IN THE HIGH COURT OF SINDH, KARACHI

High Court Appeal No.449 of 2006

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Date Order with Signature(s) of Judge(s)

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Present:

Muhammad Ali Mazhar, J.

Abdul Maalik Gaddi, J.

M/s. Mehran Electrons

Company, through its Partner,

Abdul Razzaque Suri ……… Appellant

Versus

National Bank of Pakistan ……… Respondent

Date of hearing : 09.02.2017

Mr. Muhammad Azhar Faridi, Advocate for the Appellant.

Mr. Khalid Mehmood Siddiqui, Advocate for the Respondent.

J U D G M E N T

Abdul Maalik Gaddi, J. – Being aggrieved and dissatisfied with the judgment dated 03.04.2006 and decree dated 03.08.2006 passed by the learned Single Judge of this court in Civil Suit No.636 of 2004, whereby the suit for declaration and damages filed by the appellant against the respondent (bank) has been dismissed. The appellant has preferred the instant High Court Appeal with the prayer to set-aside the impugned judgment and decree and allow the appeal with costs.

2. Briefly the facts of the instant case as stated in the appeal are that the appellant is a partnership firm and used to manufacture and assemble valuable electronic items i.e. fans and its various parts alongwith many other electronic items and used to sell the same in whole sale and open market within and outside the city as well as used to sell the said electronic items to the government and semi-government departments and offices at its market price. The respondent had allowed small finance limit to the appellant of Rs.12,00,000/- (Rupees Twelve Lac only), on 19.12.1987, on markup basis at the rate of 45 paisas per thousand per day on daily products, on the terms and conditions embodied in the respondent’s sanction advice No.RCB:CR:7909/3384, dated 19.12.1987. The appellant executed the charged documents in favour of the respondent, mortgage the property bearing industrial plot No.16, measuring 2278 square yards situated at 6-A, North Karachi alongwith construction raised thereon. On account of different withdrawal in the account of the appellant dispute arose, on the complaint to the higher authorities of the respondent in shape of legal notices, an enquiry team comprising of M/s. Ghafoor Shaikh and Mehmood Ahmed of the respondent, conducted an inquiry deducted unauthorized debit entries, the appellant on account of acts of the respondent suffered mental and physical torture. The respondent filed Civil Suit No.145 of 1997 for recovery of Rs.6,17,445.46/- against the appellant in Banking Court No.III at Karachi, which was dismissed and no appeal was filed by the respondent, subsequently, thereupon, the title documents of the mortgaged property were not returned, thus, the appellant had sustained heavy losses and filed suit for declaration and damages against the respondent with the following prayers:-

(a) Judgment and Decree for declaration in favour of the plaintiff and against the defendant bank, and thereby to declare that the act of the defendant bank is illegal contrary to law and rules and byelaws of its own and thereby the plaintiff has got heavy loss of his business and loss of his income as well as loss of said partner’s good health and the plaintiff is legally entitled for recovery of damages amount from the defendant bank;

(b) Judgment and Decree in favour of the plaintiff and against the defendant bank and thereby to declare that the plaintiff is legally entitled for recovery of damages of Rs.2,00,00,000/- and thereby to direct the defendant bank to pay Rs.2,00,00,000/- as damages to the plaintiff above named with immediate effect;

(d) Any other better relief or reliefs which this Hon’ble Court may deem fit and proper under the circumstances of the case.

3. As per record, it appears that the respondent though served before the learned Single Judge, but did not contest the suit and was declared exparte vide order dated 15.08.2005. Consequently, the appellant filed affidavit in exparte proof as Ex.PW/1 of Abdul Razzaque Suri, one of the partner of the appellant’s firm reiterated the facts mentioned in the suit, alongwith amended partnership deed, photocopy of plaint of civil suit No.145 of 1997 alongwith written statement, photocopy of judgment and decree dated 19.11.2001 passed in the said suit, schedule of damages caused to the firm, legal notices alongwith their replies as Exhibits Nos.PW-1/2 to PW-1/15 respectively.

4. It also appears from the record that the learned Single Judge after perusing the record and hearing the learned counsel for the appellant dismissed the suit filed by the appellant by holding that mere assertion of the mental and physical torture without being proved from the cogent evidence cannot be the basis of the grant of damages to the appellant, hence, this appeal.

