ANWAR ZAHEER JAMALI, J. - The above listed four applications, based on similar set of facts, involving common questions of law, are being disposed of by this common order.
2. Briefly stated the facts relevant for disposal of these applications are that Suit bearing No. 621/1999, under Section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 filed by M/s. Habib Bank Ltd. Was decreed on 9.2.2000.
3. On 15.5.2000 Bank/Decree-holder filed present Execution Application, inter alia, praying therein for attachment and sale of plot No. SR-3/14 known as Papaur Bai Building situated in Serai Quarters.
Karachi.
4. On 23.8.2001, this Court passed an order whereby the Official Assignee was directed to attach and take-over possession of aforesaid property under Section 18(3) of the Banking Companies (Recovery of Loans) Ordinance, 1997, with further directions to sell the said property after its attachment and taking possession thereof in accordance with law. After passing of this order, Intervenors in all the four listed applications have approached this Court with the prayer that the Decree-holder/Commissioner/Official Assignee may be restrained from interfering in their possession or dispossessing them from their respective tenements in the building over the attached plot.
(a) Case of Intervenor, Javaid Gulzar, in C.M.A. No. 2770 of 2001, is that he is tenant in respect of shop No. G-9/A, ground floor since May, 1997 and has been paying rent regularly. He was threatened by the representative of Official Assignee and other persons accompanying him for his dispossession on 25.9.2001.
(b) Case of Intervenors, Muhammad Shafi and Arshad Inam in C.M.A. No. 2772/2001, is that Muhammad Shafi is tenant in respect of shop No. G-9, ground floor since 1986, while Arshad Inam is tenant in respect of shop No, 11, ground floor since May, 1997. The representative of Official Assignee, Karachi, and other persons accompanying him threatened their forcible dispossession on 25.9.2001.
(c) Case of Intervenor, Saleem Sehgal, in C.M.A. No. 2852/2001, is that he is tenant in respect of shop No. G-12, ground floor, since October, 1994. On 25.9.2001 he was also threatened of his forcible dispossession by the representative from the office of Official Assignee and other persons accompanying him.
(d) Case of four Intervenors in C.M.A. No. 2854 of 2001 is that Intervenor, Mrs. Sadia Javaid is occupying flat No. 1/3 first floor, 2/10 and 2/12 second floor as tenant. Mrs. Farha Haroon is occupying flat No. 1/10, 1/9 and 1/8 as tenant. Intervenor, Mrs. Yasin Mushtaq, is occupying fiats Nos.
1/11 and 11-A, first floor, as tenant and Intervenor, Mrs. Shazia Habib, is occupying flat No. 1/11-A, first floor as tenant and they were threatened of their dispossession by the representative of Official Assignee and other persons accompanying him on 28.9.2001. All the four intervenors have claimed tenancy rights in their favour since May, 1997.
5. It will be seen that common features of the case of all the Intervenors are that they have claimed tenancy rights under different written tenancy agreements executed between them and some of the judgment-debtors prior to the date, when currently under attachment was mortgaged by the judgment-debtors with the decree-holder Bank. The Intervenors have placed on record various documents to substantiate their claim of tenancy in respect of their respective tenements.
However, not a single of these tenancy agreements is registered or even attested in accordance with the requirement of Section 5 of the Sindh Rented Premises Ordinance, 1979. Further, the tenancy period agreed under the agreements has expired much earlier, in most of the cases; even before the date of mortgage.
6. Separate counter-affidavits in reply to each application have been filed by the decree-holder, wherein the maintainability of these applications has been challenged on various legal grounds so also the facts stated and claims raised by the Intervenors in respect of attached^ property.
However, execution of tenancy agreements in favour of intervenors has not been denied.
