ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.40 of 2015
Technova Enterprises (Pvt.) Limited
Versus
Sohail Tayyab Ali & another
A N D
Suit No.372 of 2015
Sohail Tayyab Ali
Versus
Technova Enterprises (Pvt.) Limited & another
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Date |
Order with signature of Judge |
In suit 40 of 2015
1. For hearing of CMA No.11031 of 2015
2. For hearing of CMA No.349 of 2015
3. For hearing of CMA No.1698 of 2015
4. For hearing of CMA No.1699 of 2015
5. For hearing of CMA No.2695 of 2015
6. For hearing of CMA No.4262 of 2015
7. For hearing of CMA No.6945 of 2015
8. For hearing of CMA No.12480 of 2015
In suit 372 of 2015
1. CMA No.2344/2015
Date of hearing: 12.04.2016
Mr. Mayhar Kazi for plaintiff.
Mr. Kh. Naveed Ahmed for defendant No.1.
Mr. Farmanullah Khan for defendant No.2.
-.-.-
Mohammad Shafi Siddiqui, J.- Plaintiff has filed instant suit for declaration that he holds a gas connection of defendant No.2 bearing consumer account No.8487341000 and that it cannot be transferred to defendant No.1 by defendant No.2 or to any other person without consent of plaintiff. Along with the suit plaintiff has filed applications bearing CMA No.349 and 6945 of 2015 which are being disposed of through this order along with other listed applications except CMA No.11031 of 2015.
Brief facts of the case are that the plaintiff is a private limited company engaged in the business of melting and smelting of non-ferrous metals for the purposes of recycling and owns and operates a plant and furnaces situated at Plot No.C-368-A and C-387 at HITE, Hub. In pursuit of such business activities it is stated that the plaintiff required stable and uninterrupted supply of natural gas in order to keep the furnaces operative as any interruption could cause heavy losses. It is urged that the plaintiff initially acquired the premises in question on tenancy basis vide agreement dated 30.12.2013 for a period of one year which was extendable to three years. It is claimed that vide tenancy agreement defendant No.1 to ensure that the plaintiff’s supply of utilities including natural gas was stable and uninterrupted. Subsequently plaintiff also acquired adjacent premises i.e. C-367. In terms of the tenancy agreement the owner was oblige to provide full and uninterrupted access and permission of usage of necessary utilities.
Learned counsel for the plaintiff further urged that the plaintiff and defendant No.1 in relation to the sale transactions of the premises commenced their discussion in April, 2014 and on 21.05.2014 defendant No.1 furnished an undertaking to defendant No.2 and in recognition of an agreement of sale instructed defendant No.2 to transfer subject gas connection to plaintiff and since then the bills are being issued by defendant No.2 in favour of the plaintiff, which are being paid regularly. The plaintiff in that respect has also independently entered into and signed a contract with defendant No.2 dated 01.07.2014. The plaintiff in pursuance of the terms of such contact also provided security deposit in the sum of Rs.3,359,159/- with defendant No.2 and furnished a bank guarantee on 18.12.2014 in the sum of Rs.1,225,000/- in favour of defendant No.2 to secure plaintiff’s payment obligation under the contract.
The sale agreement regarding a portion of the premises in question was entered into between the plaintiff and defendant No.1 on 01.07.2014 and vide receipt dated 01.12.2014 defendant No.1 acknowledged a sum of Rs.18 lacs through cheque being final payment of transfer of the premises, subject matter of the agreement, which cheque was agreed to be presented at the time of transfer by LIEDA. Consequently the LIEDA issued a transfer letter dated 04.12.2014 confirming the premises stood transferred in favor of the plaintiff. That until this transaction the parties continued amicably in a smooth and transparent manner however on 09.01.2015 plaintiff learned that defendant No.1 had addressed a letter dated 05.12.2014 to defendant No.2 requiring it to transfer the gas connection back to defendant No.1. It is contended that defendant No.1 misrepresented that it was owner of the premises which in fact by virtue of the letter dated 04.12.2014 stood transferred in the name of the plaintiff. The plaintiff then immediately addressed a letter dated 09.01.2015 to defendant No.2 informing the position that they have now acquired the premises by virtue of transfer letter and there is an independent contract of such gas supply between the plaintiff and defendant No.2.
