' Through this common order, I intend to dispose of nine (9) inter locutory applications, six (6) filed by the plaintiffs and three (3) filed by the defendants, in three different suits, filed by three plaintiffs against common defendants, on more or less similar facts. The grounds of attack and reliefs prayed by the plaintiffs are similar in all the three suits so also the defence of all the defendants are similar in all the three suits. For the sake of brevity, T propose to deal with all these suits by this common order. Nonetheless facts of each suit are discussed separately and are as follows:- ' In respect of Bank of Credit and Commerce International (hereinafter referred to as the "BCCI"), for its working and liquidation, reference may be made to my order in Suit No,468 of 1992 (Asrar Hasan v. Habib Bank Limited and others) and, therefore, I need not repeat the same here.
Shahid Murtaza v. Habib Bank Limited and 3 others (Suit No,438 of 1992)
1. Plaintiff claims to be an ex-Officer in the International cadre of defendant No,2, Namely BCCI (Overseas) and has served for nearly eighteen (18) years in the said bank and in its subsidiaries,; that during his service, he obtained a house loan equivalent to Pak Rupees 12,50,000 for acquiring a residential house in Karachi. Accordingly, he purchased a house bearing No,56/II, 25th Street, Phase V, D.H.A. Karachi and deposited its title documents with the BCCI (Pakistan). It is further claimed by the plaintiff that from time to time he was repaying instalments in the loan account and lastly such instalment was paid in February, 1992; that the plaintiff has suffered extreme anguish and physical distress and, pecuniary loss due to BCCI's winding up which was a multinational conspiracy against a Muslim Bank; that the plaintiff under extreme duress was forced to sign release papers against payment of meagre amount. He has filed the present suit for realisation of his outstanding dues, declaration, injunction and redemption of the mortgaged property mentioned hereinabove.
He has not filed any document to show on what terms and conditions and by which of the bank he was employed. However, documents filed with the plaint show that he had approached BCCI Abu Dhabi, U.A.T. BCCI (S.A.), Luxembourg, BCCI Argentina and BCCI (Overseas) Grand Cayman for settlement of his dues. It also appears from Annexure 'H' (dated 7-5-1992) to the plaint, that the plaintiff has also approached the liquidators for settlement of his dues, but the defendants are not in a position to say with certainty as to what was the fate of his claim.
2. The case of Habib Bank Limited is that the suit is without cause of action; that this Court has no jurisdiction; that initially three branches of BCCI (Pakistan) were taken over by Habib Bank Limited as a result of a scheme for amalgamation formulated under section 47 of the Banking Companies Ordinance, 1962; that subsequently a subsidiary namely Habib Credit and Exchange Bank Limited, (defendant No,4) was incorporated which took over the control, management, assets and obligations of the said three branches of BCCI (Pakistan); that the said defendant is not liable for any claim as alleged by the plaintiff. The case of defendant No,2 namely BCCI (Overseas) is that it is not concerned with the affairs of BCCI (S.A) Abu Dhabi (defendant No,3); that it is not clear as to where the plaintiff was serving and with whom; that the provident fund is a trust account independent of the defendants and that no decree or order can be passed affecting the provident fund money which is still in the custody of the trustees; that the plaintiff has already filed his claim with the liquidators namely Touche Ross and Company ; that the claim of the plaintiff is vague and unsubstantiated. It was denied that the BCCI (S.A) and BCCI (0.S) are being liquidated due to some international conspiracy. However, it was admitted that the loan was granted by BCCI (OS), Grand Cayman and was channeled to Pakistan through the Bank's Foreign Controlling Division; that the title documents were deposited by the plaintiff with the Karachi Branch of BCCI (0.S) as Agents and trustees for BCC (0.S) Grand Cayman; that the plaintiff's loan account was parked outside Pakistan; that the liquidators of BCCi (S.A) or BCCI (0.S) are in no way responsible either for so-called mental anguish and physical distress and pecuniary loss of the plaintiff nor is it liable for any so-called outstanding dues of the plaintiff; that the liabilities of one Bank cannot be set off against the credit balance of another bank. However, it was asserted that the defendant No,1 is holding title documents of plaintiff's property in trust for BCCI (0.S). All other claims of the plaintiff were denied with the prayer for dismissal of suit.
3. The defendant No,4 namely Habib Credit and Exchange Bank Limited has denied any relationship with the plaintiff. However, it was admitted that the three branches of BCCI (Pakistan) were given under the management and control of the defendant No,4. In resepct of other allegagtions of the plaint and the claim of the plaintiff, the defence of defendant No,4 is more or less the same as of defendants Nos.1 and 2.
