IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the judgment and decree dated 03.04.2017 and 09.05.2017, respectively, passed by the learned Single Judge in Suit No.428 of 2012.
2. Briefly stated the facts of the case are that the respondent is the owner and proprietor of Sardar CNG Filling Station, situated on plot No.C-85, Block-4, Scheme No.36, Gulistan-e-Johar, Karachi. The respondent since required certain finances he approached the appellant and thereafter obtained finance facility in the year 2007 under Ijara Finance Facility for Pak Rs.14.23 million and also obtained Letter of Guarantee Facility for Rs.3.3 million by mortgaging his bungalow bearing No.C-103, Block-J, North Nazimabad, Karachi, measuring 600 square yards. The respondent handed over the original documents of the said bungalow to the appellant on 16.05.2007. The Ijara facility in the sum of Rs.14.23 million was granted to the respondent, which subsequently was fully settled/paid off and thereafter the respondent through letter dated 20.02.2012 requested for withdrawal of the guarantee and also requested for return of the documents of the above referred property. Necessary formalities in this regard were duly fulfilled by the respondent; however the appellant on one pretext or the other delayed the matter regarding return of the original documents of the property. It is an admitted position that the respondent made hectic efforts for the return of the original documents. Being aggrieved with the treatment of the appellant, the respondent made complaint with the Banking Mohtasib against the appellant, who after hearing the parties directed the appellant to help the respondent in getting the Certified True Copy (CTC) of those documents from the concerned authorities. In the meantime, the respondent contacted the Gandhara Consultants, who were on the panel of the appellant, who opined that since the original documents were misplaced hence the value of the property has to be depreciated by 50%. It is in this background that the respondent filed a suit for compensation and damages of Rs.30 million against the present appellant for redressal of his agony, mental torture and for compensating the loss caused to him by way of misplacing the original documents of the property the matter proceeded before the learned Single Judge in Suit No.428 of 2012 who framed the following issues: 1) Whether original title documents of plaintiff's bungalow bearing No. C-103, Block J, KDA Scheme No.2, North Karachi misplaced/lost by the defendant?
2) Whether if original title documents misplaced/lost, the sale value on duplicate documents of this property depreciated/devalued by 50% ?
3) Whether plaintiff is entitled for compensation/damages as prayed by him on account of depreciation of the price of his property and damages for shock and mental torture?
4) Whether the defendant is liable to pay the compensation/ damages to plaintiff?
5) Whether the suit filed without cause of action and not maintainable?
6) What should the decree be?
3. The learned Single Judge after examining the parties and after fulfilling the other necessary legal formalities, except the issue No.5, answered all the other issues in affirmative and decreed the suit for an amount of Rs.7 million, as against the claim of Rs.30 million made by the present respondent; vide the judgment impugned in the instant appeal. It may be noted that no appeal against the said judgment has been filed by the present respondent.
4. Mr. Jaffer Raza Advocate has appeared on behalf of the appellant and stated that the judgment /order of the learned Single Judge is not in accordance with law, as the learned Single Judge has never examined the Gandhara Consultants and thus violated the Article 59 of the Qanun-e-Shahadat Order, 1984. He further stated that the valuer has given contradictory reports, as in the first report dated January 21, 2012 they have opined that resale value of the property on duplicate documents (CTC) will depreciate by 50%, whereas in the subsequent report dated March 25, 2015, they have mentioned that the value of the property is Rs.37 million hence, according to him, there is a marked contradiction in these two reports by the Gandhara Consultants, therefore, according to him, their reports could not be relied upon. The learned counsel next submitted that while the suit was pending a request for framing two additional issues was made before the learned Single Judge vide C.M.A. No.13222/2014 and the learned Single Judge vide order dated 13.10.2014 was pleased to frame the following additional issues: Additional Issues:
(1) Whether the plaintiff is a customer of the defendant Bank as defined under the Financial Institutions (Recovery of Finances) Ordinance, 2001?
(2) Whether any loss has accrued to the plaintiff and if the defendant bank is liable to pay any amount to the plaintiff?
5. He submitted that perusal of the impugned decision would reveal that the learned Single Judge while adjudicating the matter has failed to adjudicate upon the said additional issues, hence, his order is not in accordance with law. The learned counsel in this regard placed reliance on Order XX, Rule 5, C.P.C. The learned counsel further stated that perusal of the cross-examination would clearly reveal that the respondent has not tried to sell the property on CTC hence the question of any loss suffered to him hardly arises. He in this regard invited our attention to the cross-examination of the respondent. The learned counsel, in the end, submitted that in view of these facts the matter may be remanded to the learned Single Judge with the directions to examine the valuer and to decide the matter on the two additional issues, which skipped his attention and to re-examine the aspect that no loss at present is being caused to the respondent.
