of the Nazir of the Banking Court No,III, Karachi for the purpose of redemption of the mortgage of the said property in terms of the decree of Banking Court No,III, at Karachi, in Suit No, 81/2009 under order dated 25th August, 2009 as modified by the Hon'ble High Court of Sindh at Karachi in First Appeal No,45/2009 under order dated 06th April, 2010. The Party No,1 acknowledges the receipt of the said pay order in terms of and for the_purpose as stated herein. " [Underlining is mine].
35. The aforesaid dated 08th June, 2010 was subsequently amended vide ADDEMNDA to MOU dated 08th June, 2012, on 12th June, 2012. It would be advantageous to reproduce therefrom the relevant portions which read as follows:- "AND WHEREAS at the time of execution of said MOU, Pay Order No,2148283, dated 02.06:2010 for PKR 30.00 million drawn in favour of the Nazir of the Banking Court No,Ill at Karachi was handed over to Party No,1 by Party No,2 as advance/down payment towards consideration of the total amount of PKR 150.00 million; "The Party No,2 has handed over Pay Order No,2148335, dated 11.06.2010 for PKR 28,475,362.86 drawn in favour of the Nazir of the Banking Court No,III at Karachi and party No,1 acknowledges the receipt thereof as advance/down payment towards the total consideration PKR 150.00 million. The Party No,2 shall pay the balance of Rs,121,524,637.I4 of the total consideration of Rs,150.00 million to the Party No,1 at the time of transfer and registration of the Sale Deed. The Pay Order No,2148283, dated 02.06.2010 of PKR 30.00 million has been returned to the Party No,2 and the receipt therefore issued by Party No,1 has been cancelled and both the parties agree that the terms mentioned in Clauses 2 and 8 of the MOU shall stand modified/altered and amended accordingly upon execution of this Addenda by the parties to the said MOU. This Addenda shall be attached to and shall form part of MOU executed on 08th June, 2010." [Underlining is mine].
36. From the record, it is manifestly clear, that the 'ENTIRE ADVANCE'/'EARNEST MONEY' pursuant to the said MoUs was directly paid through a pay order of 11.06.2010 for satisfaction of the earlier decree passed by Banking Court No,III at Karachi in Suit No,81 of 2009 and obviously the Defendant No,6, did nothing wrong but bonafidely deposited the pay order of 'earnest money' in the sum of Rs,28,475,362/85 with the Nazir of the Banking Court No,III, Karachi. In view of this position, the question of any 'mala fide' and/or 'bad intent' to obstruct any decree does not arise. Rather, it is the Plaintiff Bank, who failed to return the 'title documents' of the 'subject property' to Defendant No,6 herein despite order of the Banking Court No,III at Karachi, [The said order it is needless to say, was later on also upheld by the Division Bench of this Hon'ble Court] and payment of the entire decretal amount through Nazir of Banking Court No,III at Karachi. The Defendant No,6 herein has been impleaded in its' capacity as 'alleged guarantor' only. For the sake of arguments if, the Plaintiff Bank succeeds to get a 'MONEY DECREE' in its favour after framing of 'issues' and leading of evidence then the Plaintiff Bank, no doubt, as a 'MONEY DECREE HOLDER' would be at liberty to pursue its' remedy by way of filing an execution in the manner as provided under section 19 of F.I.O., 2001 read with Order XXI of C.P.C. At this point of time, it is important to note, that the Plaintiff Bank herein has already obtained TWO DECREES against the mortgagers i.e, Defendants Nos. 1 and 5 herein but in its' own wisdom instead of pursing the sale of properties/fixed assets etc. Etc. Is behind the 'subject immovable property' belonging to Defendant No,6 which is not mortgaged or otherwise, under any charge of the Plaintiff Bank. The drill so started, by the Plaintiff Bank seems nothing but a calculated attempt to by-pass the laid down procedure as provided under the law. Of course, such an 'afterthought drill' is not only un-called for but also un-warranted under the facts and circumstances of the case in hand.
37. As far as the contention of Mr. Abdul Sattar Lalchani that the Plaintiff Bank has 'insufficient security' for and regarding satisfaction of the claim of the Plaintiff Bank is concerned, the same besides afterthought is belied by the record of this case. For ready reference in this regard, I would like to reproduce herein the 'charge certificates' dated 16.06.2004 and latest 'acknowledgement' dated 26.07.2004, whereby amount of charge was increased from Rs,588,000,000/- to Rs,708,000,000/- [Annexures 'P3' to 'P-4'] to 'counter-affidavit' in response to C.M.A. No,8617 of 2009 being an application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C.
Respectively, as follows:- A. SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN ' CERTIFICATE OF REGISTRATION OF MORTGAGE, ETC., ' [Under section 127 of The Companies Ordinance, 1984 (XLVII of 1984)] ' Mortgage Charge dated 16.06.2004 made between ' CALLMATE TELIPS TELECOM LIMITED ' 99-CF, 1/5, CLIFTON, KARACHI Of the one part ' AND BANK AL-FALAH LIMITED, MAIN BRANCH, B.A BUILDING, I.I. CHUNDRIGAR ROAD, KARACHI.
' Of the other part Pursuant to the provisions contained in section 127 of the Companies Ordinance, 1984 (XLVII of 1984), I hereby certify that the abvoe mortgage or charge for Rs,150.000 Million/(Rupees One Hundred Fifty Million Only) has been registered in this office in accordance with the provisions of sections 123 and 124 of the said Ordinance.
Given under my hand at Kapphi this 22nd day of June, two thousand four Fee Rs,5000/- SD/- TAHIR MAHMOOD ADDITIONAL REGISTRAR OF COMPANIES KARACHI B. SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN ACKNOWLEDGMENT OF FILING [See - regulation - 8 (2)] No, K-07568/Com/2004 Dated: 26.07.2004 In the matter of M/s CALLMATE TELIPS TELECOM LIMITED 99-CF, 1/5, CLIFTON, KARACHI ' The receipt of the under mentioned document(s) filed/registered/recorded, pursuant to the provisions of the Companies Ordinance, 1984 (XLVII of 1984) is hereby acknowledged:- ' Form-16 dated 07.07.2004, the amount of charge has been increased from Rs,588,000,000/- (Rupees Five Hundred Eighty Eight Million Only) to Rs,708,000,000/- (Seven Hundred Eight Million Only) against Supplemental Letter of Hypothecation of Movables and Book Debts in favour of Bank Alfalah Limited, Main Branch, B.A. Building, I. I. Chundrigar Road, Karachi [Emphasis supplied].
