' The plaintiff, who is a former bank employee, has filed this application under Order XXXIX, Rules 1 and 2, C.P.C., read with section 151, C.P.C., (C.M.A. 9704/1993) in a suit for declaration, injunction and recovery of money. An interim injunction is being sought by the plaintiff against the defendant No,1 restraining them from parting with or handing over the title documents of an immovable property bearing No,G-18/1, Block B, North Nazimabad, Karachi, admeasuring 1200 square yards, (hereinafter referred to as the "suit property") pending disposal of the suit. The second application has been filed under Order VII, Rules 10 and 11, C.P.C. (C.M.A. 5716/94) by the defendants Nos.2 to 4 with the prayers that either the plaint be rejected for the reasons, inter alia, for want of jurisdiction; cause of action; res judicata or in alternate, plaint may be returned. This order will dispose of both these applications.
2. In brief, the case of the plaintiff is that he is highly qualified Banker; that he satisfactorily served the defendant bank for nearly 16 years; that on 4th September, 1990, without assigning any valid or cogent reason, he was dismissed from service of defendant No,2 namely Bank of Credit and Commerce International, S.A. (hereinafter referred to as "BCCI, SA"); that the plaintiff challenged his illegal, mala fide and arbitrary dismissal in the French Court; that pending proceedings in the French Court the defendant No,2 (BCCI, SA) suffered an illegal, mala fide and arbitrary winding-up without settlement of plaintiff's dues; that in the year 1986 the plaintiff was offered a loan for acquiring personal residential property amounting to US $ 85,000 equivalent to Pak. Rs,12,50,000; that plaintiff submitted his property documents of the suit property as security; that such transaction cannot be termed to be either equitable mortgage or other mortgage; that he had paid instalments as per repayment schedule till the year 1990; that the plaintiff suffered acute physical and fiduciary distress including family suffering due to winding up of BCCI, SA and due to his dismissal; that he had regularly contributed towards the provident fund during his service with BCCI, SA, which, at the time of filing this suit stood at US $ 53,004; that this amount is lying in trust with the defendants; that the plaintiff is entitled for Rs,69,28,230 to be paid by the defendants as thirteen (13) months outstanding salary, bonus, air fare for him and his family members, refund of time deposit and damages. In view of these alleged facts it is prayed that the equitable mortgage in respect of suit property be declared void, inoperative and opposed to public policy; for payment of provident fund; for mandatory injunction with the direction to the defendant No,1 to hand over all the title documents of the suit property; for prohibitory injunction to restrain the defendants Nos.2 to 4 from collecting title documents. In alternate, a preliminary and final decree for redemption of mortgage.
3. The defendants, besides denying the allegations of the plaint and the plaintiff's entitlement for the reliefs as prayed, have raised several legal pleas to the maintainability of this suit. It is worthwhile to mention here that on 15th January, 1992 the Bank of Credit and Commerce International (Overseas) (hereinafter referred to as the "BCCI. OS") i,e,, defendant No,3 was ordered to be wound-up by the Grant Court of Cayman Island and on 3rd January, 1992 the BCCI, SA, Luxembourg (defendant No,2) was ordered by the District Court of Luxembourg to be wound-up, which has also ordered BCC (Holdings) to be wound-up, now, defendant No,4 in this suit. In view of these admitted facts, an objection has been raised to the jurisdiction of this Court. The other objections pertain to the principle of res judicata as in paragraphs 5 and 6 of the plaint, it is admitted that the plaintiff's claim is pending before the French Court. In my tentative view, it would be the principle of res sub judice which may attract in the circumstances of this case and not res judicata. It is denied by the defendants that the plaintiff, in any manner, has suffered any loss, damages and was ever affected due to winding-up proceedings. It is claimed that the amount of provident fund was adjusted against the bank's outstanding/debts which are claimed as follows:-- -
(a) US $ 46,557.56 against A/C No,12001-227-25 at Grand Cayman.
