The admitted facts of this case are that the plaintiff, who in past had served defendant No,1, joined BCCI (SA) in the year 1978 and was posted at Saudi Arabia as Country Manager. A copy of appointment letter dated 25th July, 1978 is filed as Annexure 'Cto the plaint. It is also a fact that the plaintiff served with defendant No,2 till 3rd June, 1992 when his services were terminated vide letter dated 5th May, 1992 when at the relevant time plaintiff was serving with BCCI Egypt SAE; that the plaintiff has also obtained house loan of US $ 71,000, which was disbursed at Karachi in Pak Rupees 6,98,400 as against property documents of House No,E-52, Block 4, Gulshan-e-lqbal, Karachi, which were delivered as security. It is also not denied that the rate of interest on the said house loan was fixed at the rate of 5% per anum up to US $ 33,300 and 7% per annum for the remaining amount. The plaintiff has also admitted disbursement of US $ 70,580.53 as house loan. It is further case of the plaintiff that the surrender of title documents is neither an equitable nor any other kind of mortgage but at the same time he had admitted that the title documents were handed over to the defendant No,2 namely BCCI (SA). It is claimed by the plaintiff that up to March, 1992 he has repaid instalments of the house loan amounting to US $ 17,730. The main claim of the plaintiff in suit is for recovery of provident fund, which is lying with the defendant No,2, which is equal to Pak Rupees 30,82,375. In support he has filed Annexure 'Bas well as Annexure 'Eto the plaint; the latter is a statement of BCCI SA, issued by the Branch BCCI Misr H.O. Cairo, showing an amount of US $ 1,10,072.04, lying as provident fund belonging to the plaintiff, who has also included in this suit the claim for the amount of outstanding salaries, amount of notice period, air fare, baggage and transportation charges from Egypt to Pakistan, amount of litigation incurred by the plaintiff in defence of his prosecution at Egypt as well as damage of US $ 200,000 for the hardship, mental agony and dislocation of his personal life and that of his family life as a result of liquidation of BCCI and his transfer from Egypt. He has also prayed that the purported equitable mortgage in respect of the house at Gulshan-e-Iqbal be declared to be void, inoperative and being opposed to the public policy. He has also prayed for a money decree for Rs,1,35,60,625, recovery of his provident fund and in alternate preliminary and final decree for redemption. Following is the break-up of the different claims of plaintiff as mentioned in Schedules 'Aand 'Bto the plaint:-- SCHEDULE 'A'
(1) Arrears of salary US$ 9,308.00
(2) Accrued holiday pay US$ 18,152.94
(3) Outstanding severance/ redundancy payment US$ 65,164.40
(4) Outstanding payment in lieu of notice US$ 13,964.00
(5) Amount of claim in respect of air fare, baggage, income-tax subsidy, tax refund, remittance made to Provident Fund but withheld by BCCI (Misr)
(6) Hardship, mental agony, dislocation of personal life and family rehabilitation cost and recompense etc.US$ 1,02,540.00
(7) Litigation expenses incurred in Egypt and cost of prosecution of case in Pakistan US$ 10.000.00 Total: US$ 4,19,129.34 Equivalent to: Rs,1,04,78,250.00 SCHEDULE 'B'
PROVIDENT FUND Total balance of Provident Fund without addition of Investment Income from January, 1991 onwardUS $ 1,13,484.04 up to December, 1990 January 1991 to May, 1991 US $ 3,270.00 June 1991 to March, 1992 US $ 6,540.00 Total: US $ 1,23,294.04 Equivalent to Pakistani Rs,30,82,375.00 Note: The plaintiff is entitled to the addition of Investment Income upon the investment of the Provident Fund.
The deductions of Provident Fund were made at source out of the monthly salary of the plaintiff each month."
