ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.1110 of 2017
Ghulam Murtaza Durani
Versus
Saleem Uddin
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DATE ORDER WITH SIGNATURES OF JUDGE(S)
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For orders on Award
Dated: 11.09.2018
Mr. Aftab Ahmed Khan for plaintiff.
Mr. S. Sabir Ali for defendant.
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Zulfiqar Ahmad Khan, J.- This petition has been moved under section 14(2) of the Arbitration Act, 1940 read with Rule 282(1) of Sindh Chief Court Rules.
Brief facts of the case are that the plaintiff allegedly entered into a sale agreement with the defendant in respect of certain properties for a total sale consideration of Rs.9 Crore. As part of the agreement, the defendant paid Rs.1 Crore and plaintiff handed over original conveyance deed of the property to the defendant whilst the defendant promised to pay balance of Rs.8 Crore within six months. Since after passing of six months, the defendant did not make payment of the balance sale consideration, as per clause 9 of the sale agreement, the plaintiff forfeited the advance, however defendant failed to return the original documents in respect of property to the plaintiff.
The parties approached Sole Arbitrator as per clause 11 of the sale agreement who passed the Award holding that the plaintiff had right to cancel the sale agreement and to forfeit token money and defendant is bound to return original documents received by him, however the Arbitrator went on to say, “that the defendant would not be entitled to obstruct/object the transfer/mutation of the suit property in the name of the plaintiff in the concerned department i.e. Mukhtiarkar Gulzar-e-Hijri East, KDA Scheme No.33, Karachi”, and also shall not raise any objection to have the property transferred or mutated in the record of rights.
The Award also empowers the plaintiff to obtain a certified copy of the documents from the Sub-Registrar and thereafter the property be transferred/mutated in favour of the plaintiff from the concerned departments and the appointed commissioner will be empowered to sign all such documents, necessary papers, applications and sworn affidavits in this regard.
On 13.04.2018 this Court after having observed that no document in respect of the alleged Award were available on record, directed the office to place entire record on the file and the learned counsel was directed to facilitate this exercise. On 17.08.2018 having observed that no such documents had come, the matter was taken up and proceeded in the absence of these documents and it was observed that the counsel to satisfy as to the very merit of this case as valuable property rights are attempted to be created in the name of the plaintiff arbitrarily without any due process of law and particularly in absence of any title documents.
Learned counsel for the plaintiff has appeared today and submitted that it was the responsibility of the office to place these documents and claim that the original title documents were filed along with instant petition, which assertion appears to be far fetch as law and prudence does not dictate original title documents to be filed along with the petition as those could be produced as and when required by the Court.
Be that as it may, in terms of Section 14(2) of Arbitration Act, 1940 the Arbitrator at the request of the party to the arbitration agreement is to cause the Award or a signed copy thereof together with any depositions and documents, which have been taken in proof before him to be filed in the Court. In the case at hand only a receipt of payment of Rs.5/- is attached with the instant Award while documents are allegedly filed along with petition, however none of them are available. Of peculiar concern is that none of the documents enlisted in pages 3 and 5 of the petition are original as it is clearly mentioned that these are photocopies.
A typical sale/purchase agreement may result in forfeiture of the token money, however this could not lead to create any right in the suit property in favour of seller/plaintiff. To me the entire transaction looks like to be a sham as no proof of payment of Rs.1 Crore by the buyer to the seller is provided. Particularly in view of the fact that defendant has also not filed any objection rather as per O.S. diary dated 19.12.2017 learned counsel for the respondent appeared and submitted that they had already filed no objection to the Award. I am afraid that through instant proceedings, this Court is used to facilitate unwarranted creation of title in favour of the plaintiff of the suit property which is neither an object or purpose of an application made under section 14(2) of the Arbitration Act, 1940.
In the circumstances at hand, where no necessary documents mandated by Section 14(2) of the Arbitration Act have been filed, the application which clearly appears to be a mischievous endeavour to play fraud with Court is dismissed.
J U D G E