' Saeeduddin Siddique v. Habib Bank Limited and three others (Suit No,439 of 1992)
4. This suit is for recovery of Rs,1,08,75,000 for unpaid salaries, provident fund, gratuity as well as damages for suffering mental agonies, dislocation of plaintiff and his family and their rehabilitation. Declaration is also being sought in respect of an equitable mortgage that it is opposed to the public policy and be declared to be invalid. A mandatory injunction is also prayed against defendant No,1 with the direction to hand over all the title documents of the property to the plaintiff. A preliminary and final decree for redemption of the mortgaged property and a prohibitory injunction restraining the defendants from collecting plaintiff's title documents from defendant No,1 are also prayed. Again in this suit it is not clear by whom the plaintiff was engaged in service i.e, by BCCI (SA) or by BCCI (OS). However, it is claimed that the plaintiff had served BCCI for fourteen (14) years and obtained a house loan against which he purchased a House bearing No,111/2, Second Street, Phase V. D.H.A., Karachi; that his services were terminated on 1st October, 1991; that the defendants have taken over management and control of all the three branches of BCCI (Pakistan) and in order to deprive the plaintiff of his residential immovable property, the defendant No,1 is handing over all the title documents to defendant No,2, which is illegal and mala fide, hence this suit.
5. From the documents filed with the plaint, it appears that the services of the plaintiff were terminated vide letter, dated 1st October, 1991, issued by BCCI (SA), Abu Dhabi, UAE. Through this letter, plaintiff was assured that in due course of time he would be informed of his other entitlements or liabilities. It is further apparent from the document, dated 25th May, 1988 of BCCI
(SA) that amount of US $ 75,000, equivalent to Pak Rupees 12,50,000 was disbursed to the plaintiff as house building loan. One of the condition was that in case if the plaintiff leaves the service of the bank the entire outstanding loan will become payable with interest immediately. As a security, the plaintiff was required to create first charge through registered mortgaged on the immovable property to be purchased from the said loan. In this case the defence of the defendants is same as of the earlier suit. Syed Ejaz Hassan Khan v. Habib Bank Limited and 3 others (Suit No,443 of 1992).
6. In this case the plaintiff claims to have served BCCI for more than fifteen (15) years as an officer in the international cadre. He has also questioned winding up proceedings commenced in the U.K.
For liquidation of BCCI. He has also claimed damages for illegal, arbitrary and capricious winding up of BCCI. It is admitted by the plaintiff that an amount of US 64,000 was obtained by him as house building loan against which he purchased House bearing No,45/I, 23rd Street, Phase V. D.H.A., Karachi. He has also challenged the acts of defendants to hand over the title documents of the said house to the liquidators. Therefore, he has filed a suit for recovery of Rs,43,24,966, with the declaration that the equitable mortgage in respect of plaintiff's property be declared to be contrary to the public policy and, thus, void ab initio. Relief of mandatory injunction, preliminary and final decree for the redemption of mortgaged property as well as relief of prohibitory injunction are also prayed by the plaintiff. Perusal of documents, filed with the plaint, other than the claim of damages, before the Official Liquidators. Plaintiff has also filed copy of agreement of mortgage dated 12-4.1989 (Annexure 'R-6'), which is between him and the BCCI (OS) Grand Cayman, Cayman Islands. This agreement is in respect of purchases and mortgage of the aforesaid property. Much emphasis has been placed in the plaint on the acts of defendants in usurping the properties of BCCI (Pakistan). No specific details as to the plaintiff's outstanding in respect of salaries, provident fund, gratuity fund or other dues were mentioned in the plaint. It is not stated that how much amount of house loan was repaid by the plaintiff and how much is still pending. Still the plaintiff has prayed for the redemption of the mortgaged property.
7. Case of the defendants in this suit also is made as of the two earlier suits.
8. 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. In this respect he has filed C.M.A. 447 of 1993 under Order VII, rule 10/11, C.P.C. In Suit No,438 of 1992, C.M.A. 448 of 1993 under the same provision of C.P.C. In Suit No,439 of1992 and C.M.A. 449 of 1993, again under the same provision of C.P.C. In Suit No,443 of 1992. The grounds are common in all these applications i.e, that the defendants Nos.2 and 3, namely BCCI
(OS) and BCCI (SA) were not voluntarily residing or carrying on business within the territorial limits of this Court at the time of commencing of all these three suits and secondly that all the properties and effects of both these 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 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 three immovable properties, which are located within the territorial limits of this Court. Therefore, to the extent of the relief of redemption of mortgage, it cannot be deneid that a part of cause of action arises at Karachi where the mortgage was created and the properties are situated. Earlier this question was considered by me in the case of Tajuddin Khan v. Habib Bank Limited and three 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 grounds 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 finality. 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 three suits. 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 said 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 which making reference to section 16 of the Civil Procedure Code. 1908 and while referring to the case of Messrs Rupali Ployster Ltd. v.
Dr. Nael G. Bunni and others (PLD 1994 Lahore 525). In another case Irshad Begum v. Habib Credit & 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 all these three suits the plaintiffs have also prayed for preliminary as well as final decree in respect of redemption of mortgage for the mortgaged properties. All these three immovable properties involved in these three suits are 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 which are outside the jurisdiction of this Court as the cause of action accrued outside Pakistan and that the defendant, legally speaking were not in existence at the time when these suits were filed. This argument has some force but in my tentative view it requires evidence. Since a part of cause of action accrued at Karachi and since all the three immovable properties are situated within the territorial limits of this Court, I am of the view that this Court has jurisdiction to try and adjudicate all the three suits, at least, to the extent of relief for the redemption of mortgage.