Defendants have raised objection to the maintainability of this suit on the grounds, inter alia, want of jurisdiction; pending of liquidation proceedings which is earlier in time; limitation and finally, competency of this Court to decide the claims of the plaintiff which are sub judice before the liquidators. In respect of the illegality and mala fide proceedings of liquidation of BCCI (SA) and BCCI (OS) and in respect of illegality of the amalgamation of BCCI (Pakistan) with Habib Credit and Exchange Bank Limited such allegations have been vehemently denied by all the defendants. However, in respect of the service and other claims of the plaintiff, the same have been denied for the lack of knowledge. The present suit, to some extent is on different footing to the other cases arising out of dispute between former employees and BCCI, which lack material particulars. In the instant case, the plaintiff has filed his initial appointment letter dated 9th February, 1988 of BCCI (OS) issued from Karachi, Pakistan, showing receipt of remittance of Rs,6,98,400 from BCC London as outstanding loan amount of US $ 30,580.53. Letter dated 5th May, 1992 from Attorneys of BCC Cairo, Egypt terminating services of the plaintiff. The plaintiff has also established the fact that he has already lodged his claim of US $ 1,02,540.00 with the liquidators to the exclusion of amount mentioned against Items Nos. .6 and 7 above.
2. During the course of hearing, Mr. Abrar Hasan, Advocate for the plaintiff has placed before this Court a report of the English Liquidators of BCCI (SA) to the Secretary of State for Trade and Industry, U.K. Which was submitted before the High Court of Justice, Chancery Division, Companies Court, London, (Ref. No,007616 of 1991) in the matter of BCCI (SA) Liquidation. It reveals several facts pertaining to the dates and orders passed for Liquidation of BCCI and about its assets. Following few pages from the aforesaid report would be relevant in order to understand the submissions of Mr. Abrar Hasan thus reproduced as follows:-- "The collapse of the BCCI Group has received wide publicity. Nevertheless, the English Liquidators believe that it may be of assistance to summarize the progress of the liquidation so far.
BCCI SA was incorporated in Luxembourg in September, 1972. By 1991 BCCI SA was one of the two principal operating subsidiaries of BCCI Holdings, also incorporated in Luxembourg. The other principal operating subsidiary of BCCI Holdings was BCCI Overseas, which was incorporated in the Cayman Islands.
By 30 June, 1991, the BCCI Group operated in some 69 countries as follows:-- BCCI HOLDINGS BCCI SA BCCI OverseasOther Subsidiaries and affiliates 47 branches in 63 branches in260 entities in 13 countries 28 countries 30 countries At 1 p.m. On 5th July, 1991, Christopher Morris, John Richards and Micholas Lyle of Touche Ross & Co. Were appointed Provisional Liquidatorsof BCCI SA by the High Court ("the Court") on the application of the Bank of England. Following the application by the Bank of England to wind up BCCI SA in England the BCCI Group collapsed. Within days, most branches of BCCI SA and BCCI Overseas and most subsidiaries of BCCI Holdings had been placed in Liquidation (or its equivalent) by Local Authorities in the countries in which they were situated.
On 8th July, 1991, Brian Smouha of Touche Ross & Co. Was appointed "Commissaries de Surveillance" of BCCI SA by the District Court of Luxembourg. Mr. Smouha was also appointed Commissaries de Surveillance of BCCI Holdings, together with Jacques Delvaux, a Luxembourg lawyer.
In the Cayman Islands, a receiver was appointed over BCCI Overseas and associated companies on 5th July, 1991 and on 22nd July, 1991, Ian Wight and Robert Axford of Deloitte Ross Tohmatsu were appointed Provisional Liquidators of (inter alia) BCCI Overseas by the Grand Court of the Cayman Islands.
Pursuant to Letters of Request issued by the High Court in England on 5th July, 1991, partners in Touche Ross & Co.
Were appointed Provisional Liquidators of BCCI SA by the Court of Session in Scotland on 5th July, 1991 and by the High Court of the Isle of Man on 6th July, 1991.............