It is asserted that defendant No.1 then started using harassment tactics by making a false complaint that there was a gas leakage in the premises and as a result of which gas supply remained disconnected causing tremendous loss to the plaintiff. The connection however was subsequently restored. Consequently the plaintiff filed this suit for protection of its rights to the effect that it has acquired the premises along with all utilities including but not limited to the gas connection.
Learned counsel for the plaintiff in support of his contention has relied upon provisions of Section 8 of the Transfer of Property Act and certain reported judgments including Jawed Iqbal v. Passco & another reported in 2004 CLC 478 and Lakhra Power Generation Co. reported in 2014 CLD 337.
Learned counsel for defendant No.1 during course of his arguments admitted that the subject premises was initially acquired by the plaintiff as tenant which was subsequently sold out. He also admitted that on 21.05.2014 plaintiff furnished an undertaking/NOC to defendant No.2 for transfer of billing in the name of plaintiff and that was done at his request however it is asserted that it was never agreed that the gas connection would be transferred in the name of plaintiff in pursuance of the sale agreement. Learned counsel submitted that no exclusive right of gas connection was given to the plaintiff and connection itself worth more than the sale consideration agreed for transfer, which is meant for subject premises only.
Learned counsel further argued that the contract between plaintiff and defendant No.2 for supply of gas is an ostensible contract between plaintiff and defendant No.2 and no reliance can be placed to seek any benefit from it, as is being done by the plaintiff. It is submitted that defendant No.1 himself running a factory under name and style of Fatima Wires and the tenancy agreement was entered into only in relation to a portion of land being 2500 meters and that the gas connection was installed on the portion of land in occupation of defendant No.1. Clause 5 of the tenancy agreement enabled the plaintiff to use the gas supply until the tenancy period is over. It was transferred in the name of plaintiff at its request as they intended to acquire certain benefits from the income-tax and as well as other authorities. It was originally in the name of Asif & Sons, the previous tenant. It was subsequently changed in favour of M/s Technova Enterprises (Pvt.) Limited, the plaintiff.
Learned counsel for defendant No.2 submitted that they are proforma defendant and would abide by the order of the Court as and when passed. He further admitted that defendant No.2 has executed a contract for supply of gas when it was in the ownership of defendant No.1 after undertaking/NOC was furnished by him.
I have heard the learned counsel for the parties and perused the material available on record.
Admittedly a piece of land has been transferred by LIEDA in favour of plaintiff vide transfer letter dated 04.12.2014, which was forwarded not only to the plaintiff but also to defendant No.1. The present proceedings were initiated only in relation to a gas connection, which is being used by the plaintiff. Admittedly, this connection was being used by the plaintiff while being tenant of the premises however it was transferred in its name at the time of entering to an agreement of sale with defendant No.1. The transfer took place on the basis of an undertaking/NOC dated 21.05.2014, available as Annexure ‘D’ to the plaint. Though the language of this letter/undertaking plays a pivotal role in understanding the intention of the parties and it is also very important factor that it is of prior to the agreement of sale however as pleaded the negotiation for sale started in April, 2014. The subject meter was transferred by defendant No.2 on the basis of this undertaking and an independent contract was executed between plaintiff and defendant No.2, which is available on page 83 Annexure ‘F’ to the plaint. This would be an independent relationship between the two and it is sought to be determined as an ostensible contract by defendant No.1 in the connected Suit No.372 of 2015 filed by him. In addition to providing security in relation to the consumption of the gas to the tune of 3 Million approximately, plaintiff has also provided a bank guarantee to defendant No.2 for security.