' Other terms and conditions to remain unchanged. Sd/- (WAJID WAHEED KHAN) Joint Registrar of Companies Fee Rs,5000/-
38. Needless to say, the aim and purpose behind Order XXXVIII, Rule 5, C.P.C. Is not meant for guarantee a Plaintiff vis-a-vis the assets available within the jurisdiction of the court or otherwise, to ensure satisfaction of the claim therefrom if, it succeeds in his/its' action ultimately. In order to invoke the provisions of Order XXXVIII, Rule 5, C.P.C., one has to show 'the intent' of a Defendant about disposal of its' property with a view to obstruct/defeat the decree that is 'likely' to be passed against a Defendant. Manifestly, as far as, the instant case is concerned, the Plaintiff Bank, on the basis of available materials falls short to fulfill the requisite ingredients of Order XXXVIII, Rule 5, C.P.C. In view of this position as well, the invoking of jurisdiction of this Court under Order XXXVIII, Rule 5, C.P.C. Is not only misconceived but also mis-leading as such merits no consideration.
39. It is significant to mention herein that, under the Banking Companies Ordinance, 1962 [LVII of 1962], the State Bank of Pakistan [In short SBP] in its capacity as a 'Regulatory Body' issues circulars, guide-lines and prudential regulations which are not only binding on the Banks/DFIs, but also needs to be followed strictly. Any violation or circumvention of the circulars/instructions and prudential regulations, indeed, render the Banks/DFI's and concerned officers liable for penalties under the Banking Companies Ordinance [LVII of 1962] . Under the prudential regulations, the State Bank of Pakistan has, no doubt, instructed the Financial Institutions/DFI's to obtain the prescribed 'tangible securities against the financing extended to the customer[s]. The 'tangible security' as defined in the prudential regulations means readily realizable assets i.e, mortgage of land, plant, building, machinery and any other fixed assets. To see whether in the case in hand such requirement has been made or not, I would like to refer to and reproduce herein paras 5 and 6 of the plaint as under: a. Para 5 of the Plaint: That in consideration of the aforesaid financial facilities, the Defendant No,1 executed letter of hypothecation in favour of the plaintiff on its movable properties, stocks and fixed assets, book debts, receivables and charges for which were duly registered with the Securities and Exchange Commission of Pakistan as per requirement of law. Details of which are mentioned bellow: Registered First Charge of Rs,110 Million over: Present and future goods, merchandise, products, stocks in trade, raw material, work in progress, finished and unfinished goods, now or here after stored or located or lying at 99-CF-1/5, Clifton, Karachi or any other place of storage godown in Pakistan and all such aforesaid goods in the course of transit including floods referred by and release under transit including goods referred by and release under trust receipts and all future goods/stocks that may be brought into the above place of storage or go down.
Present and future book debts and receivable, out standings moneys, claims, bills, contracts, engagements, securities, rights and assets.
Registered First Exclusive Charge of Rs,150 Million over: First Exclusive charge over operating fixed Assets comprising of Pay phone, both furniture and fixture etc, now or hereafter installed or located at 99-CF-1/5 Clifton, Karachi or any other place in Pakistan.
Registered First Charge of Rs, 588 Million over: Operating Fixed Assets comprising of Motorola vanguard, Digitalk Compac Server equipment, Hardware equipment etc. Digitalk data Server, Dgitalk Service software, Telesoft Design, Raid controller, CTM TS 900 :Printer HardwareCompaq Proliant, Pay Phone and Ancillary equipment all along with accessories, leasehold equipments, furniture and fixtures, office equipments computers motor vehicles, now or hereafter installed. Or located at 99-CF--1/5, Clifton Karachi or any other place in Pakistan.
Present and future goods, merchandise, products, stocks stock in trade, raw materials, work in progress, finished and unfinished goods, now or here after stored or located or lying at 99-CF-1/5, Clifton, Karachi or any other place of storage godown in Pakistan and all such aforesaid goods in the course of transit including goods referred by an release under trust receipts and all future goods/stocks that may be brought into the above place of storage or godown.
First charge over present and future book debts and receivables, outstanding, monies, claims, bills, contracts, engagements, securities, rights and assets.
Registered First Charge of Rs,588 Million modified to Rs, 708 Million.
The above charge of Rs,588 Million was subsequently modified to Rs, 708 Million over the above Hypothecated Goods and Hypothecated Receivables against supplemental Letter of Hyphothecation dated 27-07-2004. [Emphasis supplied]. b. Para 6 of the Plaint: That in consideration of the aforesaid financial facilities, the Defendant No,5 first deposited the title deeds of her immovable property i.e, bearing No,22, Khayaban-e- shamsher, measuring 2000 square yards, phase-V, Defence Housing Authority, Karachi, and then confirmed the factum by executing a memorandum of deposit of title deeds in favour of the plaintiff dated 31-05-2004, the Defendant No,5 also executed inter alia in respect of said property an undertaking, Iqrarnama and agreement to create legal mortgage." [Emphasis supplied]
40. Apart from the above, Mr. Zeeshan Abdullah, learned counsel for Defendant No,6, next focused the attention of this Court towards para No,7 of the plaint wherein, the Defendant No,6 amongst others has been shown as Guarantor of finances granted to and availed by the Defendant No,1 company. 'Para-7' of the plaint reads as follows:- "Para 7 of the Plaint: That the Defendants Nos.2 to 6 also executed their personal/corporate guarantees in favour of the Plaintiff undertaking and guaranteeing the repayment of all the outstanding and dues of the Defendant No,1 to the Plaintiff "
41. The Defendant No,6, nevertheless, has forcefully denied the alleged 'CORPORATE GUARANTEE' by taking the stance that the alleged CORPORATE GUARANTEE', was never accepted at any point of time. Moreover, according to Mr. Zeeshan Abdullah, the alleged 'CORPORATE GUARANTEE' is also not supported and/or backed by any RESOLUTION having to be passed by the Board of Directors [In short BOD] of the Defendant No,6's Company. For and inter alia other disputed points/pleas the Defendant No,6 amongst other guarantors, has already been granted 'UN-CONDITION LEAVE TO DEFEND' the suit on 20.04.2009. As far as Defendant No,1 - 'Principal Customer' is concerned for want of any leave to defend application, the allegations of ' facts in the plaint in terms of subsection [1] of section 10 of F.I.O., 2001 deemed to admitted by the Defendant No,
1. For ready reference subsection [1] of section 10 of F.I.O., 2001 reads as follows:- "10. Leave to defend.---(1) In any case in which the summons has been served on the defendant as provided for in subsection (5) of section 9, the defendant shall not be entitled to defend the suit unless he obtains from the Banking Court as hereinafter provided to defend the same; and, in default of his doing so, the allegations of fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour of the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice." [Underlining is mine].
42. Under the aforesaid scenario and background the present suit was pushed forward and consequently, against the defendant No, 1 's company [principal customer] besides proceeding the case 'ex parte', the suit was lastly decreed against the Defendant No,1 vide order dated 10.03.2008 as follows:- a) That the defendant No,] do pay to the Plaintiff a sum of Rs, 258,846,552/- with cost of funds at the rate fixed by the State Bank of Pakistan from the date of default till realization; b) It is hereby ordered that the suit of the plaintiff be and is hereby decreed for attachment and sale of the hypothecated properties and assets of the defendant No,1 as specified in paragraph 5 above and anneuxres "B" to "B/7". [Emphasis supplied]. c) Cost of suit is also granted.