On 3rd January, 1992, the Luxembourg Court ordered the liquidation of BCCI SA and appointed Brian Smouha, Georges Baden and Julien Roden as Liquidators (Maitres Baden and Roden are Luxembourg lawyers).
On 14th January, 1992, an order for the winding-up of BCCI SA was made in the High Court in England. On the same day the Secretary of State for Trade and Industry appointed Christopher Morris, John Richards. Nicholas Lyle and Stephen Akers as Liquidators of BCCI SA under section 137 of the Insolvency Act, 1986.
Winding-up orders were made in Scotland and the Isle of Man on 14th and 15th January, 1992 respectively.
Partners of Touche Ross & Co. Were appointed Liquidators.
Also on 14th January, 1992, the Cayman Court ordered BCCI Overseas to be wound up and Ian Wight, Robert Axford and Michael Mackey of Deloitte Ross Tohmatsu were appointed Official Liquidators.
On 17th August, 1992, the Luxembourg Court ordered the liquidation of BCCI Holdings in Luxembourg and appointed Georges Ravarani and Claude Penning as Liquidators (Maitres Ravarani and Penning are Luxembourg lawyers).
In addition to the preservation and realization of tangible assets, considerable effort has been devoted to the areas of documentation and investigation. Until 1990, the BCCI Group shgad office was situated in London. In 1990 the head office was moved to Abu Dhabi which also necessitated moving much of the relevant documentation. The liquidators have had, therefore, not only to take control of (and collate) the very considerable amount of documentation which remained in the U.K., but also to negotiate, with the relevant authorities, access to documentation in other jurisdictions. The scale of the problem of facing the Liquidators is set out in more detail in section 5.13.3 below.
Another very significant area of the Liquidator's work to date has been the investigation of a wide range of major debtors, as well as individuals and companies closely involved with the activities of the BCCI Group (including the former auditors). These investigations have resulted in the commencement of a number of substantial pieces of litigation and are dealt with in section 5.13.1 below.
The intermingling of the affairs of BCCI SA and BCCI Overseas was such that it would be impracticable without very considerable delay and enormous expense, and might well be impossible, to determine as between the two companies, their respective assets and liabilities. In addition, since the closure, almost all of the different companies in the BCCI Group, and the foreign branches of BCCI SA and BCCI Overseas, have become the subject of a multiplicity of local liquidations or similar proceedings in the jurisdictions in which they were incorporated or located.
In order to avoid the expense, difficulty and delay which would otherwise arise, a Pooling Agreement was negotiated between the Liquidators of the principal BCCI companies and was initialled on 20th February, 1992. In brief, the Pooling Agreement proves for the pooling of the assets of the principal BCCI companies and their branches which agree to participate, and for admitted creditors all to receive the same rate of dividend out of the pooled assets ..... ...... .
Final Court Orders authorising execution of both the Pooling Agreement and the Majority Shareholder Agreements have been obtained in England and the Cayman Islands, but an appeal is pending in Luxembourg. It should be noted that if the Pooling Agreement does become unconditional, the proceeds of realisation in the hands of the English Liquidators will (subject to the provisions of the Pooling Agreement requiring or permitting retention by the English liquidators) be transmitted to Luxembourg for the purposes of the liquidation of BCCI SA by the Luxembourg Court... ... ..."
4. I have heard Mr. Abrar Hasan for the plaintiff and Messrs Mehmud Mandviwala, S.A. Sarwana and Mr. Zahid Burhani, Advocates, for the defendants. C.M.A. 3944 of 1992 is an application under Order XXXIX, Rules 1 and 2, C.P.C., filed by the plaintiff seeking interim injunction against defendant No,1 that they be restrained from handing over or from parting with the title documents of the plaintiff's property till disposal of the suit. C.M.A. 7068 of 1992 is again filed by the plaintiff under Order XXXVIII, Rule 5, C.P.C. With the prayer that an amount of US $ 5,42,423.38 equivalent to Pak Rupees 1,35,60,625 lying in Pakistan with defendant No,1 be attached till disposal of this suit or in alternate the defendants be required to furnish security in the amount as prayed. The last application C.M.A. 290 of 1993 is filed the defendants Nos. 2 to 4, which is under Order VII, Rule 10 read with Order VII, Rule 11, C.P.C. Praying for return of the plaint for presentation before the Court of competent jurisdiction or in alternate rejection of the plaint for the grounds which I would like to discuss hereinafter.