9. It was also argued by Mr. S.A. Sarwana that the facts of the present case differ from the case of Tajuddin Khan (ibid). According to him all the three plaintiffs in the above suits were engaged outside Pakistan while the three branches of BCCI (Pakistan) were merged/amalgamated with Habib Bank Limited on 14th March, 1992. According to the learned counsel all the three plaintiffs have approached for their claims of salaries and other entitlements which care pending before the liquidators and 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, harassment or mental shock arose while the plaintiffs were 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 as clear cut 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 plaintiffs were serving abroad, then the fact that the loans made to the plaintiffs were disbursed through BCCI (Pakistan) at Karachi and the title documents were retained by BCCI (Pakistan) calls for further inquiry as it may well be that the activities of all the BCCI entities were so interwined that the doctine of piercing the corporate veil may be attracted. (for reference see (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 of the plaintiff require detailed consideration and that too after recording of evidence. All the above three applications are, therefore, dismissed with the above observations.
10. The second set of applications have been filed by the plaintiffs 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 these plaintiffs are claiming certain amounts against the BCCI and if such amounts are allowed to be remitted abroad they 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 plaintiffs 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 plaintiffs would be entirely untenable. In any event the plaintiffs have contended that they are claiming certain amounts from BCCI and would suffer irreparable loss if these amounts are 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 thrt branches of BCCI Pakistan were amalagamated/merged with Habib Ban Limited on 14th March, 1992 while Suits Nos.438 and 439 of 1992 were filed on 15th June, 1992 and Suit No,443 of 1993 was filed on 24th June, 1992, after the day when the BCCI (Pakistan) stood dissolved and merged into Habib Bank Limited.
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 or delay the execution of a decree, that 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 plaintiffs' applications. Even otherwise, entitlement of a Creditor is fully protected under the scheme framed by the Federal Government. In case the Plaintiffs have any genuine claim against the defendants and this Court comes to the conclusion that their claims are maintainable then they can always seek support from the said scheme framed under section 47 of the Ordinance, 1962, if the Habib Bank Limited or BCCI (Pakistan) are found liable by this Court. I am also of the view that all the three plaintiffs were not able to place enough material before this Court to tentatively support their claim of salaries and other dues. Merely on the ground of damages which are being claimed due to the suffering of the plaintiffs as a result of liquidation and harassment at the hands of BCCI Officers, the plaintiffs are, at this stage, not entitled for the relief as prayed and, therefore, the defendants cannot be restrained from remitting the said amount. Even otherwise, the plaintiffs have themselves filed their claims before the liquidators. These three C.M.A. Bearing No,3527 of 1994 in Suit No,439 of 1992, C.M.A. 3528 of 1994 in Suit No,439 of 1993 and C.M.A. 3592 of 1994 in Suit No,443 of 1992 are also liable to be dismissed on the reasoning as mentioned in the case of Tajuddin Khan (Supra), relevant portion of which is reproduced as follows:- "6, The plaint lack 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,...., 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' and 'M' to the plaint further indicate that a sum of Rs, 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 claims, 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, upto 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...."
11. Now coming to the other three applications filed by the plaintiff under Order XXXIX, rule 1 & 2, C.P.C. (C.M.A. 3653 of 1992 in Suit No,438 of 1992, C.M.A. 3755 of 1992 in Suit No,439 of 1992 and C.M.A.
3815 of 1992 in Suit No,443 of 1992), it is prayed on behalf of the plaintiffs 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 all the three plaintiffs have also prayed for 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 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 provisions 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 pays 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 palintiff/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 him from all rights to redeem the mortgage property.
12. In all the three suits none of the parties were able to satisfactorily show what exact amount they intend to claim against each other. I am also conscious of the fact that a large number of people are still awaiting settlement of their claims before the liquidators. An delay in conclusion of proceedings of these suits 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 plaintiffs as well as their liabilities vis-a-viz mortgaged properties 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 and for next six (6) months the defendant namely Habib Bank Limited, its concerned Officers and employees are restrained from delivering, handing over or parting with the title documents of the mortgaged properties, details of which have been mentioned in the earlier part of this order.
(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 31st day of October, 1997.
(d) Tentatively Commissioner's fee is fixed at Rs,10,000, in each suit. 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 plaintiffs they find it difficult and hard to conclude proceedings within the time as allowed by this Court in above paragraph. It would be open to the plaintiffs 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) All the parties are directed to appear before the learned Commissioner/Official Assignee on 1st July, 1997 at 12.30 p.m. When they are required to supply copies of their respective pleadings, claims, counter-claims and detailed statements of accounts.
(g) The claims of the plaintiffs for other than redemption of mortgage shall be tried as a regular suit and the question of maintainability and jurisdiction shall be decided after recording of evidence.
13. With the above observation all the three (3) applications in the above three suits stand disposed of.