5. It is contended by the learned counsel for the appellant that the judgment and decree passed by the learned Single Judge are against the law, facts and material available on record liable to be set-aside; that the learned Single Judge has not considered the evidence, which was unrebutted and unchallenged in its correct perspective; that the findings given by the learned Single Judge are the result of misreading and non-reading of evidence. Per learned counsel that through impugned judgment and decree, the appellant’s suit, filed for damages on account of mental agony suffered by him due to filing of frivolous suit by the respondent bank, has been dismissed on the ground that the appellant has merely filed an affidavit-in-evidence in support of his claim against the respondent bank, and thus, has not been able to prove that he has suffered mental torture. Per learned counsel, that there is no hard and fast rule as to how the facts of the mental torture is to be proved and in such circumstances, the court is itself competent to determine the quantum of damages. Per learned counsel, the claim of the appellant was unrebutted and unchallenged before the learned Single Judge, even otherwise, according to him sufficient evidence was available before the learned Single Judge to decree the suit, but he did not agree with the evidence and documents produced by the appellant, without assigning any convincing/cogent reason, which require interference by this court by allowing this appeal as prayed. In support of his contentions, learned counsel for the appellant has relied upon the following case laws:-

(i) Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor reported as PLD 1996 SC 737;

(ii) Azizullah v. Jawaid A. Bajwa and 3 others reported as 2005 SCMR 1950;

(iii) Mrs. Zahra Zaidi v. M. Anwar Khan Ghauri reported as 2004 CLC 223;

(iv) Farrukh Saeed Khan v. Anis-ur-Rehman Bhatti reported as 2006 CLC 440.

6. Conversely, learned counsel for the respondent has supported the impugned judgment and decree and submitted that no error or illegality has been pointed out by the appellant requiring any interference by this court. Learned counsel argued that appellant had borrowed loan from the respondent and on account of some discrepancies in the account in the debit, the appellant was allowed adjustment, later the matter/controversy was decided in favour of appellant by the Banking Court No.III at Karachi in Civil Suit No.145 of 1997 filed by the respondent for recovery of Rs.617,445.46/-. It is also argued that the respondent filed said suit for recovery on the basis of reasonable and probable cause to initiate recovery against the appellant and failure to prove such case beyond reasonable doubt would not be termed as it was filed due to some malice of the respondent. He further argued that after disposal of the suit filed by the respondent, the title documents of the mortgaged property were returned to the appellant by the bank after completing all codal and legal formalities. He further argued that mere assertion of the mental and physical torture to the appellant without being proved from cogent evidence cannot be basis of the grant of damages to the appellant as has been rightly held by the learned Single Judge. He further argued that though the documents were returned to the appellant but the appellant himself did not mention the date of receipt of the mortgaged documents to avoid the consequences of period of limitation. Per learned counsel, the appellant being a partnership firm is a distinct legal entity. The claiming of “mental torture” by a partnership firm is, therefore, absurd and not maintainable in law. He further submitted that the appellant has miserably failed to specify, quantify and prove any loss claimed by him, as such, the suit is liable to be dismissed. In support of his contentions, learned counsel has also filed his written synopsis alongwith following case laws:-

i) Kalb-e-Haider & Co. (Pvt.) Ltd. v. National Bank of Pakistan reported as 2016 CLD 183;

ii) Ms. Ijaz Dyeing & Finishing Mills reported as 2015 CLD 1518;

iii) Shafiq Supreme Rice Industries (Pvt.) Ltd. v. Bank Al-Falah Limited reported as 2015 CLD 1211;

iv) Angora Textiles Ltd. v. United Bank Ltd. reported as 2015 CLD 1324.

v) Aijaz Mahmood v. Hongkong and Shanghai Banking Corporation reported as 2014 CLD 1244;

vi) Syed Ahmed Saeed Kimrani v. M/s. Muslim Commercial Bank Ltd. reported as 1993 SCMR 441;

7. We have heard the learned counsel for the parties at a considerable length and perused the record with their able assistance.

8. It is an admitted position that the respondent had allowed small finance limit of Rs.12,00,000/- on markup basis to the appellant in the year 1987 against the mortgage of immovable property description of which is mentioned in the memo of appeal. It appears that on account of different withdrawal in the account of the appellant dispute arose for which the appellant made complaint to the respondent and when matter was not resolved the respondent filed a Civil Suit bearing No.145 of 1997 for recovery of Rs.617,445.46/- against the appellant in the Banking Court No.III at Karachi, which was dismissed and according to the appellant, the title documents of mortgaged property despite of dismissal of the suit were not returned to him for a considerable time due to malice of the respondent, thus, the appellant sustained mental agony, torture, loss of good health and heavy losses to his business; hence, he brought suit for damages against the respondent, which was dismissed through impugned judgment.

9. A careful scrutiny of the record, we are of the view that mere dismissal of the respondent’s suit for recovery of disputed amount against the appellant would not confer any right to sue the respondent for damages on the basis of malicious prosecution. The law on the subject is settled by now. The prosecution of civil action would only provide a cause for damages for malicious prosecution to the opposite side, if the same is based on malice of the complainant and that too, when it is without any reasonable and probable cause. Merriam Webster Dictionary defines `malice` as “the state of mind manifested by an intent to commit an unlawful act or cause harm without legal justification or excuse,” whereas, probable and reasonable cause has been defined in Black’s Law Dictionary in its Eight Edition as “a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.”