5. Plaintiff has also challenged the action in winding up of the BCCI and appointment of the liquidator on the ground of the same being illegal and mala fide. It is claimed in the plaint that due to winding up proceedings the plaintiff has suffered extreme mental anguish, physical distress including family sufferings tarnishing of his image, particularly in Pakistan in his home circle. It is also alleged by the plaintiff that he was subjected to interrogation by the Egyptian Authorities and was unreasonably and unlawfully detained there; that he was released after obtaining orders from the Administrative Court of Egypt. It is further alleged that for a long period he was not granted exit permission and, therefore, all his family suffered mental and physical distress due to the treatment and harassm ent suffered by the plaintiff. It is also claimed that the plaintiff has suffered huge losses for the liquidation proceedings of BCCI. As far as claim of damages is concerned for the act as narrated hereinbefore, suffice to say that the said cause of action was accrued, if any, against BCCI Misr and Egypt and against the Egyptian Authorities which does not fall within the territorial limits of this Court. All such persons and authorities against whom the plaintiff has alleged maltreatment and detention are not before this Court. The plaintiff, even at this stage is required to show that the people responsible for causing alleged acts have acted under the instructions of the present defendants, which element is absolutely absent in the plaintiff's case. The question of amalgamation of three branches of BCCI in Pakistan as a result of scheme framed by the Federal Government under provisions of section 47 of the Banking Companies Ordinance, 1962 was considered by G.H.
Malik, J. (as he then was) in the unreported case of Shaukat and Raza (Private) Limited and another v. Habib Credit and Exchange Bank Limited and others (Suit No,439 of 1994). I am also of the same view as of Justice G.H.
Malik, relevant portion of the said judgment for convenience sake is reproduced as follows:-- "The arguments that the scheme of merger framed by State Bank of Pakistan whereby the Karachi Branches of BCCI Overseas were merged with Habib Bank and subsequently with defendant No,1 and whereby the rights and liabilities of those branches devolved on Habib Bank Limited and subsequently on defendant No,1, is not binding on the plaintiffs is sought to be supported by the provisions of section 47(7) of the Ordinance on the ground that no suggestions or objections were invited by State Bank of Pakistan from the plaintiff as contemplated by that provision. The argument is entirely devoid of merit. By subsection (6) of section 47, State Bank is required to send a draft of a scheme to the banking company which is to be amalgamated, the transferee bank and any other banking company concerned in amalgamation for suggestions and objection; and, by subsection (7), it is empowered to make such modifications in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the banking company, the transferee bank or any other banking company concerned in the amalgamation and from any members, depositors or other creditors of each of those companies and the transferee Bank. It is, however, not the case of the plaintiffs that the draft of the scheme was modified or that they are or where members, depositors or creditors of either BCCI Overseas or Habib Bank Limited or of any other bank that may have been concerned in the amalgamation for which the scheme was made. The provisions of section 47 therefore do not apply."
