ORDER CH. IJAZ AHMAD, J. - Brief facts out of which the present writ petition arises are that Muhammad Sharif son of Chanan Din imported Toyota Wagon through United Bank Ltd. In terms of Prime Minister's Public Transport Scheme commonly known as Yellow Cab Scheme by taking loan from the United Bank Ltd. R.H. Q. Faisalabad. The vehicle subject-matter of this writ petition i.e. LOK- 9483 Engine No. 2L-3290327, Model No. 93 is jointly owned by Muhammad Sharif and United Bank Ltd. Muhammad Sharif allegedly sold the vehicle in question to one Muhammad Anwar.
Muhammad Sharif also handed over registration book and open transfer letter to Muhammad Anwar signed by Muhammad Sharif. Muhammad Anwar sold the vehicle in question to Amanat Khan who sold the same to Abdur Rashid respondent No. 3. Petitioner purchased from respondent No. 3 vide an agreement dated 8.12.1997 for consideration of Rs. 4,00,000/-. Petitioner has paid the aforesaid consideration to respondent No. 3 who handed over the possession of the vehicle in question to the petitioner along with the original registration book and open transfer letter signed by the original owner Muhammad Sharif. The respondent seized the> vehicle in question on 26.5.1999 as the instalments dues were not paid bv the customer as the vehicle was legally hypothecated with the Bank. Hence the present writ petition.
2. Learned counsel for the petitioner contended that petitioner is bona i.e purchaser of the vehicle in question and the action of the respondent is without lawful authority as the petitioner purchased the vehicle in question from respondent No. 3 after verifying the original registration hook and open transfer letter duly signed hy the original owner. Petitioner has become owner and his case is fully covered by the proviso of sub-section (1) and Section 53 of the Sales and Goods Act which envisaged that the seller lost his right to claim his lien against the second buyer who took the documents for value and in good faith. He further alleged that the sale in favour of the petitioner is complete sale. He relied upon AIR 1914 Allah Abad 81. The case of the petitioner is also covered u/S. 47 of the Sales and Goods Act. He further stated as the vehicle hypothecated with the Bank.
Therefore, Bank has only equitable charge and the Bank has no better interest as compared to the petitioner as the principle laid down by the judgment of the Calcutta High Court (AIR 1966 Calcutta 405). The action of the respondent is also in violation of Sections 30, 31 and 22 of the Sales and Goods Act as the petitioner has purchased the vehicle in question in good faith.
3. Learned counsel for the respondent stated that original customer Muhammad Sharif partly owner the vehicle in terms of Prime Minister's Public Transport Scheme had no authority under the law to sell the vehicle without obtaining NOC from the respondents. He further stated that Bank has invested 90%. Therefore, subsequent sales transactions by the original loanee to Muhammad Anwar and subsequent sale transactions are not recognized by the Bank as the same were made without prior permission of the Bank. He further stated that petitioner has no locus standi to tile this writ petition. He further stated that vehicle was seized by the respondent as Rs. 6,96,966/- is outstanding towards the original loanee Muhammad Sharif. He further stated that on the registration book stamp affixed which reveals that the vehicle is non transferable and the petitioner could not have purchased the same without obtaining the NOC from the respondent. He summed up his arguments that petitioner has not purchased the vehicle in good faith from Abdul Rashid.
That is, why he did not get the vehicle registered in his on name. The provisions of the Sales and Goqds Act are not attracted in presence of the fraud committed by the petitioner with the respondent. He further stated that petitioner has not attached any agreement to sell except the receipt of a simple peace of paper executed by respondent No. 3 on 8.12.1997 along with the transfer letter signed by Muhammad Sharif. The transfer letter does not reveal the National Identity Card of Muhammad Sharif except the vehicle number. Petitioner wants enforcement of contract through the writ petition which is not permissible.