10. The Hon’ble Supreme Court in the case titled “Muhammad Akram v. Mst. Farman Bi” (PLD 1990 SC 28), has formulated six (06) elements/ingredients to prove the malicious prosecution, which is reproduced as under:-

(i) That the plaintiff was prosecuted by the defendant;

(ii) That the prosecution ended in plaintiff’s favour;

(iii) That the defendant acted without reasonable and probable cause;

(iv) That the defendant was actuated by malice;

(v) That the proceedings had interfered with plaintiff’s liberty and had also affected her reputation; and finally

(vi) That the plaintiff had suffered damage.

11. According to the above meaning and the elements/ingredients as formulated by the Hon’ble Supreme Court to prove the malicious prosecution would make it abundantly clear that the plaintiff in a suit for damages for malicious prosecution should not only prove that: (i) that he was prosecuted by the defendant, (ii) that the prosecution ended in his favour, (iii) that the proceedings had interfered with his liberty and has also affected his reputation but should also establish and prove with authentic evidence that: (i) he was prosecuted with a malice, and (ii) that the prosecution was also without reasonable and probable cause. Unless the above ingredients are fulfilled and established, one cannot be held entitled for the damages for malicious prosecution. If the case of the plaintiff/appellant is seen in the light of the above discussion, then there is no hesitation in our mind that the plaintiff/appellant failed to prove and establish his case in the light of the above said legal position. Perusal of plaint would reveal that the above ingredients were alleged generally but not proved through convincing/cogent evidence. The evidence and documents filed by the appellant in shape of exparte proof has been perused but the same are also deficient in this regard. It is admitted fact that the appellant had borrowed loan from the respondent and on account of some discrepancies in the account, in the debit, the appellant was allowed adjustment and thereafter, matter was decided in favour of the appellant by the Banking Court, but it has not been proved in evidence that the respondent filed suit against the appellant without any probable cause and with malice. In our view, action or decision is said to be suffering from malice/malafide on facts if it is taken due to some personal grudge, animosity, or for some personal benefit. But here in this case, the respondent bank due to some dispute with regard to recovery filed the suit against the appellant, therefore, it cannot be said that the suit filed by the bank was without any probable cause and based upon personal grudge, animosity or for some personal benefit. Nothing existed on record to establish any wrongful act committed by the bank or that on account of act of the defendant some loss was occasioned by the appellant. Mere dismissal of the suit of the respondent for recovery against the appellant was not a “legal wrong” in the present scenario of the case. As such, the ingredients to prove the malicious prosecution as held by the Hon’ble Supreme Court in the case of Muhammad Akram (Supra) have not been fully established. Thus, no question arises for grant of damages in this case on the ground that appellant had suffered mental torture, agony and loss of his good health. Even otherwise, no medical certificate and expenses for treatment of mental torture, agony or loss of good health have been produced in the evidence to prove the allegations. No description with regard to the damages on which account caused to the appellant of Rs.200,000,00/- has been provided. The schedule of damages as caused to firm as Ex.PW-1/8 alongwith affidavit-in-exparte proof filed by the appellant does not show the signature of any of the partner of the firm, therefore, no reliance can also be placed on this document. Moreover, the appellant has miserably failed to specify, quantify and prove any loss claimed by him. In our view, the appellant being a partnership firm is a distinct legal entity. The claiming of mental torture by a partnership firm is, therefore, appears to be absurd and not maintainable in law.

12. It is argued by the learned counsel for the appellant that the respondent did not contest the case before the learned Single Judge and was exparte, therefore, the appellant filed affidavit-in-exparte proof in support of his claim alongwith the documents as mentioned in preceding paragraph No.3, as such, he was of the view that the case and claim of the appellant was unrebutted and unchallenged, thus, the suit filed by the appellant for damages should have been decreed. Reverting to the contention as raised by the learned counsel for the appellant, it is suffice to say that plaintiff/appellant in order to succeed in a case has to stand on his own legs and not to rely on the weakness of other side. In this regard we are fortified with the cases of MD. Anwarullah Mazumdar v. Tamina Bibi and 5 others reported as 1971 SCMR 94 and Mian Iqbal Mehmood Banday v. Muhammad Sadiq reported as PLD 1995 SC 351. As observed above, that the claim of the damages is based on account of mental, physical torture and loss of good health of the appellant, but in this regard, no documentary proof has been produced; therefore, the appellant has also failed to establish his case.

13. During the course of arguments, learned counsel for the respondent has pointed out that after the disposal of the suit by the Banking Court, the title documents of the mortgaged property were returned to the appellant by the bank after observing all legal and codal formalities and this fact has not been denied by the appellant, therefore, under the facts and circumstances of the case, mere assertion of the mental and physical torture without being proved from the cogent evidence cannot be the basis of the grant of damages to the appellant. The case laws relied upon by the learned counsel for the appellant has been perused and considered by us, but did not find applicable to the facts of the present case, therefore, are not helpful for the appellant.

14. Keeping in view hereinabove facts and circumstances of the case, we are of the view that the appellant has not been able to point out any illegality or error in impugned Judgment and decree, which require no interference by this Court. Accordingly, the instant appeal being devoid of any merits is hereby dismissed with no order as to cost.

Karachi.

Dated:

JUDGE

Faizan A. Rathore/PA*