43. Mr. Zeeshan Abdullah, learned counsel for Defendant No,6 Company [alleged guarantor] further argued that the 'Defendant No,1 company'/'principal customer' has admittedly been 'WOUND-UP' on the Winding-up Petition bearing J.M. No,5 of 2008, filed by the Plaintiff Bank under Company Jurisdiction of this Hon'ble Court and the plaintiff Bank, no doubt, would be pursuing its' remedy vis- a-vis its' claim in its' capacity as a SECURED CREDITOR before 'Official Liquidator' of Defendant Company prudently. The Plaintiff Bank, per record of the case, is holding registered '1st Charge' in the sum of Rs,708 Million. Besides, apart from a 'FINAL DECREE' against Defendant No,1, the Plaintiff Bank is also holding an 'INTERIM DECREE' against the Defendant No,5/Mortgager. Being relevant section 11 of F.I.O., 2001 is reproduced as under:- "11. Interim Decree.--(1) If the Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff.
(2) The interim decree passed under subsection (I) shall, for all purposes including appeal and execution, be deemed to be a decree passed under this Ordinance, and any amount covered thereby or recovered in execution thereof shall be adjusted at the time of the final decree: [Emphasis supplied] Provided that it shall be open to the Banking Court notwithstanding the pendency of any appeal to modify, in part or in whole, or reverse, the terms of the interim decree at the time of the final disposal of the suit and pass such order as it may deem just and proper: "
Provided further that neither the Banking Court nor the High Court acting under subsection (3) of section 22 shall stay execution of an interim decree unless the judgment-debtor deposits in cash with the Banking Court the amount or amounts admitted by the judgment-debtor to be payable to the financial institution under clause (c) of subsection (4) of section 10, and furnishes security for the balance decretal amount if any, inclusive, in the case of a suit filed by a financial institution, of cost of funds determined under section 3, and other costs."
44. In view of the above, Mr. Zeeshan Abdullah next urged that the Plaintiff Bank has no case against the Defendant No,6 herein inter alia on the face of available record. Moreover, per Mr. Zeeshan Abdullah, the instant suit against the Defendant No,6 has been filed on the basis of 'FORGED' and 'FICTITOUS' documents. This factum can be conveniently be substantiated from the 'facts' and 'materials' available on record. Mr. Zeeshan Abdullah in brief, submitted that:- i. the alleged 'CORPORATE GUARANTEE' of the Defendant No,6 is void for want of RESOLUTION of Board. Of Directors [BOD] of the Defendant No,6 Company. ii. Per ANNEXURE 'P-1' TO 'P-7' of the LEAVE TO DEFEND APPLICATION [5] [Now, 'Written Statement[s]' after grant of leave to defend the suit to defendants Nos. 2, 3, 4 and 6], the alleged 'Corporate Guarantee' is evidently declined/unaccepted. iii. The ANNEXURE 'P-2' of the leave to Defendant application [now written statement], which is an offer letter dated 30-06-2006 has only been signed by two persons [signatures appearing on the bottom of the page]. iv. The alleged 'corporate guarantee' of the Defendant No,6 on the 2nd page was 'crossed' / 'cancelled' with an endorsement as 'not accepted'.
45. Like-wise Annexure 'G' [available at page 205 of Part-II] is concerned, the same according to Mr. Zeeshan Abdullah, is without any 'signatures' and the 'endorsement of cancellation'/ cross' on the second page of the Corporate Guarantee of the Defendant No,6, however, the same besides fabricated, after-thought is misleading one. Moreover, same is the position of agreement of financing [Annexure 'P-7' of the Leave to Defend Application. On perusal of the aforesaid documents it reveals that: A] The document [Agreement of Financing] is comprising upon [4] pages but; First 'Three pages' are showing signatures of two persons for and on behalf of the 'principal customers '/'defendant No,1 and; the 'last page' bears the signatures of the same persons with the 'endorsement' as 'crossed'/'not accepted' Corporate Guarantee' of the Defendant No,6.
[Underlining is mine].
46. All the above, undoubtedly falsify the Plaintiff Bank in its' version/stand taken by the Plaintiff Bank in the present proceeding. Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6 next contended that in fact the Plaintiff Bank is bent upon and seems in a drill to 'foist' a 'false claim' upon Defendant No,6 and for achieving this purpose, got manipulated the actual 'finance agreement' and placed on record, a document which 'ex-facie' is a 'forged' and a manipulated document. Just to avoid the true position viz-a-viz. The 'Corporate Guarantee' as being 'not accepted' and duly 'CROSSED', the Defendant No,6 herein, however after making out very strong and ex-facie case, UN-CONDITIONAL LEAVE TO DEFEND THE SUIT' has already been granted in this case to Defendant No,6 amongst other guarantors. The granting of UNCONDITIONAL LEAVE TO DEFEND THE SUIT' to Defendant No,6 amongst other guarantors renders the possibility of any decree in favour of the Plaintiff Bank very much doubtful.
47. Per Mr. Zeeshan Abdullah, through the instant application under Order XXXVIII, Rules 5 and 6, C.P.C, [C.M.A. No,8617 of 2008], the Plaintiff Bank is trying and intending to achieve its' after-thought object indirectly though at the granting of 'UN-CONDITIONAL LEAVE TO DEFEND APPLICATION', Defendant No,6, of course, failed/remained unable to achieve its' nefarious goal. No doubt, subsection [9] of section 10 of the F.I.O., 2001, provides that the Court may grant leave with or without imposing any condition. Being advantageous both subsections [8] and [9] of section 10 of F.1.0., 2001, are reproduced respectively hereinbelow:-
(8) Subject to section 11, the Banking Court; shall grant the defendant leave to defend the suit if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto it is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded.
(9) In granting leave under subsection (8), the Banking Court may impose such conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit of cash or furnishing of security. [Emphasis supplied].
48. Evidently, in view of the 'peculiar facts' and 'circumstances' of the case, this Court ultimately came to the conclusion that the Defendant No,6 [Alleged Guarantor] has not only made out a very strong case but also successfully raised 'substantial questions' of 'law' and 'facts' thus was granted 'UN-CONDITIONAL LEAVE TO THE SUIT'. Notwithstanding the above, the Plaintiff Bank now in its' own wisdom is seeking an order for 'ATTACHMENT BEFORE JUDGMENT' which otherwise, would tantamount to deprive the Defendant No,6 from its' property which is not charged or mortgaged with the Plaintiff Bank for securing any kind of finances extended to the Defendant No,1 [Principal Customer herein]. Grant of the instant application under Order XXXVIII, Rules 5 and 6, C.P.C. [C.M.A.
No,8617 of 2009], per Mr. Zeeshan Abdullah, otherwise, would amount to and render the 'LEAVE-TO- DEFEND' granting order passed in this suit as well as Order dated 24.12.2012 for 'REDEMPTION/RELEASING DOCUMENTS' of the 'subject property' passed in Suit No,81 of 2009 [Bank Al- Falah Limited v. M/s. Interglobe Commerce Pakistan Ltd. And others] as redundant and of no legal effect.
