' MUHAMMAD NAWAZ ABBASI, J.---These two petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 have been preferred against the consolidated judgment passed by a learned Division Bench of High Court of Sindh at Karachi in High Court Appeals Nos,215 and 216 of 1990 arising out of the Civil Suit No,536 of 1982 filed by the petitioners and Civil Suit No,236 of 1983 filed by the respondents. The suit filed by the petitioners was dismissed whereas the suit filed by the respondents was decreed.
2. The relevant facts in small compass for disposal of these petitions are that the petitioners were extended financial facility equivalent to US $ 1,95,400 by the respondents in June, 1963 and for security of the loan, they created an equitable mortgage of the immovable properties by deposit of the title deeds. In consequence to the failure of petitioners to discharge their financial liability in terms of loan agreement, the respondents filed an application (J.M.A. No,45 of 1977) under section 162 of the Companies Ordinance, 1913 in the High Court of Sindh at Karachi for winding up of the petitioners' Company. During the pendency of the said application, a learned Single Judge of the High Court of Sindh at Karachi while disposing of Suit bearing No,312 of 1971 filed by Pakistan Industrial Credit and Investment Corporation Limited, Karachi, respondents in the present petitions against Mehboob Industries Limited on original side vide judgment, dated 12-8-1979 (Pakistan Industrial Credit and Investment Corporation Ltd. v. Mehboob Industries Ltd. 1980 CLC 249), held that the material date for calculating the amount of debt of foreign currency loans in local currency would be the date on which the first instalment for repayment of such loan was due. The PICIC assailed the above judgment through an appeal in the High Court of Sindh at Karachi and pending disposal of the High Court Appeal, the parties made a joint statement in the winding up petition on the basis of which learned Company Judge of the High Court of Sindh at Karachi disposed of the winding up petition vide order, dated 25-5-1980 as under: -- "The learned Advocates for the parties have filed the following joint statement:-- ' The parties above named respectively beg to submit as under:--
(1) That the claim of petitioners against the respondents as on 30-9-1977 is Rs,62,52,716.95, but in view of the principles laid down in the decision of this Honourable Court in Suit No,312 of 1971, the approximate amount of Rs,15,00,000 (Rupees fifteen lacs only) inclusive of interest, penal interest, premium and charges is only admitted by the respondents payable by them up to 24-5-1980, which the respondents are ready to deposit within three months. This will be without prejudice to the rights of the petitioners or the claim of the balance amount which may become due and recoverable by the petitioners from the respondents or any claim of the parties, arising thereafter, subject to decision in the High Court Appeal No,51 of 1979.
(2) That if the respondents fail to pay the agreed amount within stipulated period the above petition under section 162 of the Companies Act will stand granted and the company will be wound up and in case of payment of the above said amount by the respondents; within the fixed time, the petition shall :stand dismissed as withdrawn.
(3) That the respondents shall deposit the amount in Court and the petitioners shall not withdraw this amount till all the security documents are deposited by them in Court.
' I, therefore, dispose of the above petition in terms of this joint statement. However, in case the amount of Rs,15,00,000 mentioned in the joint statement is not deposited within three months as agreed, the case will be put up for naming the liquidator.
' In view of the above order, C.M.As. Nos,583 of 1977 and 584 of 1977 have become infructuous which are hereby dismissed."
3. In pursuance of the above order, an amount of rupees fifteen lacs was deposited by the petitioners within the specified time which was withdrawn by the respondents with the permission of the Court but withheld the deposit of title deeds till decision of High Court Appeal No,51 of 1979 which was subsequently dismissed by a Division Bench of the High Court vide judgment, dated 28- 2-1982. The petitioners, in the light of the verdict given by the High Court filed a suit against the respondents for cancellation of documents. Which were executed by them for furnishing security to the loan in the High Court of Sindh at Karachi and pending disposal of said suit, the Foreign Currency Loan (Rate of Exchange) Order, 1982 (Presidential Order No,3 of 1982) was promulgated on 28-2-1982. Articles 3 and 4(2) of the above Order provided as under:- "3. Rate of exchange applicable to foreign currency loans.---For the removal of doubts it is hereby declared that, notwithstanding anything contained in any other law for the time being in force, the judgment, of any Court or any agreement, contract or other instrument, the rate of exchange, for the purpose of conversion into Pakistan currency for repayment in respect of any outstanding foreign currency loan or any part thereof or interest in respect is thereof payable to a financial institution on the day of commencement of this order shall be, and shall be deemed at all material times to have been, the rate of exchange in force under section 23 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956), on the day on which the loan, part or interest is actually repaid or paid to the financial institution; and all parties by whom the loan, part or interest is repayable shall make the repayment or payment accordingly.