4. Learned counsel for the petitioner in rebuttal stated that petitioner purchased the vehicle in question only in good faith. Any negligence on the part of the petitioner does not term as bad faith or did not purchase the same in good faith. He relied upon PLD 1959 Lahore 228. He further stated that respondent/Bank is contributory negligent as the respondent/Bank handed over the original registration book to Muhammad Sharif. It is the duty and obligation of the respondent/Bank to give photocopy of the registration book to Muhammad Sharif. Therefore, action of the respondent is his by well known principle of estoppel by negligence.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is admitted fact that Muhammad Sharif secured vehicle in question under Prime Minister's Scheme commonly known as Yellow Cab Scheme 10% and 15% equity was advanced by Muhammad Sharif while the rest of 85% or 90% was advanced by the respondent/Bank. The respondent has taken specific stand that the registration book contains stamp of non-transferable whereas the petitioner stated that the respondents failed to tile the photocopy of the registration book to show that it contains a stamp of non-transferable. It is also admitted fact that the transfer letter does not contain the National Identity Card number of Muhammad Sharif coupled with the fact that the petitioner purchased the vehicle for consideration of Rs. 4,00,000/- from respondent No. 3 on 8.12.1999 who only executed receipt on simple paper and handed over the vehicle in question to the petitioner. It is settled law that a right exclusively founded on a private contract however clear. It may be, is not enforceable by making a resort to the Constitutional jurisdiction of this Court. I am fortified by the judgment of the Hon'ble Supreme Court in State of Pakistan etc. Vs. Miraj (PLD 1959 SC (Pakistan) 147 including the following judgments:- PLD 1958 SC (Pakistan) 267 (Chandpur Mills Ltd. Vs. District Magistrate).
PLD 1962 SC (Mamon Motor Company Vs. Original Transport Authority.
PLD 1956 SC (Indian) 53 (K.N. Gurnuswamy Vs. State of Mysore).
NLR 1995 Civil Law judgment 574.
It is pertinent to mention here that the last judgment (NLR 1995 CLJ 574) my learned brother Tanvir Ahmad Khan, J. Has considered all the case-law on the subject and laid down the principle that writ petition is not maintainable for the enforcement of private contracts. The nature of controversy between the parties to the petition particularly that registration book contained the stamp of non- transferable according to the respondent whereas according to the petitioner it does not contain a stamp of non- transferable fact that coupled with the vehicle in question was sold to different persons who are not party before this Court. This brings the case of both the parties in the area of factual controversy which cannot be resolved in Constitutional jurisdiction of the High Court. I am fortified by the judgment of the Hon'ble Supreme Court in Muhammad Yunass case (1993 SCM R 618). It is consistent view of the Supreme Court that in cases where factual controversies are involved, Constitutional petition is not the proper remedy. Petitioner does not approach this Court with clean hands as is evident from transfer letter which does not contain National Identity Card Number of Muhammad Sharif. Therefore, petitioner did not purchase vehicle in good faith. Good faith means the test being one of honesty with due care and caution. The term "good faith", has been used in different Statutes and therefore, its meaning and application is to be determined with reference to the petitioner Act "..... " The term "good faith" is an abstract terms as such it is not capable of any rigid definition and is to be examined with reference to the context in which it is used, but some of its essential ingredients are honesty of purpose and 'due diligence'. M. Ramzan Vs. Govt, of Pakistan (PLD 1977 Baghdad-ul-Jadid 15). Petitioner purchased the vehicle in question from respondent No. 3 without due care and caution and creates doubt in the transaction as the transfer letter does not contain even the National Identity Card of the original partly owner with the respondent. Therefore, coupled that the violation of Sections 32, 109 and 115 read with Rule 28 and Rule 47 of Motor Vehicle Ordinance, 1965 and Rules framed thereunder. Therefore, judgment cited by the learned counsel for the petitioner is distinguished on facts and law. It is settled proposition of law that he who seeks equity must come with clean hands. Petitioner does not approach this Court with clean hands on account of the aforesaid circumstances. Therefore, writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in Ronaq Ali's ease PLD 1973 SC 236.
In view of what has been discussed above, the writ petition is disposed of with the observation that the petitioner may, if so advised, make resort to institute the suit for available relief before the Civil court of plenary jurisdiction. In case petitioner filed suit then the Civil Court shall decide the same without influence of the aforesaid observations.