(b) US $ 36,416,03 against A/C No,1200-238-25 at Grand Cayman.
(c) FF 53,055.80 (French Francs) as overdraft at France.
4. I have heard Mr. Abrar Hasan, for the plaintiff and M/s. Mehmud Mandviwala and S.A. Sarwana, for the defendants. It is strenuously contended by Mr. Abrar Hasan, that in view of the fact that the suit property is situated at Karachi, therefore, this Court has jurisdiction. Reference was made to section 16 of the Code of Civil Procedure while opposing the defendants' application under Order VII, Rule 11, C.P.C., he has referred to the case of Fatima Moeen v. ADJ, Sheikhupura and 22 others (1992 SCMR 1199), Hakim Bashir Ahmed v. The Government of Sindh and 2 others (1984 CLC 3061), Mst. Shamim Akhtar Qureshi v. Mst. Najma Lakhwera and others (PLD 1992 Lahore 205) and Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others (PLD 1994 Lahore 525). In the last cited case a learned Single Judge of Lahore High Court Malik Muhammad Qayyum, J., in his elucidated judgment discussed the principles of conflict of Laws vis-a-vis public and Private International Law, particularly in reference to the Arbitration Act, 1940 and Arbitration (Protocol and Convention) Act, 1937. It would be advantageous if paragraph 95 of the said judgment is reproduced, for the time being, it would rest the question of jurisdiction:- "95. In M.A. Chaudhry v. Mitsui O.S.K. Lines Ltd. (PLD 1970 SC 373), it has been observed by the Supreme Court that before giving up its jurisdiction even the Pakistani Courts will require where a remedy is available to the affected party in the Foreign Court. It was laid down that (page 390) "even upon the principle adopted by the East Pakistan High Court in each case, there should of necessity have been an enquiry to find out whether under the proper law of contract the foreign Court to which exclusive jurisdiction was sought to be given, had, in fact jurisdiction to try the cause of matter according to the laws of that country If it so happens that the Foreign Court has no jurisdiction in the matter, or is unable to grant relief sought for, then the plaintiff would be left with no redress at all". In this view of the matter also, the plea of ouster of jurisdiction of the Courts in Pakistan cannot be upheld."
5. In this suit the plaintiff as claimed in the plaint was employed as an officer in the year 1974. It is stated in the plaint that plaintiff had joined services with the defendant No,1, namely, Habib Bank Limited, but no letter of appointment or any other document is filed in support of such claim. On the contrary, Annexure 'A' to the plaint, which is a letter, dated 15th July, 1981, issued by BCCI, SA, shows that the plaintiff's salary was increased. According to Annexure ' A' filed with the joint written statement of defendants Nos.2 to 4, plaintiff was dismissed from service with immediate effect from 4th September, 1990 on the ground that he failed to report to the Branch Office in Rome, Italy after his transfer, which fact is impliedly admitted in the plaint. This suit was filed after a lapse of more than three years on 9th September, 1993 with the prayer for a money decree in sum of Rs,69,28,230 equivalent to US $ 2,30,941.28. The break-up of such claim is filed as Schedules 1 and 2 to the plaint, which indicate that the above claim is based on the following outstandings, as claimed by the plaintiffs:--- {{TABLE}}
(i) 13 months' salary @ US $ 22,761 $ 24,661
(ii) Bonus on tenure of 5 years $ 9,696
(iii) Arrears of 5 years pertaining to return air, passage for self and family. Time deposit with BCCI (Paris) $ 29,090 $ 13,500 Damages $ 100,000 Total $ 1,76,947 {{TABLE}} (Equivalent to Pak Rs,53,08,410)
6. The plaint lacks in material particulars. The plaintiff did not file any document to show his terms and conditions of appointment, conditions of his transfer, entitlement to air passage and bonuses etc., etc., neither any proof in respect of rate nor details of provident fund are available on record.
