ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
JCM No.31 of 2000
Industrial Development Bank of Pakistan
Versus
M/s Baig Industries (Pvt.) Ltd. & others
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Date |
Order with signature of Judge |
For hearing of CMA 68 of 2012
Date of hearing: 24.11.2016
Mr. Ainuddin Khan for petitioner.
Mr. Obaid-ur-Rehman Khan for applicant/objector.
-.-.-
Mohammad Shafi Siddiqui, J.- This is an application under order XXI rule 58 read with section 12(2) CPC filed by the applicant/objector in respect of three immovable properties bearing Shops No.CA-22, CA-23 and CA-24 situated at Hasan Centre, Block-16, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi. The applicant has prayed for deleting these properties from the list of attached properties as belonging to him being bonafide purchaser thereof.
Brief facts of the case are that Industrial Development Bank of Pakistan/petitioner filed this petition on 19.06.2000 for recovery of outstanding loan under section 39 of the IDBP Ordinance, 1961. The amount claimed was Rs.25,333,573/- as on 31.05.2000. The fact revealed that at the request of respondent No.1 a Local Currency Finance assistance in the sum of Rs.7.900 Million having resale price of 14.160 Million on markup basis under State Bank of Pakistan Scheme for purchase of locally manufactured machinery and a Local Currency Finance assistance in the sum of Rs.4.036 Million having resale price of Rs.6.097 Million was provided vide sanction letter dated 14.01.1995. In terms of Para 24 and 25 of the petition for the security of repayment the petitioner mortgaged immovable property bearing No.B-107, 108 admeasuring 5000 sq. meter situated at HITE Baluchistan with construction thereon including plant and machinery. Paragraph 25 of the petition further reveals that vide inquiry being made, the above mortgaged property was not found sufficient to meet claim of the petitioner and additional properties sought to be attached which include the subject properties i.e. three shops referred above. It is in relation to these three shops that the instant application/objections have been filed by the objector/applicant.
Learned counsel for applicant submitted that the applicant acquired these properties through registered instruments of sale and the same were purchased after proper verification, identification and publication of notices inviting objections. The applicant thus claims to be a bonafide purchaser and the instruments of sale in respect thereto are claimed to have been registered before the orders of the attachment.
Learned counsel for the petitioner submitted that Respondent No.2 in addition to the mortgaged of the subject immovable properties has also filed particulars of assets and liabilities of directors/partners/ proprietors, which include two out of three immoveable properties/ shops i.e. CA-22 and CA-23. The petitioner has filed their counter-affidavit and submitted that despite the attachment orders the properties were malafidely and with ulterior motives claimed to have been transferred in favour of the applicant which could not have been done in view of attachment order.
I have heard the learned counsel and perused the material available on record.
For the purposes of these three immovable properties the dates are very crucial. This petition was filed on 19.06.2000. This Court passed ad-interim orders for attachment of the subject properties mentioned in paragraphs 24 and 25 of the petition on 26.06.2000, which include but not limited to these subject properties/shops. In addition to the mortgaged property, the list/particulars of assets and liabilities of directors of respondent No.1 was filed on 15.05.1994 with the petitioner, which include the two out of these three immovable properties/shops, by respondent No.2. These two shops are C-22 and C-23. The applicant has admitted that these properties stood attached on 26.06.2000.
The history and/or particulars of these three subject shops with dates is separately discussed as under:-
Shop No.CA-22: The indenture of sublease in respect of this shop was executed on 04.09.1994 bearing registration No.2351 at pages 103 to 106 Volume No.3035 of Book No.I, Addl. dated 04.09.1994. For this shop a Power of Attorney claimed to have been registered in the name of A. Mateen Ahmed son of Late Abdul Hai by Abdul Nadeem Baig on 26.05.1998. The applicant claimed to have purchased this property after filing/publication of a public notice on 20.09.2001 in Daily Jasarat. Sale deed is claimed to have been registered on 12.12.2001 for sale consideration of Rs.2,30,000/-.
As far as this property is concerned it is inconceivable that on the basis of an Irrevocable General Power of Attorney dated 26.05.1998 the title could have been transferred. This Irrevocable General Power of Attorney cannot be equated with title in favour of one A. Mateen Ahmed son of Abdul Hai nor it is established or shown as such. When subsequent transaction in favour of the applicant took place i.e. on 12.12.2001 the property by that time had already been attached i.e. on 26.06.2000. Needless to say that any transaction after attachment of property is void.
Shop No.C-23:- It is claimed that one Mrs. Shakeela Kishwar wife of Abdul Mateen Ahmed was handed over the subject property vide indenture of sublease dated 06.10.2001. It is claimed and argued that the applicant decided to purchase this property and issued public notice on 20.09.2001 and then subsequently a sale deed of this immoveable property i.e. Shop No.CA-23 was registered in favour of applicant on 12.12.2001.
At the first instance before title could be delegated to one Mrs. Shakeela Kishwar wife of Abdul Mateen Ahmed (vide indenture of sublease dated 06.10.2001), it appears that the applicant showed his intention to purchase this property by issuing public notice on 20.09.2001 (Annexure C/3 page 119 of Part 1 file) i.e. prior to the title acquired by Shakeela Kishwar. This property had already been attached by virtue of order dated 26.06.2000, even at the time when Shakeela Kishwar, predecessor of applicant, stepped in, therefore the property could not have changed hands and the purported transaction could not withstand effect of the attachment of the property.
Shop No.CA-24:- Respondent No.2 Nadeem Baig claimed to have acquired title in respect of this shop by virtue of sublease dated 04.09.1994. Nadeem Baig through a sale deed of immovable property dated 28.10.1997 sold the property for sale consideration of Rs.2,50,000/- to Kashef Ahmar son of A. Mateen Ahmad. The applicant claimed to have purchased this property through a registered deed dated 12.12.2001 after issuing a public notice on 20.09.2001. Though this property also stood attached before the applicant could have purchased but it seems that at the time of attachment respondent No.2 had already transferred the subject property through a registered sale deed dated 28.10.1997. In addition, this property i.e. CA-24 was also not shown in the particulars of assets of director of respondent No.1. As against this shop the above two shops i.e. Shop No.22 and 23 were being enjoyed by respondent No.2 when the attachment order was passed and hence transfer, as claimed to have been made subsequent to the attachment order, is not only contemptuous but also void. The property/ Shop No.CA-24 could not have been attached as one Kashif Ahmar, not party in the proceedings, was the owner since 28.10.1997 from whom applicant purchased it on 12.12.2001.
In the circumstances I am of the view that it is not always necessary to frame issues for the disposal of application under section 12(2) CPC. The facts and circumstances are clear for the disposal of the application summarily in the instant case.
In view of the above facts and circumstances only property/Shop No.CA-24 is released from the attachment orders and the order is recalled to such an extent. As far as other two shops i.e. CA-22 and CA-23 are concerned, the application is dismissed.
The application stands disposed of in the above terms.
Dated: 10.02.2017 Judge