49. To better understand and appreciate the points involved in the instant case, it would be advantageous to refer to in briefs the facts with regards to the earlier mortgage of the 'subject property' in favour of the Plaintiff Bank by the Defendant No,6 briefly as follows:- The Plaintiff Bank earlier extended finance facilities to the Defendant No,6 viz. M/s Interglobe Commerce Pakistan (Pvt.) Ltd. Which are not the 'subject matter' of the instant bearing Suit No, B-01/2008. [Bank Al-Falah (Pvt.) Ltd. v. Callmate Telips Telecom Ltd. And others] including defendant No,6 herein as 'alleged guarantor'. ii. Regarding the said facility the Defendant No,6 herein, was the 'principal customer'. The Defendant No,6 herein, in respect of the said finance facility, extended to by the Plaintiff Bank [not subject matter of this suit] 'committed default' in repayments thereof. As a consequence, the Plaintiff Bank herein had filed suit against the defendant No,6 in the Banking Court No,III, Karachi, bearing Suit No,81/2009 [BANK AL-FALAH LTD. v. INTERGLOBE COMMERCE PAKISTAN (PVT.) LTD. AND OTHERS]. The Defendant No,6, being 'honest' and' true on its' part vis-a-vis the claim owed of the said Suit, thus had moved an application seeking thereby 'redemption of its' property', however, upon full payment of the Bank's claimed amount.
50. Mr. Zeeshan Abdullah, further submitted that Banking Court No,III at Karachi, vide order dated 25.08.2009, was consequently pleased to dismissed 'LEAVE TO DEFEND APPLICATION' of the Defendant No,6 herein who was Defendant No,1 in Suit .No,81 of 2009 and resultantly the Suit No,81 of 2009, filed by the Plaintiff Bank was decreed, however, with further direction to the effect that upon payment of the DECRETAL AMOUNT, the 'subject property' of the present Application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C. [C.M.A. No,8617 of 2009] shall stand redeemed in favour of the Defendant No,6 company herein. The Plaintiff Bank herein, however, feeling aggrieved itself by the said Order of August 25, 2009 [I.E. PART OF THE ORDER PERTAINING TO REDEMPTION], preferred an 1st Appeal No,45 of 2009 before this Court. The said 1st Appeal was later- on 'disposed off' by a 'consent order' of the Division Bench of this Court whereby, last 4 lines of the impugned order dated 25.08.2009 was ordered to be deleted from the impugned order. The part of order dated 25th August, 2009 reads as follows:- "We would, therefore, allow this appeal and would accordingly delete the last four lines from the last para of the impugned order, beginning with the words "It is". We may, however, observe that it hardly needs mention that the respondent No,), the mortgagor shall be in his right to seek redemption of the mortgage property upon liquidating their liabilities towards appellants bank in terms of the Supplemental Memorandum confirming deposit of title deeds (Annexure B/4 to the Appeal)." [Underlining is mine].
51. From the record, it further reveals that the Defendant No,6 herein, had moved two applications in Suit No,81 of 2009 in the Banking Court No,III, Karachi seeking thereby the redemption of its'
MORTGAGE PROPERTY, however, upon payment of the decretal amount. The aforesaid applications were, however, also contested by the Plaintiff Bank. The Hon'ble Banking Court No,III at Karachi, nonetheless, after hearing of arguments allowed the same vide order dated 24.12.2012 inter cilia DIRECTING the Plaintiff Bank to return 'TITLE DOCUMENTS' of the 'subject property' to the Defendant No,6 herein. The Plaintiff Bank, nevertheless, against the aforesaid order preferred another 1st Appeal bearing No,12 of 2013 [BANK ALFALAH LTD. v. M/S INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD] before the Hon'ble Division Bench of this Court. The said 1st Appeal when came-up on 12.12.2013, before a Division Bench of this Court then the Division Bench of this Court, while, upholding the 'ORDER OF REDEMPTION' of the 'subject property' dated 24.12.2012, passed by the Banking Court No,III at Karachi, 'disposed off the appeal, however, keeping in view the apprehensions shown by the counsel of the Plaintiff Bank, directed the Banking Court not TO RELEASE THE TITLE DOCUMENTS OF 'SUBJECT PROPERTY' till the instant application bearing C.M.A. No,8617 of 2009 is heard and decided by this Court. The Division Bench of this Court, however, it is significant to note in the said order clear observed that this court shall be free to decide this application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C. In either way on merits and in accordance with law.
52. From all the above, it is abundantly clear that the 'SUBJECT PROPERTY' VIZ. BEARING NO.99, CF-1/5, CLIFTON, KARACHI is no longer under any charge of the Plaintiff Bank. The 'subject property', of course, is absolutely free from all sorts of encumbrances/charges of the Plaintiff Bank. The 'aforesaid order' of 12.12.2013 has not been challenged/questioned by the Plaintiff Bank before Hon'ble Supreme Court of Pakistan, as such now the same has 'attained finality'. Any obstruction as now being created by the Plaintiff Bank viz-a-viz. The 'vested rights' of Defendant No,6 Company to deal with its' subject property', of course, is not only unjustified but also not sustainable under the law/judicial orders, already passed by Banking Court No,III, at Karachi, substantiates that the 'SUBJECT PROPERTY', is not liable to be attached in the instant suit because the Defendant No,6 is not going to 'disposed off the 'SUBJECT PROPERTY' in question with:-
[a] 'intent' to obstruct or delay the execution of a decree which may likely be passed against Defendant No,6 company.
[b] In the case in hand after framing of issues and recording of evidence in pro' and 'contra' of the pleas/versions of the parties.
53. Moreover, since, the Defendant No,6, keeping in view 'judicial orders' and the materials available on record, has already entered into a 'Memorandum of Understanding' i.e, undoubtedly with an intent to 'pay off the decretal amount to the Plaintiff Bank in compliance with the 'Final Decree' already passed in Suit No,81 of 2009 [BANK ALFALAH LTD, KARACHI v. M/s. INTERGLOBE COMMERCE (PAKISTAN) PRIVATE LTD] against Defendant No,6 in its' capacity as 'PRINCIPAL CUSTOMER' of the finance facility[ies] regarding which the Plaintiff Bank's Suit No,81 of 2009 stand decreed by Banking Court No,III, at Karachi. Needless to say, the 'DECRETAL AMOUNT' has also been paid to the Plaintiff Decree Holder Bank long ago.