6. Before proceeding any further first, I would like to take up the objection of Mr. S.A. Sarwana, in respect of jurisdiction of this Court. He has filed C.M.A. 290 of 1993 under Order VII, rule 10 read with 11, C.P.C. On the grounds, inter alia, that the defendants Nos. 2 and 3, namely BCCI (OS) and BCCI (SA) were not voluntarily residing or were carrying business within the territorial limits of this Court, at the time of commencement of this suit and secondly that all the properties and effects of both the two banks are in the custody of a Foreign Court from the date of the order of winding-up, which is earlier in time and was passed by the competent Court at Luxembourg and Grand Cayman; therefore, it is argued that this Court has no jurisdiction to deal with the properties of the said Bank. It is an undeniable fact that the subject-matter of the suits is, inter alia, the immovable property, which is located within the territorial limits of this Court. In my view, therefore, to the extent of the relief of redemption of mortgage or the relief to the extent of interest in the immovable property, it cannot be denied that some part of cause of action arose at Karachi where the mortgage was created and the property is situated. Earlier, this question was considered by me in the case of Tajuddin Khan v. Habib Bank Limited and 3 others (Suit No,554 of 1993). In all there were five suits, in which more or less similar facts were involved. The objection as to the maintainability of suits on the ground of want of jurisdiction was overruled and interim injunction was granted subject to deposit of balance amount of house loan with the Nazir of this Court. Now, I am told that none of the parties have gone in appeal, which order has attained firstly. I would like to point out that the case of Tajuddin Khan and other suits were heard earlier with sixteen(16) other cases including the present suit. The orders were announced only in respect of five (5) cases and the remaining suits were fixed for rehearing as a result of the view taken by me in the earlier cases. Therefore, these cases were reheard at length. In the case of Tajuddin Khan (supra) through an order dated 4th December, 1996 the objection to the maintainability of suit on the point of jurisdiction was overruled while making reference to section 16 of the Civil Procedure Code, 1908 and after referring to the case of Messrs Rupali Polyester Ltd. v. Dr.Nael G. Bunni and others PLD 1994 Lahore 525. In yet another case Irshad Begum v. Habib Credit and Exchange Bank Limited and another 1997 MLD 438 where BCCI through its liquidators were also parties to the, suit and where objection was raised to the maintainability of the suit for want of jurisdiction, on the ground that the Head Office of defendant-company was at Abu Dhabi and the same was not maintaining any Branch office in Pakistan, it was held by me that the suit was maintainable in view of the principles enunciated in section 20(c) of the Code of Civil Procedure, 1908. Further reliance was placed on the case of Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174. In the present suit, the plaintiff has also prayed for preliminary as well as final decree in respect of redemption of mortgage for the aforesaid mortgaged property. This immovable property involved in suit is situated within the territorial limits of this Court. Section 16(c) of C.P.C. Puts emphasis on the institution of a suit for foreclosure; sale or redemption of an immovable property mortgaged of or charged to be instituted in the Court within the local limits of whose jurisdiction the property is situated. Mr.S.A. Sarwana has also argued that there are certain claims in the suit which are outside the jurisdiction of this Court as the cause of action in respect of such claim accrued outside Pakistan and that the defendants, legally speaking were not in existence at the time when the suit was filed. This argument has some force but in my tentative view it requires production of evidence. It is not denied that the appointment letter was issued to the plaintiff at Karachi. Since a part of cause of action accrued at Karachi and since the immovable property is situated within the territorial limits of this Court, I am of the considered view that this Court has jurisdiction to try and adjudicate this suit to the extent of relief for the redemption of mortgage and for repayment/adjustment of provident fund.
7. It was also argued by Mr. SA. Sarwana that the facts of the present case differ from the case of Tajuddin Khan (ibid). According to him plaintiff in the above suit was engaged outside Pakistan while the three branches of BCCI (Pakistan) were merged/amalgamated with Habib Bank Limited on 14th March, 1992. It was further argued by the learned counsel for the defendants that the plaintiff has approached for his claim of salaries and other entitlements which are pending before the foreign liquidators and, therefore, in respect of such claim the jurisdiction of this 'Court is ousted. He has further contended that the so-called claim of damages arising out of illegal termination, harassm ent or mental shock arose while the plaintiff was serving abroad. If the argument of Mr.S.A. Sarwana is taken on the face of it then it appears to have some force. However, the factual position that Mr. S.A. Sarwana asserts is not so clear from the material that has so far come on record. The liquidation of BCCI
(OS) and BCCI (SA) was ordered by the competent Courts on findings that their conduct was not overboard.
