' In order to secure the finance facility availed by the petitioner (company) petitioners No's. 2 and 3 had executed guarantees and mortgage deeds in favour of the respondent (Bank). In the year 1994 the respondent (Bank) instituted a suit for recovery of the stated amount, which was dismissed as withdrawn on 28-9-2000 in view of the statement that the matter had been settled and the suit amount had been paid. On 29-9-2000 the Banking Court while disposing of application filed by the petitioners regarding the release of documents, directed the respondent-Bank to release documents of defendants Nos.1, 3 and 5 who are petitioners herein. That order was assailed by the respondent-Bank through Writ Petition No,24399 of 2000, which was dismissed by this Court as also Intra-Court Appeal No,321 of 2000 by a learned Division Bench of this Court. Statedly petition for leave before the Honourable Supreme Court of Pakistan has been filed by the respondent-Bank.
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a direction is sought to the respondent-Bank "to release securities and return original documents of the same given by the petitioners to the respondents in order to secure the Facility as the same has been satisfied."
2. The learned counsel for the petitioners contends that in view of the liability having been cleared on deposit of the suit amount and the suit having been dismissed the respondent-Bank has got no lawful authority to retain or refuse the return of the security documents, which security was furnished to satisfy the said liability. It is contended that some liability allegedly outstanding qua another commercial entity cannot be made a ground to refuse the return of the security documents furnished by the petitioners. Reference has been made by him to Mst. Sajida Sultana and 2 others v. Agricultural Development Bank of Pakistan through Qayyum Javed Khan, Manager Agricultural Development Bank of Pakistan Model Branch Lahore 2002 CLD 592. The learned counsel for the respondent-Bank on the other hand contends on the strength of judgment in National Bank of Pakistan through President and 4 others v. Khalid Mehmood 2002 CLD 658 that the matter falls within the exclusive jurisdiction of the Banking Court, which should be left to be decided by that Court and this Court should not interfere in the matter. It is contended that the practice and the regulations of the respondent-Bank permit the retention of such security documents in view of para.19.8(iii) of Credit Manual Vol. I. It is contended that respondents Nos.3 and 4 namely Aleem Hussain and Mrs. Adeela Aleem being directors in both the companies i.e. Messrs Food Aids (Private) Limited and Messrs Agro Dairies (Private) Limited, the petitioner herein, the security documents of petitioner No,2 and 3 can be retained.
3. The respective contentions of the learned counsel for the parties . Have been considered. The admitted and established position on the record is that suit for recovery, which was instituted by the respondent-Bank against the petitioners, was dismissed as withdrawn in view of the payment of the suit amount and clearance of the liability. Order passed on 28-9-2000 by the learned Banking Court reads as under:-- {{URDU TEXT}} ' There is left no doubt that the matter stood concluded between the parties insofar as the liability incurred by the petitioners was concerned The statement made by the learned counsel for the parties that to show that all matters were settled in ordinary use and connotation as per `Feroz-ul- Lughaat' page 1176, means {{URDU TEXT}} ' Since it was stated in clear terms before the Banking Court that:-- nothing remained outstanding between the parties thereafter. It was thus an obligation and duty of the respondent-Bank to have returned and released the security documents.
' The respondent-Bank, however, places reliance upon para 19.8(iii) of Credit Manual Vol.I, which was circulated on 6-11-2000 and reads as under:-- "If there is shortfall in security in some other case of a dependent relative, the security of a fully repaid case of the sponsor of the dependent relative can be retained by the Bank to secure its interest till the dependent relative's loan liabilities are also cleared."
' Besides, that the legal efficacy of such a circular is questionable, it cannot be applied to the instant case in which the matter had been settled before the circulation of the above amendment in the Credit Manual and the suit had already been dismissed. Moreover the other case to which this amendment could be attracted, should fall within the parameters of the circular and for that matter the security of the sponsor of the "dependent relative" could only be retained. It is not shown as to how Aleem Hussain and Mrs. Adeela Aleem wife of Aleem Hussain are dependent relative of Mrs. Zarina Aslam and Mr. Ali Aslam, petitioners herein. Mere relationship of brother and sister between Mrs. Zarina Aslam and Aleem Hussain does not make the later a dependent relative of Mrs. Zarina Aslam petitioner. Thus either way the stance of the respondent-Bank to retain the security documents is not justifiable. Even on general principle the respondent as mortgagee was obliged to deliver the documents to the petitioners in view of provisions of section 60 of the Transfer of Property Act, 1882 and Order 34 of Code of Civil Procedure, 1908. In Sajida Sultana and 2 others 2002 CLD 592 (supra) a learned Division Bench of this Court by taking the view that the general lien is available to the Bank only in respect of goods and that the title deeds could not be considered as goods, a direction was issued to the bank to handover the original title deeds to the appellant. There cannot be a cavil that the matter fell within the jurisdiction of the Banking Court, but in the instant case the Banking Court did pass an order for the return/release of the 'documents which the respondent failed to honour. As noted above, the writ petition and the IntraCourt Appeal filed by the respondent-Bank has been dismissed where against petition for leave is stated to have been filed by the respondent-Bank. No interim order statedly has been passed by the Honourable Supreme Court of Pakistan in the matter. Needless to state that mere filing or pendency of petition/appeal does not operate as a stay or restraint order. In the circumstances the petitioners cannot be left in lurch and stranded, indefinitely. The petitioners are thus justified in seeking declaration as prayed for. In this view of the matter the question as to whether the Banking Court can enforce its orders by invoking proceedings for contempt, need not be dilated upon in this case.
' As a result, this petition is allowed directing respondents Nos.1 and 2 to release/return the security documents of the petitioners within one month. No orders as to costs.