4. Bar of jurisdiction, etc. -(1)
(2) Any order, writ, judgment, decision or decree of any Court, made, given, issued or passed before or after the commencement of this Order, which is inconsistent with the provisions of this Order, shall be null and void and of no effect."
4. In the light of above provisions, the respondents moved an application to the learned Company Judge for modification of the order, dated 25-5-1980 and on dismissal of the said application they filed a suit bearing No,236 of 1983 in the High Court of Sindh at Karachi on the original side for recovery of the balance amount to be calculated on the basis of rate of exchange on the date of actual payment. The above two cross-suits were contested by the parties and in the light of the pleadings in the suits, the learned trial Judge in the High Court framed the following two issues for determination of the dispute:-- "(1) Whether on 28-2-1982 the date on which the President's Order No,3 of 1982 was promulgated, any foreign currency loan as referred to in Article 3 of the said Order was outstanding against the defendants? And
(2) Whether the order passed by the learned Single Judge, dated 25-5-1980 whereby J.M.A. No,45 of 1977 was finally disposed of has been rendered ineffective by Article 4(2) of the said order?"
5. The learned trial Judge having adjudicated the above controversial question in affirmative held that the Presidential Order No,3 of 1982 would prevail and the petitioners would be liable to repay the amount of loan in terms of Article 3 of the said Order and consequently, passed the decree in Suit No,236 of 1983 filed by the respondents and dismissed the Suit (No,536 of 1982) of the petitioneRs, The verdict given by learned Single Judge through consolidated judgment in the two suits was upheld by a learned Division Bench of the High Court of Sindh at Karachi, vide judgment, dated 10-5-2002 impugned in the present petitions. The operative part of the judgment is reproduced hereunder:- "15. In view of the foregoing, we are unable to agree with Mr. Kazi that the respondent's claim against the appellant was finally settled by the agreement, dated 25-5-1980 and the matter . Had become a past and closed transaction upon the promulgation of the President's Order. Moreover, we are also unable, to share his view to the effect that a final determination of liability through the judgment of a Court would be outside the scope of the President's Order. Indeed if the debt had been paid off or had been lawfully remitted prior to the promulgation of the President's Order, might have been possible to urge that there was no foreign currency loan outstanding. However, mere determination of liabilities even through a judgment validly pronounced by a competent Court would not take the matter outside the purview of the aforesaid Order because otherwise section 4(2) of the Order rendering 'any judgment or decree of a Court to be null and void' would become meaningless. Therefore, as long as the respondent's right to seek recovery (even if subject to certain conditions) remained alive it could not be assumed that the transaction had become past and closed. Moreover, Mr. Aijaz Ahmed has pointed out that even in Suit No,312 of 1971 the judgment of the Court had been held to be void and this Court held that no decree need be prepared or signed (PLD 1984 Karachi 82). Indeed it would be highly anomalous to hold that compromise judgment in different proceedings between different parties on the same question would remain enforceable. We therefore, find little merit in these appeals and would dismiss the same. There will, however, be no order as to costs."
6. In the light of the foregoing, the essential questions requiring determination would relate to the consequence of the settlement on the basis of which the winding up petition was disposed of and the first question would be whether in case of failure of High Court Appeal, the payment of rupees fifteen lacs would to be considered in lieu of full and final satisfaction of the claim of the respondents. The second question for consideration would be whether the judgment of High Court would remain operative and would not be nullified by Presidential Order No,3 of 1982 and the third question would be that what was the liability of the petitioners . In terms of the agreement incorporated in the joint statement made by them in the winding-up petition.
7. The learned counsel for the petitioners has contended that the learned Judges in the High Court were misdirected in holding that in consequence to the admission of petitioners of their outstanding liability and payment of rupees fifteen lacs before the Company Judge, the respondents while reserving their right of claim of the balance amount in excess to the above amount which would become due, agreed for the disposal of winding-up petition whereas the agreement was that subject to the decision of H.C.A. No,51 of 1979, the payment of rupees fifteen lacs would be deemed to be the final settlement of the claim of respondents. In nutshell, learned counsel argued that necessary implication and intendment of the parties was that in the event of dismissal of appeal, the payment of rupees fifteen lacs would be considered towards the discharge of total liability of the petitioners and in case of its success, their outstanding liability would be determined in the light of judgment.
8. The learned counsel without challenging the vires of the above Presidential Order contended that the dispute having already been settled in winding up petition, it was past and closed transaction and the loan being no more outstanding at the time of promulgation of Presidential Order No,3 of 1982, the instant case would remain out of the purview of the said Order.