Even in the present case, if it is true as Mr.S.A. Sarwana contends that the plaintiff was serving abroad, then the fact that the loans made to the plaintiff were disbursed through BCCI (Pakistan) at Karachi and the title documents were retained by BCCI (Pakistan) calls for detailed enquiry as it may well be that the activities of all the BCCI entities were so intertwined that the doctrine of piercing the corporate veil may be attracted. (For reference see the case of Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468). In these circumstances, all such allegations and counter-allegations and the question whether this Court also has jurisdiction over the money claims to the plaintiff require production of evidence. Such claims of all the parties cannot be decided on the filing of affidavits. Therefore, for the time being this application is dismissed with the above observations.
8. The second application has been filed by the plaintiff under section 151 read with Order XXXVIII, Rule 5, C.P.C., praying for an attachment order of the funds to be remitted by the Habib Bank Limited to the liquidators of BCCI as the plaintiff is claiming certain amount against the BCCI and of such amount is allowed to be remitted abroad he will suffer irreparable loss. The attachment application is essentially in the nature of a garnishment application against the funds belonging to the liquidators of BCCI. If the case of the plaintiff is that Habib Bank Limited is transferring its properties to defeat any decree that may be passed against Habib Bank Limited then the plaintiff must show that Habib Bank Limited is about to dispose of its properties or to remove it from the local limits of this Court to defeat the execution of the decree. Such a stance on the part of the plaintiff would be entirely untenable. In my event the plaintiff has contended that he is claiming earlier amount from BCCI and would suffer irreparable loss of this amount is remitted to the liquidators. So far as BCCI (Pakistan) is concerned, it is pertinent to note that under the scheme framed by the Federal Government under section 47 of the Banking Companies Ordinance, 1962 all the three branches of BCCI (Pakistan) were amalgamated/merged with Habib Bank Limited on 14th March, 1992 while the present suit was filed on 14th July, 1992 after the day when the BCCI (Pakistan) stood dissolved and merged into Habib Bank Limited. It is in furtherance of this amalgamation scheme framed by the State Bank of Pakistan with the approval of Federal Government that Habib Bank Limited is delivering title documents to the Liquidators of the BCCI and not with the intent to defeat or delay the execution of decree, if any. This ingredient is absent in plaintiff's case. It is settled law that in order to obtain an order of attachment before judgment a party is required to show that the defendant with intent to obstruct, defeat or delay the execution of a decree, what may be passed against it, is about to dispose of the whole or any part of its property or is about to remove whole or any part of its property from the local limits of the jurisdiction of the Court with intent to defeat any decree that may be passed against it. All these ingredients are absent in the plaintiff's application. Even otherwise, entitlement of a Creditor is fully protected under the scheme framed by the Federal Government. In case the plaintiff has any genuine claim against the defendants and this Court comes to the conclusion that his claims are maintainable then he can always seek support from the said scheme framed under section 47 of the Banking Companies Ordinance, 1962, if the Habib Bank Limited or BCCI (Pakistan) are found liable by this Court. I am also of the view that the plaintiff was not able to place enough material to support claim for the salaries and other dues. However, in my tentative view plaintiff has succeeded in establishing a prima facie case for refund of provident fund. The defendants were not able to specifically deny this claim. Their stand in their written statements are evasive to this extent. Merely on the ground of damages which are being claimed due to the suffering of the plaintiff as a result of liquidation and harassment at the hands of authorities and BCCI Officers at Egypt the plaintiff is at this stage, not entitled for the relief as prayed in the instant application and, therefore, the defendants cannot be restrained from remitting the said amount. Even otherwise the plaintiff has himself filed his claim before the liquidators.
9. Now coming to the other application filed by plaintiff under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A.) it is prayed that the defendant namely Habib Bank Limited be- restrained from handing over, delivering or in any manner parting with the title documents of all the properties to the defendants/liquidators of the BCCI till disposal of the suit. In this suit the plaintiff has also prayed for a preliminary as well as final decree for redemption.