7. Mr. Abdul Aziz Malik, learned counsel for Intervenors in the first two CMAs, vehemently contended that as the Intervenors are in possession of their tenements in the attached property by virtue of tenancy agreements executed much prior to the equitable mortgage of attached property with the decree-holder bank, therefore, their rights are protected under the provisions of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance of 1979), which categorically provides that no tenant shall be ejected from the rented premises except under the provision of said Ordinance. Learned counsel referred to Section 2-J of the Ordinance of 1979 and contended that even if the tenancy period agreed under the agreement has expired the tenancy will continue in favour of the tenant on same terms. To add force to his submissions in this regard, learned counsel referred the cases reported in PLD 1988 S.C/190, 1984 CLC 1016 and 1987 MLD 877. Dilating upon the concept of delivery of possession of attached property in occupation of tenant, learned counsel referred to the cases reported in AIR 1926 Madras 42, AIR 1939 Madras 456 and Al-R 1928 Patna 199 and contended that attachment of property and its sale for satisfaction of decree shall not affect the rights of the persons in possession thereof as at the time of attachment so also at the time of sale their dispossession will only be symbolic and not physical. Learned counsel in this regard also referred to provisions of Order 21, Rule 36, CPC and Rule 338 of Sindh Chief Court Rules (O.S.) and further to cases reported in PLD 1967 Dakka 258, PLD 1966 S.C. 612 and AIR 1918 Madras 207.
8. Mr. Tariq Mahmood, Advocate, for Intervenors in the other two C.M.As, adopted the arguments of Mr. Abdul Aziz Malik and submitted that Intervenors, being tenants, cannot be dispossessed through writ of attachment issued by this Court, but their dispossession could only take place in due process of law viz. Under the provisions of Ordinance of 1979.
9. Mr. Maqsood. Anwar Auqaf, learned counsel for the decree-holder and Mr. Jafar Sial, learned counsel for CIRC, referred to Article 143 of the Constitution and to Sections 4 and 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as Ordinance of 2001) and contended that by virtue of Section 4 of this Ordinance the alleged protection available to the Intervenor under these provisions of Sindh Rented Premises Ordinance, 1979 has . Vanished as the provisions of Ordinance of 2001 hold overriding affect on all other laws inconsistent to this Ordinance. Referring to Section 15(6) of the Ordinance of 2001, learned counsel contended that wide powers have been conferred upon the Banking Court to dispossess the persons in possession of mortgaged property on the application of the financial institution or of the purchaser of the property. As regards to various written tenancy agreement filed by the Intervenors learned counsel contended that the tenancy rights in favour of Intervenors were for limited period which stood expired long ago and in such circumstances even the so-called protection claimed by the Intervenors under the Ordinance of 1979 has disappeared in view of the clear language of proviso to subsection (6) of Section 15 of the Ordinance of 2001. To fortify his contentions, learned counsel placed reliance on the following cases:-
(1) 1999 SCMR 1477
(3) 1987 MLD 2894
(4) 1987 CLC 1932 In the. End learned counsel referred to the order dated 23.8.2001, whereby a similar application moved by the tenant/occupant of premises bearing No. G/9/B on the ground floor of the attached property was dismissed by this Court as not maintainable.
10. It will be seen that after the order of attachment of mortgaged property and directions to the Official Assignee for taking-over possession of the attached property in accordance with law, the representative of Official Assignee visited mortgaged property and submitted his report in Court on 26.10.2001. Again, in compliance of another order dated 23.11.2001 Official Assignee visited the attached property and submitted his detailed report wherein he confirmed the possession of the Intervenors Javed Gulzar, Muhammad Shafi, Arshad Inam and Saleem Sehgal in respect of different portions of the attached property so also of some other persons as named in his report.
However, he disputed the claim of all the "four Intervenors in C.M.A. No. 2854/20Q1. Concept of various tenancy agreements and receipts provided to the representative of the Official Assignee at the time of visit of mortgage attached property have also been filed with the report so also an order of the Honourable Supreme Court of Pakistan in SPLA No. 19-K of 1993 has been filed.
11. I have carefully considered the arguments advanced by the learned counsel and perused the material available on record, In order to appreciate properly the contentions raised by learned counsel it will be appropriate that Section 15 of Ordinance of 2001, which is relevant provision of law with reference to the dispute involved in the matter, is reproduced hereunder.