While deciding these applications and/or granting the relief claimed therein only a prima facie case of the plaintiff is to be seen as “deep analysis” of the contract in relation to gas consumption, agreement of sale dated 01.07.2014 or any other document could be fatal for any party to these proceedings for final consideration. I would thus only decide these applications on the basis of prima facie case and would not like to provide strict interpretation of the documents and intention of the parties as this could only be decided after evidence is recorded.
Section 8 of the Transfer of Property Act, which is relied upon by the plaintiff, provides that unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferee all the interests which the transferor is then capable of passing in the property and all things attached to earth. It includes the easement attached thereto, the rent thereof accruing after the transfer and all things attached to the earth. It also provides a mechanism where a machinery is attached to the earth or moveable parts thereof; it also provides a relief in relation to a property which is house and the easements annexed thereto; and where the property is a debt or other actionable claim, the securities therefor. It purely based on the intention of the parties which intention is to be gathered from the language of the agreement of sale and other actions taken by them and with evidence, which is yet to be recorded.
In the case of Sandoz Limited v. Federation of Pakistan reported in 1995 SCMR 1431 the Hon’ble Supreme Court while relying on the observation of Justice Oliver observed that the rule of interpretation is that in a situation when interpretation is essentially required, the more unreasonable result of the interpretation, the more unlikely it is that the parties can have intended it, and if they do not intend it the more necessary it is that they shall make intention abundantly clear. Although this interpretation cannot be ruled out that the intention of the parties was only in relation to a transaction of an immovable property and not the subject gas connection as in its absence it would not have been an unreasonable result in case such interpretation is observed but then it is quite premature at this stage to reach to such conclusion that the intention of the parties is such.
In the instant matter the gas connection has been transferred, at least, five to six months before the property was actually transferred in December, 2014 however it was done when negotiation for sale started. The NOC for transferring the gas connection in the name of the plaintiff was executed by the defendant No.1 on 21.05.2014 and agreement of sale was executed on 01.07. 2014 and on 04.12.2014 the property was transferred. On the basis of these three documents it is to be seen as to whether the parties intended to deal the subject gas connection through these documents and/or the controversy deemed to be resolved on the basis of these documents. Certainly these documents cannot be considered as a model of elegant drafting and hence the contention of learned counsel for defendant No.1 that they never intended to sell the subject gas connection through the agreement of sale dated 01.07.2014 is yet to be conceived, at least at this stage. Had it been so precious connection, some term/clause to that effect could have been incorporated in the agreement, more importantly when the defendant No.1 itself is conscious of such transfer as on the very next day of the transfer of the subject plot they wrote a letter to SSGC on 05.12.2014 regarding which alleged restoration of the gas connection in their name was requested. The defendant No.1 has also filed a suit seeking declaration that it is only an ostensible contract and hence it would be appropriate if the parties be directed to lead evidence in this regard as to their intention and obligations. In this regard learned counsel for the plaintiff has relied upon the case of Jawed Iqbal v. Passco & another reported in 2004 CLC 478 and Lakhra Power Generation Co. reported in 2014 CLD 337.
In view of the above the applications of plaintiff under order XXXIX rule 1 & 2 CPC in Suit No.40 of 2015 (CMA No.349 and 6945 of 2015) are allowed as prayed while the same application filed in Suit No.372 of 2015 (CMA No.2344 of 2015) by defendant No.1(plaintiff therein) is dismissed. As far as the application under order XII rule 6 CPC (CMA No.2695 of 2015) filed by the plaintiff is concerned, in the light of above discussion is dismissed as there appears to be intricate questions/issues which cannot be decided at this stage without the evidence is led by the parties. The applications bearing CMA No.1699, 4262 and 12480 of 2015 pertain to production of certain documents. It appears that the documents sought to be produced by the respective parties were perhaps for the assistance of this Court while deciding the main applications, as decided hereinabove, hence have served its purpose and are disposed of accordingly. So also the application for inspection bearing CMA No.1698 of 2015 is disposed of in the same terms. Contempt application bearing CMA No.11031 of 2015 shall however remain pending adjudication and shall be fixed by the office according to roster.
Dated: 29.06.2016 Judge