54. With regard to contention of Mr. Abdul Sattar Lakhani that since, FINAL DECREE against Defendant No,1 Company, has already been passed on 10.03.2008, as such, the liability of 'Defendant No,1 '/'PRINCIPAL CUSTOMER' cannot be disputed and/or otherwise, questioned by virtue of the 'common clause 7' of Annexure 'D-4' and 'D6' and 'common clause 8' of Annexure 'J/5' of the guarantees available on record, it is suffice to say, the contention so raised is misconceived inter alia for the obvious reason that in the instant case Defendant No,6 amongst other guarantors have already been granted 'UN-CONDITIONAL LEAVE TO DEFEND THE SUIT' as such under circumstances of the case, it is wrong to say that liability of the principal is the liability of the guarantor[s]. In the case IN HAND Defendant No,6 has not only denied the EXECUTION OF 'CORPORATE GUARANTEE' but have also relied upon and referred to the cuttings of clause '4' of the Facility Letter which shows that it was not accepted by the Defendant No,6. No doubt, the cuttings have been alleged as an 'ARBITRARY' and not accepted by the Plaintiff Bank but this dispute of cuttings/crosses of documents to be proved/disproved through cogent evidence. It is important to note that in the present case UNCONDITIONAL LEAVE TO DEFEND THE SUIT has already been granted to the Defendant No,6 amongst other guarantors vide order dated 20.04.2009 and, of course, now parties to lead evidence in support of their 'pro' and 'contra contentions after framing issues in this suit.
55. Mr. Abdul Sattar Lakhani's next contentions that 'Sponsors' and Directors of the Defendant No,1 Company herein [i.e, Defendants Nos.2, 3 and 4 and the 'Directors and 'Sponsors' of M/s Interglobe Commerce Pakistan (Pvt.) Limited-Defendant No,6 herein] are/were also 'Directors' and 'Guarantor(s)' in the present suit as well as Suit No,B-81/2009 [Bank Alfalah Limited v. M/s Interglobe Commerce (Pakistan) Private Ltd.] before the Banking Court No,III, at Karachi, as such, by virtue of section 1[2] of Companies Ordinance, 1984 [Ordinance No,XLVII of 1984], both these concerns are actually allied concerns/closely associated concerns thus on account of almost common management of both the companies, they are responsible for each other liability. This argument of Mr. Lakhani, is not only mis-leading but also fallacious, as under law, both the companies are SEPARATE LEGAL ENTITIES and, no doubt, are run and managed by its' own Board of Directors [In short BoD]. On this aspect of the matter, reliance can be placed on the case of Pak American Fertilizers Ltd. Mianwali v. Amir Abdullah Khan and another [1984 CLC 2170] PARA 11 wherein it was observed as follows:- "11. No doubt, both the appellant-company as well as the National Fertilizer Marketing Ltd are entirely owned by the Central Government but that would not make them so indistinguishable from each other that the liability of one could be treated as liability of the other. Admittedly both were separately incorporated and the mere fact that shareholders of the one 'were also the shareholders of the other, did not suffice to treat them as one person. Reliance was placed on Re: Ebbw Vale U.D.0 v. South Wales Traffic Area Licensing Authority (I) which laid down the rule:- that a subsidiary company is not the agent of the parent company, but is an entirely separate entity. Its acts are not the acts of the parent company, and the parent company is not responsible for its acts or defaults..." [Underlining is mine].
56. Per Mr. Abdul Sattar Lakhani, the Defendants Nos.2, 3 and 4 in the present suit, have also sold their shares in M/S CALLMATE TELIPS TELECOM LIMITED [IN SHORT CTTL], illegally that is to say, without the permission of the Plaintiff Bank and have thus robbed/deprived, the Plaintiff Bank of its'
SECURITY. Mr. Abdul Sattar Lakhani, in furtherance of his arguments, placed great 'emphasis' on section 151, C.P.C. And forcefully submitted that courts of this country should not hesitate to employee inherent powers under section 151, C.P.C. Strictly and also issue thereunder INJUNCTION ORDERS against the SALE OF THE IMMOVABLE PROPERTIES if any, by the guarantors [i.e, Defendant.
No,6 herein] specially, as and when the security[ies] furnished to the Bank is found to be insufficient or 'intangible'. Mr. Abdul Sattar Laldiani, learned counsel for the Plaintiff Bank, while, refuting the stand taken by the Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6's Company to the effect that if, the securities are insufficient, as alleged by the Plaintiff Bank, then for that 'cause' and acts, the Plaintiffs Bank's own concerned officers are to be blamed for taking insufficient securities sand for that if, the bank so wishes, may take any 'appropriate action' in accordance with law against all the concerned officers/officials of the Plaintiff Bank. Responding such stand of Mr. Zeeshan Abdullah, Mr. Abdul Sattar Lakhani forcefully submitted, that stand so taken by the counsel for the Defendant No,6, is not absolutely correct because, in the case in hand sufficient securities were taken by the Plaintiff Bank from Defendant No,1 and Defendant No,5 against whom two decrees have already been passed in the present suit. The Defendant No,6, however, later on, in the course of its' business had illegal and fraudulently frittered away' the assets of the Defendant No,1 Company as such, the Plaintiff Bank now can rightly claim the holding of insufficient securities.
57. Nevertheless in the 'counter-affidavit' filed,by Defendant No,6 in its' capacity as alleged guarantor, in respect to the APPLICATION FOR ATTACHMENT BEFORE JUDGMENT UNDER ORDER XXXVIII, RULES 5 AND 6, C.P.C. READ WITH SECTION 151, C.P.C. [C.M.A. NO.8617 OF 2009] FILED. BY THE PLAINTIFF, Defendant No,6, in bold and clear words has not only denied such assertions/averments made in the application for attachment of the immovable property belonging to the Defendant No,6/the alleged Guarantor but also has averred and shown the lack of any intention to 'sell' or 'dispose of the 'SUBJECT IMMOVABLE PROPERTY' much-less with an intent to 'OBSTRUCT' or 'DELAY' the execution of any decree if passed after framing of issues and leading of evidence by the parties in 'pro' and 'contra' of their PLEAS/yERSIONS. The "drill' of Plaintiff Bank in order to procure an order for attachment before judgment under the facts and circumstances of the instant case is not justified.
The Defendant No,6, has never entered into a contract of sale with SZABIST on 08.06.2010 as alleged with an object and intent to 'obstruct' and/or 'delay' the execution of any expected decree to be passed in future against Defendant No,6's Company. In view of this position as well, the contention of Mr. Abdul Sattar Lakhani to the effect that the application under discussion filed by the Plaintiff Bank FOR SEEKING ATTACHMENT BEFORE JUDGMENT OF THE 'SUBJECT PROPERTY' WHICH ADMITTEDLY IS BELONGING TO THE GUARA,NTOR/DEFENDANT NO.6 COMPANY merits no consideration, otherwise, per Mr. Zeeshan Abdullah, the Defendant No,6's Company shall be seriously prejudiced.
58. Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6 company, moreover, made reference to the provisions of Order XXXVIII, Rule 5 of C.P.C. And forcefully submitted that for and regarding seeking an order for 'attachment before judgment', the Plaintiff Bank, in any event, is under legal obligation to satisfy this Court, by an 'affidavit' or 'otherwise', that the Defendant No,6 herein, is going intentionally to 'dispose of the 'subject property' i.e,:- i. with an intent to obstruct or delay the execution of any decree that may be passed against him ii. is about to disposed or the whole or any part of his property or iii. is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.