"15. Sale of mortgaged property. - (1) In this section, unless there is anything repugnant in the subject or context-
(a) "mortgage" means the transfer of an interest in specific immovable property for the purpose of securing the payment of the mortgage money or the performance of an obligation which may give rise to a pecuniary liability;
(b) "mortgage money" means any finance or other amounts relating to a finance, penalties, damages, charges or pecuniary liabilities, payment of which is secured for the time being by the document by which the mortgage is effected or evidenced, including any mortgage deed or memorandum of deposit of title deeds; and
(c) "mortgaged property" means immovable property mortgaged to a financial institution.
(2) In case of default in payment by a customer, the financial institution may send a notice on the mortgagor demanding payment of the mortgage money outstanding within fourteen days from service of the notice, and failing payment of the amount within due date, it shall send a second notice of demand for payment of the amount within due date, it shall send a second notice of demand for payment of the amount within fourteen days, In case the customer on the due date given in the second notice sent, financial institution shall serve a final notice on the mortgager demanding the payment of the mortgage money outstanding within thirty days from service of the final notice on the customer.
(3) When a financial institution serves a notice of demand, all the powers of the mortgagor in regard to recovery of rents and profits from the final mortgaged property shall stand transferred to the financial institution until such notice is withdrawn and it shall be the duty of the mortgagor to pay all rents and profits from the mortgaged property to the financial institution.
Provided that where the mortgaged property is in the possession of any tenant or occupier other than the mortgagor, it shall be the duty of such tenant or occupier, on receipt of notice in this behalf from the financial institution to pay the rent or lease money or other consideration agreed with the mortgagor to the financial institution.
(4) Where a mortgagor fails to pay the amount as demanded within the period prescribed under subsection (2), and after the due date given in the final notice has expired, the financial institution may, without the intervention of any Court, sell the mortgaged property or any part thereof by public auction and appropriate the proceeds thereof towards' total or partial satisfaction of the outstanding mortgage money: Provided that before exercise of its powers under this sub-section, the financial institution shall cause to be published a notice in one reputable English daily newspaper with wide circulation and one Urdu daily newspaper in the province in which the mortgaged is situated, specifying particulars of the mortgaged property, including name and address of the mortgagor, details of the mortgaged property, amount of outstanding mortgage money, and indicating the mention of the financial institution to sell the mortgaged property. The financial institution shall also send such notices to all persons who, to the knowledge of the financial institution, have an interest in the mortgaged property as mortgages.
(5) The financial institution shall be entitled in its discretion, to participate in the public auction and to purchase the mortgaged property at the highest bid obtained in the public auction.
(6) Where the mortgagor or his agent or servant or any person put in possession by the mortgagor or on account of the mortgagor does not voluntarily give possession of the mortgaged property sought to be sold or sought to be purchased or purchased by the financial institution, a Banking Court on application of the financial institution or purchaser shall put the financial institution or purchaser, as the case may be, in possession of the mortgaged property in any manner deemed fit by it: Provided that the Banking Court may not order eviction of a person who is in occupation of the mortgaged property or any part thereof under bona fide lease, except on expiry of the period of the lease or on payment of such compensation as may be agreed between the parties or as may be determined to be reasonable by the Banking Court.
Explanation. - (1) Where the lease is created after the date of the mortgage and it appears to the Banking Court that the lease was created so as to adversely affect the value of the mortgaged property or to prejudice the rights and remedies of the financial institution, it shall be presumed that the lease is not bona fide, unless proved otherwise.
(7) For purposes of execution and registration of the sale-deed in respect of the mortgaged property the financial institution shall be deemed to be the duly authorized attorney of the mortgagor and a sale- deed executed and presented for registration by duly authorized attorneys of the financial institution shall be accepted for such purposes by the Registrar and Sub-Registrar under the Registration Act, 1908 (XVI of 1908).
(8) Upon execution and registration of the sale-deed of the mortgaged property in favour of the purchaser all rights in such mortgaged property shall vest in the purchaser free from all encumbrances and the mortgagor shall be divested of any right, title and interest in the mortgaged property.