Besides recovery, the plaintiff is also seeking declaration that the equitable mortgage in respect of plaintiff's property bearing No,G-18/1, measuring 1200 square yards, Block B, North Nazimabad, Karachi, be declared void, inoperative and being opposed to public policy. According to plaintiff's own averments he obtained loan for acquiring personal residential property in Karachi in the year 1986. Annexures 'L' &,'M' to the plaint further indicate that a sum of US $ 85,000 was disbursed by BCCI OS, Karachi, in the months of February and March, 1986. He executed a Memorandum of Deposit of Title Deed in respect of the said property as well as executed General Power of Attorney in the month of March, 1986, which are available on record as Annexures 'E-2' and 'E-3' with the joint written statement of defendants Nos.2 to 4. After a lapse of more than seven years, he has filed this suit for declaration, which claim, in my tentative view, appears to be barred by Article 120 of the Limitation Act. In order to ascertain the legality of the said equitable mortgage, it is pertinent to observe that the plaintiff in paragraph 11 of the plaint has admitted that he was continuously repaying the loan instalment(s) as agreed earlier, up to the month of September, 1990. This admission of plaintiff further indicates that after his dismissal from service he has not paid any instalment(s) towards the loan amount, which is clear violation of Clause 2 of the letter, dated 26th February, 1986 (Annexure 'M' to the plaint), which provides that if the officer is no more in service of the Bank the entire outstanding house loan will become repayable with interest, the rate of which will be increased to normal commercial level.
7. In regard to the outstanding amount of salaries claimed, the plaint is silent on the period of this outstanding salary. Probably, this may be, the period prior to dismissal of plaintiff, which must be earlier to August, 1990. Again this suit having been filed in the month of September, 1993, it tentatively, appears that this claim is also barred by time. As far as claim of time deposit with BCCI Paris of US $ 13,500 is concerned, there is no material available on record to prima facie show that any such deposit was made by or on behalf of the plaintiff, there is only verbal assertion in the plaint. The plaintiff has also claimed US $ 100,000 as damages for his suffering and losses.
According to the averments of the plaint all the alleged acts and deeds of the defendants, for which the plaintiff has suffered mental torture and anguish, were either prior to the year 1990 or during the year 1991. Again this suit was filed after a lapse of more than two years which tentatively appears to be barred according to Article 36 of the Limitation Act.
8. The above discussion left us with the only claim of plaintiff regarding redemption of equitable mortgage. This claim is covered by the provision of section 60 of the Transfer of Property Act and appears to be within time. In order to obtain interim injunction, the plaintiff is required to show presence of all the three ingredients in his case. As far as the legal objections of the defendants are concerned, two of them, to some extent, are tenable but a plaint cannot be rejected in part. It is to be rejected as a whole for the reasons mentioned in Rule 11 to Order VII, C.P.C. All the allegations and counter-allegations of the parties lead me to the view that it would be in the interest of all the parties if the status quo in respect of the suit property is maintained till disposal of this suit. At the same time, I am also of the view that the other creditors of BCCI OS and BCCI SA may not be kept waiting for indefinite period, it is, therefore, necessary that some conditions should be imposed on the plaintiff in the interest of justice while granting interim injunction.
9. For the facts and reasons discussed hereinabove, the application for rejection/return of the plaint filed by the defendants is dismissed while application for interim injunction, filed by the plaintiff, is granted subject to the following conditions:---
(a) The defendants are restrained from handing over, delivering, transferring or removing from Pakistan title documents of the suit property till disposal of the above suit.
(b) That the above order of interim injunction is subject to further condition that the plaintiff shall deposit the outstanding amount of house loan with the Nazir of this Court within two months.
(c) That the above amount when deposited by the plaintiff shall be invested by the Nazir in some profitable scheme.
(d) That in case the plaintiff fails to deposit the above outstanding amount of house loan, as directed above this order of interim injunction shall automatically stand vacated/recalled.
10. With the above observations both the applications bearing C.M.A. 9704/93 and 5716/94 stand disposed of.