59. Keeping in view the above, Mr. Zeeshan Abdullah, vehemently submitted that only after fulfilling the aforesaid ingredients, the Defendant may be give direction within a 'specified time' to appear and 'show cause', as to why he should not be asked to 'furnish'/'submit' security at the disposal of the Court as and when required to satisfy the decree. Being relevant Order XXXVIII, Rules 5 and 6, C.P.C. Are reproduced herein-below respectively:
5. - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him,- a) is about to dispose of the whole or any part of his property, or b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the court may direct the defendant, within a time to be fixed by it either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
6. - (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, make such other order as it thinks fit.
60. Manifestly upon fulfillment of the above, the Court then may direct .The Defendant to appear and show cause why he should not be asked to furnish security and place the same on the disposal of the Court as and when required and sufficient to satisfy the decree. It is significant to note that the jurisdiction of the Court in attaching the property before judgment is of an extra- ordinary nature as such under the settled principle of law this jurisdiction should be exercised strictly in accordance with time tested procedure. The Plaintiff Bank, in the instant case besides having uncertainty of its' success, the likelihood of passing any decree on the basis of materials available on record is also bleak. On the above aspect of the matter, reliance is placed on the case of Muhammad .Yousaf v. Agha Amir Muhammad [PLD 1976 Karachi 926] wherein it was observed as follows:- "The Jurisdiction of Courts in attaching property before Judgment is an extraordinary nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Code. In terms Order XXXVIII, rule 5, C.P.C. Requires that before availing itself to act under this rule the C9urt should be satisfied that the defendant is about to dispose of the whole or part of his property with intent to obstruct or delay the execution of any decree that may be passed against him. The Court would not be justified in issuing an order under this rule merely because no harm would be done thereby.
As stated above no allegation of the nature as provided by law has been made in this case. I am not satisfied that the mere fact that defendant has disposed of two vehicles, leads to the conclusion that he did so or that he intends to similarly dispose of his other property, with the requisite intention. Nothing has been shown to satisfy the Court of the practical certainty of the plaintiffs success in suit, as it is yet to be proved upon oral evidence that the plaintiff advanced the huge amount without any kind of writing. Nor has the plaintiff established the existence of grave danger of the defendant disposing of his property." [Emphasis supplied].
61. Moreover, it would be relevant to briefly referred to the following points/assertions picked-up from the pleadings of parties:- i. The Plaintiff Bank has filed the present suit for recovery for an amount of Rs,258 Million against the Defendants. ii. Admittedly, the Defendant No,6 viz. M/s. Interglobe Commerce Pakistan (Pvt.) Ltd. Is not the 'Principal Customer' rather alleged guarantor. iii. The Defendant No,1 viz. M/s. Callmate Telips Telecom Ltd. [In short CITL] is admittedly principal customer, to whom all the finances have been extended by the plaintiff Bank. iv. Indeed, against all the finance facility(ies) granted to and availed by the Defendant No,1, the plaintiff Bank have also obtained securities as per their satisfaction and, of course, in pursuance and to in compliance Prudential Regulations of State Bank of Pakistan for commercial and corporate lending and advancing of financial facility (ies) . v. The BPD 's circular and Prudential, per common stand, are absolutely binding upon the Banks/Financial Institutions. vi. the securities/collaterals etc. Obtained by the Plaintiff Bank against advancing of the Finance facility(ies) to the Defendant No,] Company, are as per paras Nos.5 and 6 of the Plaint.
62. Per Plaintiff's version the secutities obtained vis-a-vis the 'subject financing' are not enough. The assertions made by the Plaintiff Bank to this effect, however, were vehemently denied by the answering Defendant No,6, as being false, misleading and perverse to the materials available on record, particularly, in view of PARAS 5 and 6 OF THE PLAINT. Without prejudice, Mr. Zeeshan Abdullah argued that even if, the securities/assets are insufficient then too it is not the fault of Defendant No,6. Rather, for such lapses, if any, the customers and/or 'concerned officials of the Bank are responsible and accountable. As far as, the Defendant No,6 viz. M/s Interglobe Commerce (Pakistan) Private Ltd is concerned, it does nothing with such lapses on the part of the Plaintiff Bank and/or officials concerned who did not obtain tangible securities from the principal customer/Defendant No,1 at the time of extension of finance[es]. The definition of word 'secured' as per SBP's regulations if read and seen in juxtaposition of 'Regulation No,3' then it becomes quite clear that the Banks/DFIs,' are bound to extend financing only upon obtaining sufficient security[ies], except on exposure upto a limit of Rs,500,000/- [Five Lacs only]. The relevant Regulations Nos.III and XVIII for ready reference are reproduced respectively hereinbelow:- "A. Regulation III: Limit on Bank's exposure against unsecured advances.---No bank shall provide financing facility in any form of a sum exceeding Rs,1,00,000 (Rupees one hundred thousand only) to any one individual or person without obtaining realizable securities of the value not below the outstanding amount. Financing facilities granted without securities including those granted against personal guarantees shall be deemed as 'clean' for the purpose of credit regulations. Provided further that- --
(a) at the time of granting a clean facility, banks shall obtain a written declaration to the effect that the borrower in his own name or in the name of his family members, has not availed of such facilities from other banks so as to exceed the prescribed limit of Rs,1,00,000 in aggregate;
(b) no clean facility shall be granted to frustrate the objective of credit restrictions in force for the time being.
(c) the purpose for which a clean facility is sanctioned shall be expressly stated in the sanction letter.
Clean facilities granted to finance the export of commodities eligible under export finance scheme shall be exempt from the per party limit on clean facilities.
The aggregate exposure of a bank against all its clean facilities shall not, at any point of time, exceed the amount of the bank's capital and general reserves (free of losses).
Ay violation or circumvention of the above Regulation shall render the bank liable, for penalties under the Banking Companies Ordinance, 1962. [Underlining is mine].
Advances given to employees of a bank in accordance with their entitlement, shall be exempt from the application of the Regulation II"
B. Regulation XVIII: Minimum conditions for grant of finance facilities.---Each bank is mandated to institute such system or procedure or take such steps as it deemed fit to ensure that defaulters are not accommodated. Every bank is, therefore, required to obtain information about the total outstanding liabilities to banks and financial institutions (from Credit Information Department of the State Bank) of any applicant seeking financial accommodation involving the sum of Rs,0.5 million or more before approving any lending. In case of those who are reportedly in default no fresh accommodation whether fund based or otherwise would be allowed unless rescheduling or restructuring of outstanding liabilities is done to the satisfaction of lending banks by the respective borrowers. If in exceptional circumstances, a bank decides to provide such financing to any person, firm or company who is reportedly a defaulter as per information supplied by the Credit Information Department or any other Banks/D.F,Is. It shall place on record circumstances or reasons necessitating grant of any accommodation in such cases. The State Bank may, if necessary, undertake special inspection of such exceptions."