A preliminary decree as provided under Order XXXIV, rule 7, C.P.C. Is to be passed when to the satisfaction of the Court a plaintiff "succeeds" to prove a case of passing of preliminary decree. The intent and scope of passing of a decree preliminary and final, were defined by the hon'ble Supreme Court in the case of Sultan Ali v. Khushi Muhammad PLD 1983 SC 243 in the following words:- "Now the Code of Civil Procedure requires by the provision of Order XXXIV, rule 7 that in a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree. The form in which such a preliminary decree is to be passed has been provided in great detail to declare, inter alia, the mortgage amount that is due to the mortgagee on the date of the decree and further direct that if the plaintiff pay into Court the amount so declared due, on or before such date as the Court may fix within six months from the date on which such amount is declared and pays other costs, charges and expenses, the defendant shall do the acts described in the provision to effect the redemption of the mortgage. The preliminary decree also is to direct that in case of failure to pay the amount as aforesaid, within time fixed by the Court, the defendant shall be entitled to apply for a final decree for sale of the mortgaged property or for the plaintiff to be debarred from all rights to redeem the property. Rule 8 of the same Order provides for passing a final decree in such a redemption suit in favour of the plaintiff, if he makes payment of the amount found due from him, inter alia, before a final decree debarring him from all rights to redeem the mortgage property has been passed. Sub-rule (3) gives a similar right for obtaining a final decree to the defendant in case of failure to pay the amount on the part of the plaintiff, inter alia, to debar from him all rights to redeem the mortgage property... ... ..."
10. In the present suit the plaintiff is able to satisfactorily show that his amount of provident fund is still lying with BCCI. His claim for repayment of part of principal loan amount coupled with his claim of provident fund entitles him for grant of preliminary decree for redemption of mortgaged property. I am also conscious of the fact that a large number of people are still awaiting settlement of their claims before the liquidators. Any delay in conclusion of proceedings of this suit would cause hardship and inconvenience to those claimants: Therefore, it would be just, fair and reasonable as well as in the interest of all the parties that the claim of the plaintiff as well as his liabilities vis-a-vis mortgaged property are settled at any early date. As a result of above discussion, I dispose of all the three applications with the following directions:--
(a) For the time being the defendants including Habib Bank Limited, its concerned Officers and employees are restrained from delivering, handing over or parting with the title documents of the mortgaged property/suit property.
(b) A preliminary decree in terms of Order XXXIV, rule 7 read with Form 7-A, Appendix D to the C.P.C. Is hereby passed and the Official Assignee is appointed as Commissioner.
(c) The learned Commissioner is directed to conclude his proceedings in terms of the preliminary decree on or before 30th day of November, 1997.
(d) Tentatively, the Commissioner's fee is fixed at Rs,10,000. Share of the plaintiff is Rs,5,000 while the remaining amount of Rs,5,000 would be paid by the defendants equally. The parties are directed to deposit their respective share of fees within two weeks hereof.
(e) That the defendants or the Commissioner, as the case may be, shall be entitled to move this Court for vacation of interim injunction granted vide para. (a) above in case from the conduct of plaintiff he finds it difficult and hard to conclude proceedings within the time as allowed by this Court in above paragraph. It would be open to the plaintiff as well as to the Commissioner to make reference to this Court in case the defendants attempt to delay the proceedings before the Commissioner.
(f) The parties are directed to appear before the learned Commissioner/Official Assignee at an early date and are required to supply copies of their respective pleadings, claims, counter-claims (including claim for payment/adjustment of provident fund) and detailed statements of accounts.
(g) The claims of the plaintiff for damages and outstanding salaries etc. Etc. Shall be tried as a regular suit and the question of maintainability and jurisdiction shall be decided after recording of evidence.
11. With the above observations all the three (3) applications in the above suit stand disposed of.