6. Mr. Mehar Khan Advocate has appeared on behalf of the respondent and supported the order of the learned Single Judge and stated that the order of the learned Single Judge is based on evidence and after examining the parties at length. He stated that negligence in this matter has been established and proved and the respondent deserves that he should be compensated for the loss caused to him. The learned counsel, while elaborating his viewpoint, submitted that no prospective buyer would purchase the property on the basis of CTC. He stated that whether the bank would give loan or mortgage on any property on the basis of CTC. He stated that the answer to this question definitely would be in "Negative". He stated that the respondent can enjoy the possession of the property but would suffer heavy loss in the event he wants to dispose of the same and thus has to be compensated in this behalf by the bank for their negligence. He submitted that the bank authorities never made any investigation as to who was negligent in misplacing those documents. He stated that Gandhara Consultants was among the panel of consultants of the appellant bank who have given their report in his favour. He stated that there was no occasion of examining the said Gandhara, since they have given contradictory reports and thus has become hostile and was not eligible to be examined, who was rightly not examined by the learned Single Judge. He stated that no doubt additional issues were framed but perusal of the record would reveal that had these two additional issues been decided, the ultimate result would have been the same, in view of the admitted position arising in the instant matter. He further stated that Order XX, Rule 5, C.P.C. is not applicable in the instant matter as it is the prerogative of the Judge to consider or not to consider any issue before him and the learned Single Judge, while passing the order, did not deem it necessary to discuss those two additional issues as other issues decided by him would cover the controversy between the parties, even if these two additional issues were not taken up by him. He further submitted that bank has no concern whether the respondent has not yet sold the property and has not made any effort for selling out the same but it is an admitted position that when the original documents were lost by the bank, loss is bound to be caused to the respondent, as in the event of selling out the property every prospective buyer would definitely ask for the original documents and in case of their non-availability would either not enter into sale agreement with the respondent or would pay much lower price than prevailing in the open market, hence, the assertion of the learned counsel for the appellant that since no sale of the property has taken place hence loss is Caused to the respondent is a fallacious argument and not worth consideration and quite rightly was discarded by the learned Single Judge. He lastly submitted that no doubt no appeal was preferred by the respondent against the order of the learned Single Judge but under the facts and circumstances of the matter the order of the learned Single Judge appears to be fair and reasonable and may be upheld.
7. We have heard both the learned counsel at considerable length and have also perused the record.
8. From the arguments of Mr. Jaffer Raza it is evident that he has primarily raised three issues i.e. 1) Gandhara Consultants was not called as a witness, 2) no decision was given on additional issues and 3) no loss has been caused to the respondent. Record clearly reveals that the appellant moved an application bearing C.M.A.
No.12341/2015 for calling Gandhara Consultants as a witness and the said application was dismissed vide order dated 30.09.2015 against which no appeal was filed hence, in our view, this point is no more available to the learned counsel for the appellant at this stage.
9. So far as the decision on additional issues is concerned, perusal of these additional issues would reveal that both these issues in fact have been admitted by the appellant as Mr. Jaffer Raza was categorically asked a question that is it really necessary that every matter between the bank and its customer has to be dealt with by Banking Tribunal, to which he candidly conceded that the matter with regard to financial aspects only are to be dealt with by the Banking Tribunal, whereas the record reveals that in the instant matter the suit was filed by the present respondent for compensating him in respect of the loss caused to him due to misplacing of the original documents and the negligence shown in this behalf. Hence, the argument of the learned counsel on this aspect also does not support his view as taken before the learned Single Judge and before us, especially if viewed on the fact that the bank has categorically admitted that though original documents were misplaced but they helped the respondent in getting the CTC, which admission clearly reveals that due to their negligence original documents were lost and it could not be said that the respondent at present is standing on the same pedestal had he be having the original documents of the property in his possession. We asked another question from Mr. Jaffer that whether their bank would mortgage any property on CTC, to which he candidly replied in "Negative".
Then we again asked from Mr. Jaffer Raza that could this situation be not considered a disadvantageous position for the respondent? Though he replied in affirmative but stated that the loss would be caused to the respondent when he will sell out the property and since the property has not been sold yet, hence, the loss could not be ascertained at this stage. We disagree with the contention of Mr. Jaffer, as it is a settled practice that any prospective buyer before entering into purchase of any item demands its original document, be it a car, land, plot or any saleable commodity. Can a person having original documents be put at par with a person who does not have original documents with him? We are sanguine that the answer to this question would be in "Negative". The person buying any item on CTC does so at his own calculated cost and risk for which he alone is responsible subsequently. Now if the instant case is examined it would establish that hectic efforts were made by the respondent by approaching the bank for handing over the original documents after paying out the liability and only when he received no positive response from the bank thereafter he adopted the legal procedure. In the cross-examination also the respondent has categorically admitted that he has not borne any loss yet but loss will be caused to him when he will sell out the property, which aspect supports his view rather than to be considered be against him. As per the record, Banking Mohtasib and the State Bank of Pakistan have also given their opinion in favour of the respondent. The witness of the bank Mazhar-ud-Din has admitted in his evidence that if the documents are misplaced the person would come under tension. The said witness has also admitted that the respondent has visited the bank a number of times. If all these factors are considered in juxtaposition it would become evidently clear that the respondent has suffered due to the inefficiency and negligence shown by the bank and has to be compensated by the bank in this behalf. So far as the quantum is concerned, no yardstick could be laid down in this behalf and the same has to be based upon the facts of each case. In the instant case though a compensation of Rs.30 million was claimed by the respondent but the learned Single Judge after thrashing out the matter in detail through his elaborate and erudite order has granted the compensation in the sum of Rs. 7 million to him, which in the circumstances does not appear to be on excessive side. It may be noted that the property is situated on the main road of Block-J. It is a corner property and most of the properties on the said road are commercial in nature, hence if sold today the property would fetch a handsome amount but equal true is the fact that in absence of original documents the actual market price prevailing on the date of sale would hardly be achieved. The learned Single Judge has discussed a number of decisions of the Hon'ble Superior Courts while granting the compensation and curtailing the claim of compensation from Rs.30 million to Rs.7 million and under the circumstances of the matter we see no reason to interfere in the said order passed by the learned Single Judge, the same is, therefore, upheld as a result of which the instant High Court Appeal is dismissed along with the listed application.
10. Above are the reasons of our short order dated 19.11.2019.