63. From the above, it is quite clear that an officer of the bank who is also responsible for disbursement, if acts negligently or omits to take enough care in extending/advancing the finance facilities by ignoring the SBP's regulations applicable at the time of advancing 'finance facility[ies], then of course, such officer is liable to suffer. The bank in such eventuality, indeed, would be justified in taking an appropriate and lawful action against the responsible officials inter alia for recovery of losses/or taking action for the commission of guilt of a criminal breach of trust. In this regard section 408 of P.P.C. Being relevant is reproduced hereinbelow:- "408. Criminal breach of trust by clerk or servant.---Whoever, being a clerk or servant, or employed as a clerk, or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also he liable to fine."
64. As far as the contention of Mr. Abdul Sattar Lakhani pertaining to winding up proceedings of the Defendant No,1 viz. M/s Callmate Telips Telecom Limited herein is concerned the same being irrelevant thus merits no consideration. The Defendant No,6, it is needless to say, is a separate legal entity does nothing with winding up of Defendant No,1 Company. Besides, from the above, 'Form-29' of the Defendant No,1 Company viz M/s. Callmate Telips Telecom Limited also belies the Plaintiff Bank in its' version which clearly shows that none of the Defendants as alleged are Directors of the Defendant No,1 Company or otherwise, as alleged Defendant No,6 is sister concern of Defendant No,1's Company. In actual fact, the Defendant No,6 is a separate legal entity and still duly functioning. Likewise, the arguments of Mr. Abdul Sattar Lakhani pertaining to some NAB's and SECP's cases, have no relevance with the instant application for attachment before judgment of the property admittedly owned and belonging to Defendant No,6 viz. M/s. Interglobe Commerce (Pakistan) Private Ltd. In the instant suit, Defendant No,6 has been joined only in its' capacity as alleged Guarantor regarding which the Defendant No,6 amongst other guarantors have already been granted 'UNCONDITIONAL LEAVE TO DEFEND' the suit on 20.04.2009.
65. The Plaintiff Bank herein, in actual'fact, is mixing-up things and seems in a drill to create confusion by trying to bypass the two decrees already passed against Defendants Nos.1 and 5 in their capacities as mortgagors. As far as the contention of Mr. Lakhani regarding criminal case[s], is concerned, it is admitted position that in the CRIMINAL COMPLAINT NO.580/2007, the CEO of the Defendant No,6, M/s Interglobe Commerce (Pakistan) Private Ltd has already been acquitted honorably. Besides, the reference of Mr. Lakhani, learned counsel for the Plaintiff Bank, to the 'Sale Agreement', 'News clippings' regarding NAB cases merits no consideration in the instant proceedings of civil nature. Moreover, it ii significant to mention herein that the persons to whom Mr. Lakhani, learned counsel for the Plaintiff Bank has made reference are already on BAIL and/or ACQUITTED honorably. Per record of the cas.e, all the documents viz (i) reference No,3 of 2012 pending in the Hon'ble NAB Court, (ii) Charge sheet dated 05.09.2012 and (iii) Diary sheet dated 02.05.2015, are also irrelevant much-less for decision of this application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C. [i.e, for attachment before judgment bearing C.M.A.
No,8617/2009]. No doubt, the aforesaid documents are a matter of judicial record but the same are in respect of the affairs of M/s Callmate Telips Telecom Limited only. As far as, Defendant No,6 viz M/s. Interglobe Commerce (Pakistan) Private Ltd is concerned the same being an independent legal identity do nothing with the affairs of the Defendant No,1 PUBLIC LIMITED COMPANY.
66. Moreover, the said REFERENCE is knowingly is still pending adjudication before the NAB authorities and has not been finally decided. No 'negative inference' even otherwise, can be drawn in respect of the said Reference against the accused person, as under law, an accused person is always presumed to be innocent 'unless' and 'until' he is proven guilty by a competent Court of law.
In view of this position as well, the arguments of Mr. Abdul Sattar Lakhani on this aspect of the matter are not only misconceived but also mis-leading thus merit no consideration. Ndediess to say, the NAB's Reference[s] has/have, no nexus and/or has any relevance with the application under Order XXXVIII, Rules 5 and 6, C.P.C. Read with section 151, C.P.C. [C.M.A. No,8617 of 2009].
67. Moreover, the requisite ingredients of Order XXXVIII, Rule 5, C.P.C. Are also missing, therefore, the question of any so called 'intention' does not arise. From the record, the only 'intention' that transpires is the payment of decretal amount by Defendant No,6 herein towards 'satisfaction of the decree passed in Suit No,81 of 2009 [Bank Alfalah Ltd. v. Messrs Mterglobe Commerce (Pakistan)
Private Ltd.]. Moreover, the subject property viz. No,99, CF-1/5, Clifton, Karachi is not mortgaged or otherwise, charged with Plaintiff Bank in respect of the 'subject Finance Facility[ies]' . In view of this position, no order for attachment before judgment can be passed under the facts and circumstances of the present case. On this aspect of the matter reliance is placed on the case of MCB Bank Limited v. Messrs Atlas Rubber and Plastic Industries (Pvt.) Ltd. And 6 others [2011 CLD 1550], wherein it was observed as follows:- "3. .. .More specifically, the subject property has not been charged or mortgaged by the defendant No, 3 with the plaintiff bank in respect of the finance facilities provided to the defendant No,l. An immediate question that therefore arose was as to how the subject property could be attached in terms of section 16(1) of the 2001 Ordinance. When confronted with this situation, learned counsel for plaintiff bank fairly (and in my view quite correctly) conceded that section 16(1) had no application in the facts and circumstances of the present case, and he, therefore, abandoned any prayer for attachment of the subject property in terms of that provision. However, learned counsel drew attention to subsection (4) of section 16, which expressly provides that nothing in, inter alia subsection (I) shall affect the powers of the Banking Court under Order XXXVIII, rules 5 and 6, C.P.C., and submitted that the Plaintiff Bank was entitled to an attachment before judgment of the subject property in terms of the latter provision. To substantiate his claim in terms of Order XXXVIII, learned counsel submitted that the defendant No,3 had sought to sell off the subject property after the institution of the suit and after, apparently, having been served the matter. He submitted that the plaintiff bank became aware of the 'sale only when the matter was advertised in the newspapers on or about 14-4-2010. In these circumstances, according to learned counsel, all the ingredients of rules 5 and 6 of Order XXXVIII were attracted and the property was liable to be attached"
"5. It is, of course, settled law that simply because a person has given a personal guarantee in respect of an outstanding loan, that does not" mean that he therefore stands precluded from dealing with his properties and assets in accordance with law and in such manner as he deems appropriate. Simply because a suit has been filed against a guarantor does not in and of itself entitle the creditor to come forward and; in effect, restrain the guarantor from dealing with his properties. The creditor must show something specific and additional as required in terms of Rule 5 of Order XXXVIII, i.e,, that the concerned defendant is disposing off, or is about to dispose off his property with intent to defeat or delay any decree that may be made in the suit. A mere bald assertion in this regard is not enough. In the facts and circumstances of the present case, it appears that the only reason why the plaintiff bank seeks relief by way of attachment before judgment is on account of the advertisement that appeared with regard to the subject property and the sale transaction in respect thereof. In my view, this is insufficient to entitle the plaintiff bank to obtain attachment before judgment. If at all the plaintiff bank succeeds against the defendant No,3, it would be entitled to a personal decree 'against him in respect of the amount decreed against him. In such an eventuality (and of course, it is to be noted that this is something that remains yet to be decided), if the defendant No, 3 fails to make payment of the decretal amount, the plaintiff bank would be required to pursue execution proceedings against the said defendant in the manner required by law. In my view, 'simply on the basis of a bald assertion, and without anything more, the plaintiff Bank cannot be allowed to bypass the process of the law and, in effect, obtain something against the defendant No,3 to which it is not directly entitled, i.e,, an immediate judicial order in respect of his property. [Underlining is mine].