(9) Net sale proceeds of the mortgaged property, after deducting all expenses of sale or expenses incurred in any attempted sale, shall be distributed ratal amongst all mortgagees in accordance with their respective rights and priorities in the mortgaged property. Any surplus left, after paying in full all the dues of mortgages, shall be paid to the mortgagor.
(10) A financial institution which has sold mortgaged property in exercise of powers conferred herein shall file proper accounts of the sale proceeds in a Banking Court within thirty days of the sale.
(11) All disputes relating to the sale of the mortgaged property under this section including disputes amongst mortgagees in respect of distribution of the sale proceeds, shall be decided by the Banking Court.
(12) Neither the Banking Court nor the High Court shall grant an injunction restraining the sale or proposed sale of mortgaged property unless--
(a) it is satisfied that no mortgage in respect of the immovable property has been created; or
(b) all moneys secured by mortgage of the mortgaged property have been paid; or
(c) the mortgagor or objector deposits in the Banking Court in cash the outstanding mortgage money.
(13) The rights and remedies provided under this section are in addition to,' and not in lieu of any other rights or remedies a financial institution may have under this Ordinance.
(14) The provisions contained in this section shall have effect notwithstanding anything contained in this Ordinance."
(Underlining has been done for emphasis)
12. A plain reading of Section 15 goes to show that it is a comprehensive provision of law which defines "mortgage", "mortgage money" and "mortgage property" and, Inter alia, provides an independent mechanism for the financial institutions to sell the mortgaged property in a prescribed manner without the intervention of Court and to take over its possession, if delivered voluntarily, In the cases where delivery of possession is resisted, the financial institutions or the purchaser of mortgaged property have been conferred with right to seek assistance of the Banking Court by making an application in this regard. Further sub-section (6) to Section 15 of the Ordinance of 2001 spells out that when the financial institution/purchaser of mortgaged property seeks assistance of Banking Court for dispossession of person in occupation of mortgaged property or any part thereof and for putting them in its possession then in such proceedings, Banking Court could examine the question of bona fide lease or otherwise, expiry or non-expiry of lease period, as well as awarding of compensation, if any, to the occupant/tenant. It will be seen that there is no provision in the Ordinance of 2001 whereby in respect of mortgaged property financial institution or purchaser of such property have been empowered/authorized to dispossess its occupants per force or to take over possession from them at their own accord, except where they volunteer to do so. It is cardinal principle of interpretation of statute that no word used in the statute is redundant, and every word is to be given its true ordinary meaning, unless otherwise defined in the statute itself. Applying this principle, it will be seen that use of word "voluntarily" in sub-section (6) to Section 15 of the Ordinance of 2001 has its own significance and it amplifies the legal position canvassed above. Moreover, sub-section (14) to Section 15 gives an overriding effect to the provisions of this section over other provisions contained in the Ordinance, which further strengthens this position.
13. In the order dated 28.3.2001 this Court has also taken care of this aspect by directing the Official Assignees to take possession of mortgaged property in accordance with law, and not otherwise.
Thus, the apprehension of the applicants in C.M.A. No. 2770/2001, 2772 of 2001 and C.M.A. No. 2852 of 2001, who have been found in possession of mortgaged property as per the report of the Official Assignee, about threat of their illegal dispossession at the hands of Official Assignee or his representative or decree-holders seems to be ill-founded.
14. Viewing the controversy from another angle, it is pertinent to mention that there is no provision in the Ordinance of 2001 whereby the occupants/tenants of mortgaged property have been conferred with right or given locus standi to approach the Banking Court to seek declaration of their rights in the mortgaged property or the Banking Court is empowered to issue injunctive order at their instance to protect their possession.
For the foregoing reasons, these applications being not maintainable in law are liable to be dismissed. Order accordingly.
Before parting with this order it may be observed that I have refrained from dilating upon various contentions raised by the learned counsel for the applicants before me with reference to the provisions of Ordinance of 1979 and Order 21, Rule 36, C.P.C, so that no prejudice is caused to their interest, if and when such pleas are raised in some proceedings.