9. It was provided in Article 3 of Presidential Order No,3 of 1982 that notwithstanding anything contained in any other law for the time being in force, the judgment of any Court or any agreement, contract or other instrument, the rate of exchange for repayment in respect of an outstanding foreign currency loan would be at the rate of exchange in force under section 23 of the State Bank of Pakistan Act 1956 on the date of actual repayment to the financial institutions. Sub- Article (2) of Article 4 of the said Order, provided that any writ issued, judgment or decision given before or after commencement of the Order, inconsistent to the provisions of the Order, would be null and void and would have no consequence. However, this Order was not made applicable to the cases in which liability in respect of foreign currency loans towards financial institutions stood already discharged and loan was no more outstanding.
10. It is not disputed that -under the agreement, the petitioners were required to deposit an amount of rupees fifteen lacs inclusive of interest, penal interest, premium and charges payable by them within the time specified therein and this deposit was without prejudice to the right of respondents for claim of the balance amount which would ultimately become due and recoverable. In para.2 of the joint statement, the parties agreed that in case of failure of the petitioners to deposit the amount of rupees fifteen lacs within the prescribed period, the winding up petition would be deemed to be allowed and if the payment would be made within the time fixed, the winding-up petition would stand dismissed as withdrawn. It appears that the parties with a view to make amicable settlement of the dispute and to avoid the consequence of litigation and winding up of the Company willingly made the above arrangement before the learned Company Judge. The plain reading of the terms of agreement in the entirety incorporated in the joint statement of the parties would show that respondents reserved the right of claim of balance amount and neither expressly nor impliedly, abandoned any portion of their claim or made an offer for acceptance of the proposal of final settlement, rather the agreement would evidently suggest that the respondents agreed for the settlement to the extent of disposal of winding up petition subject to the deposit of amount in question as partial payment towards the discharge of financial liability and the balance was to be calculated on the basis of the decision of the High Court Appeal and thus it was provided in the agreement in an unequivocal term that the final settlement would be made on a future date on the determination of the date of chargeability. The controversy between the parties was confined only to the extent of rate of foreign exchange chargeable either prevailing on the date when repayment was due or on the date of actual payment. The plea of the petitioners was that their total liability stood discharged on the confirmation of the verdict given in Suit No,312 of 1971 by the High Court in appeal and there was nothing outstanding against them whereas the case of the respondents on the other hand, was that on the commencement of Presidential Order No, 3 of 1982, the judgment was nullified and in consequence thereto, the petitioners would be liable to repay the loan in terms of Article 3 of the Presidential Order on the basis of rate of exchange enforced on the date of actual payment.
11. The joint statement referred to above is divided into two parts. The first part contains the admission of petitioners qua their financial liability and in the second part, the right of the respondents for the claim of the balance amount was recognized. The first part relating to the payment of rupees fifteen .Lass and the disposal of winding up petition was immediately acted upon and the implementation of the second part was kept pending till the disposal of the appeal by the High Court, therefore, the agreement would manifestly reveal that the claim of respondents, subject to decision of rate of foreign exchange, chargeable from the petitioners would be deemed to be outstanding and in absence of any apparent discrepancy indicating in the two parts of the agreement, no exception would be taken to the view expressed by the High Court. In the light of rule of adhering to the plain meanings of the words used in the statute being capable of depicting the intention of the Legislature, it can safely be held that the express provisions of Presidential Order No,3 of 1982 could not be construed subordinate to the consideration based on the agreement in question or any other instrument and thus the Presidential Order having overriding effect would remove all doubts in respect of rate of foreign exchange chargeable on foreign currency loans.
12. In the plain words and the language used in the judgment, it would be clearly spelt out from the considerations and circumstances in the background that the agreement between the parties was conditional and final settlement in respect of the claim of the respondents would be subject to the determination of rate of exchange payment on the loan and therefore, the foreign currency loan obtained by the petitioners was still outstanding which would squarely fall within the ambit of Article 3 of Presidential Order No, 3 of 1982. The judicial verdict of the Courts in the matter was undoubtedly overruled by the Presidential Order No,3 of 1982 and in consequence thereto notwithstanding the agreement between the parties and the judgment of the High Court on the subject, the rate of exchange on foreign currency loans enforced under section 23 of the State Bank of Pakistan, 1956, on the date of actual payment would be charged. It is provided in the Presidential. Order itself that it will only apply to outstanding foreign currency loans on the date of its commencement and having no retrospective effect would not be applicable to the loan already paid before its commencement but in the present case, the financial liability of the petitioners subject to certain conditions, was still determinable which was not finally settled, therefore, it was not a case of past and closed transaction and consequently, on the annulment of the judgment, the financial liability of the petitioners would necessarily be determined under Presidential Order No, 3 of 1982. The net result is that the judgment to the extent of being contrary and inconsistent with the provisions of Presidential Order, would be null and void and in consequence thereto, the petitioners would be liable to repay the loan under the above Order on the basis of rate of exchange on the foreign currency loan enforced on the date of actual payment.
13. In the light of foregoing discussion, we while upholding the impugned judgment, dismiss these petitions. Leave is refused.