68. Like-wise, in the case of Muhammad Ather Hafeez Khan v. .Messrs Ssangyong and Usmani JV [PLD 2011 Kar. 605], the Court while, dilating upon the issue of attachment before judgment held that. The aim and purpose behind Order XXXVIII, C.P.C., is not to provide guarantee vis-a-vis the claim of a Plaintiff who approaches Court for seeking an attachment before judgment. The portions being relevant read as follows:- "10. ... The purpose behind Order XXXVIII is not to guarantee to a plaintiff that there will always be an asset available in the jurisdiction to satisfy his claim, should he ultimately succeed in his action. That is not the function or duty of a court of law The purpose behind Order XXXVIII is to ensure that a defendant does not abuse the process of the court, in the sense that he is able, pending adjudication of the claim against him, to make himself judgment proof. That his acts, undertaken in the normal course, may for all practical purposes have such an effect is also not sufficient: it must be shown that he acted with intent to bring about such an effect. "[Underlining is mine] "21. The last point that needs attention is the submission by learned counsel for the plaintiff that the situation at hand is covered by Order XXXIX, rule 1(b), C.P.C. This provision empowers the court to grant an injunction if "the defendant threatens or intends to remove or dispose of his proper with a view to defraud his creditors". While in one sense, the language of this provision is broader than that used in Order XXXVIII, Rule 5 (inasmuch as a mere "threat" is sufficient), in its applicability, the provision is narrower, and indeed, directed towards another purpose altogether.
The objective is to prevent a defendant from "defrauding" his "creditors", and not to defeat or frustrate any decree that may be made against him. The material on which the court can come to one or the other of these conclusions is not the same, and what may be sufficient for one purpose may be insufficient or irrelevant for the other. The threat or intention must be established by definite information, and a case of fraud clearly spelt out." [Underlining is mine].
69. As to the last submission of Mr. Lakhani, learned counsel for the Plaintiff Bank to the effect that if, this Court comes to the conclusion that Plaintiff has failed to make out any case as being fit within scope of Order XXXVIII, Rules 5 and 6, C.P.C., then this Court has ample Powers under section 151, C.P.C., to pass an order for attachment before judgment vis-a-vis the immovable property belonging to Defendant No,6, it is suffice to say that in view of specific provisions of law such discretionary Powers cannot be exercised. On this aspect of the matter reliance is placed on the case of United Bank Ltd. Through Corporate and Industrial Restructuring Corporation. (CIRC), Karachi v. Heryana Asbestos Cement Industries (Ltd.) and 20 others [2006 CLC 1272], wherein it was observed as follows:- they invoked the inherent jurisdiction of this Court by filing application under section 151, C.P.C. The said provision will be applicable if there is no other provision available in the Civil Procedure Code to deal with the situation. In the present case the provision in the shape of Order XXI, rule 89, C.P.C.
Was available to J.Ds.3 and 5 but they did not invoke the said provision, as such, the application under section 151, C.P.C. In the present circumstances of the case are not maintainable... "
[Underlining is mine].
70. Moreover, the .'Corporate Guarantee' allegedly executed by defendant No,6 herein, has been seriously disputed by the Defendant No,6 in its leave to Defend Application [C.M.A. No,1607 of 2008].
Besides any liability under the aforesaid Corporate Guarantee or otherwise, has been forcefully denied by Defendant No,6 herein. Keeping in view the serious dispute vis-a-vis the alleged CORPORATE GUARANTEE[S] etc. And on account making out a good prima facie case, this Court has already granted 'UN-CONDITIONAL LEAVE TO DEFEND THE SUIT' to Defendant No,6 and other guarantors [i.e, Defendants Nos.2, 3 and 4 herein], which, indeed, renders the possibility of any decree in favour of the Plaintiff Bank as remote and un-certain.
71. The granting of the 'UN-CONDITIONAL LEAVE TO DEFEND THE SUIT' has not only sheds clouds on the genuineness of the Corporate Guarantee allegedly executed by Defendant No,6 but also bleaks the likelihood of passing of any decree in-favour of the Plaintiff Bank very much doubtful. In such like situation, the benefit of doubt vis-a-vis non-passing of any decree much-less in near future goes in favour of Defendant No,6 amongst other guarantor i.e, Defendants Nos.2, 3 and 4 herein. In the instant suit, it appears that so far no issues have been settled. Nevertheless, upon settlement of issues parties i.e, Plaintiff Bank and Defendants Nos. 2, 3, 4 and 6 have to lead evidence in 'Pro' and 'Contra' of their pleas/versions.
72. As far as the case laws i.e, cited by Mr. Abdul Sattar Lakhani, learned counsel for the Plaintiff Bank are concerned,"the same except the case reported in 2011 CLD 1550 are distinguishable under the facts and circumstances of the present case. As far the Case-Law reported in the case of MCB Bank Limited v. Messrs Atlas Rubber and Plastic Industries (Pvt.) Ltd. And 6 others [2011 CLD 1550] is concerned, the same on the face of it fully supports the case of Defendant No,6 herein and not of the Plaintiff Bank. In so far, the case-laws cited by Mr. Zeeshan Abdullah, learned counsel for the Defendant No,6 are concerned, the same beside relevant fully cover and support the case of the Defendant No,6 Company.
73. Before parting with this order, I must clarify that the observations 'made hereinabove are tentative in nature and shall not prejudice the case of any party to the instant suit which, of course, shall be decided on merits and in accordance with law after framing of issues and recording of evidence of Plaintiff Bank and Defendants Nos.2, 3, 4 and 6.
74. The nutshell of the above discussion is that the Plaintiff Bank has failed to make out a case for attachment before judgment of the immovable property bearing No,99, CF-1/5, Clifton, Karachi, under the prevailing facts and circumstances of the instant case. In view of this position, consequently, C.M.A. No,8617 of 2009 stands dismissed, however, with no order as to cost.