HIGH COURT OF SINDH, KARACHI.
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1. For orders on C.M.A. No.4455/2011.
2. For orders on C.M.A. No.7403/2011.
3. For Examination of the parties/Settlement of Issues.
Date of hearing: 24.09.2012.
Mr. Agha Zafar Ahmed, Advocate for the plaintiff.
Mr. Nabeel Kolachi, Advocate for the defendant. -------------
Abdul Rasool Memon, J. Through the instant application under Order 7 Rule 10 read with Order 7 Rule 11 C.P.C, the defendant (Habib Bank) has prayed either to return the plaint to the plaintiffs for its presentation before the appropriate forum at Islamabad or rejection whereof summarily.
2. The suit in instant matter was filed by the plaintiffs before this court for Recovery of Original Documents, Declaration & Damages under Tort against defendant with the following prayers:-
1) Direct the Defendants for immediate return/delivery of the original title documents of suits properties to the plaintiff viz.
a. Original lease deed dated 01-01-1995 mortgage deed dated 19-10-2002, NOC from Capital Development Authority, Maps and Non Encumbrance Certificate in respect of Plot No.77 measuring 3333.33 sq. yards in Industrial Area Sector 1-10/3, Islamabad.
b. Original lease deed dated 01-01-1995 NOC from Capital Development Authority, Maps and Non Encumbrance Certificate in respect of Plot No.78 measuring 3333.33 sq. yards in Industrial Area Sector 1-10/3, Islamabad.
c. Original lease deed dated 06-01-1994 NOC from Capital Development authority, Maps and Non Encumbrance Certificate in respect of Plot No.63 measuring 2000 sq. yards in Industrial Area Sector 1-10/3, Islamabad.
II) Upon failure of the defendant to return any or all of aforesaid original documents, damages equivalent to the current value of the three properties i.e. Rs.360,000,000/- along with markup from the date of suit to the date of payment and cost of preparing duplicate documents.
III) Direct the Defendant to redeem the mortgage on Plot No.77 measuring 3333.33 sq. yards in Industrial Area Sector 1-10/3, Islamabad in favour of the plaintiff No.1.
IV) Damages for wrongfully detaining the original title documents of the said properties amounting to Rs. 50,000,000/-
V) Declare that the Defendant have wrongly detained the original title documents of the said properties.
VI) Declare that the act of the denial by the officers of the Defendant that no document is lying with them is mala fide, negligent and unlawful act.
VII) Grant cost of the suit.
VIII) Grant any further and better relief as may be deem appropriate by this Honourable Court in the interest of justice.
3. The facts forming the background of the suit are that the plaintiff No.1 is running a proprietorship business in the name of M/S Kamco whereas the plaintiff No. 2 is running his business in the name of M/S Seher and M/S Jabwad Enterprises. Both the plaintiffs claim to be owners/lessee of plot Nos. 77, 78, measuring 3333.33 sq. yards respectively and plot No: 63 measuring 2000 sq. yards in Industrial Area Sector 1-10/3, Islamabad. They claims that they were maintaining their bank accounts with Habib Bank, Industrial Area Branch Islamabad, since 1997, however, due to poor service of said Bank they decided to close their bank accounts with the said Bank in year 2002. But, on pursuance of the Officers of the Bank to the effect that better service will be provided to them in future, plaintiffs changed their decision and continuously operating bank account with the same Bank.
4. It is further stated in the plaint that on 11-05-2002 plaintiff No.1 deposited original title documents of his plot No.77 including lease deed etc for registering mortgage as collateral for availing credit facilities from the said Bank and as such plot was mortgaged on 19-10-2002 with the Joint/Sub-Registrar, Islamabad. On behalf of plaintiff No. 1, the plaintiff No. 2 also deposited the original title documents of plots No.78 & 63 with the same Bank including lease deed etc. Later on the plaintiff paid the entire outstanding to the said Bank towards all facilities availed from time to time, however, on the advise of the Bank, the original title documents in respect of aforesaid plots remained with the Bank so that the plaintiffs may avail further finance facility whenever required by them. In the year, 2006 the plaintiff No. 2 suffered an attack of paralyses and was advised bed rest and as such he was partially recovered in the end of year, 2008. In the beginning of year 2009, the plaintiffs decided to sell the suit property urgently to meet medical expenditure and for paying of certain debts and as such floated enquiries to the estate agents of the possibilities of selling the properties urgently, resultantly, prospected buyer has gone through the photo copies of the title documents in respect of aforesaid plots and in order to finalize the sale transaction, original documents were demanded from the plaintiffs. Thus, the plaintiffs through two letters requested the Manager of the concerned Bank at Islamabad to return them the original documents and have also visited said Bank. But they were intimated that where original title documents of plots are lying, said premises is under renovation process due to which record is not in arranged form and documents will be returned soon. However, the plaintiffs did not receive the original title documents of their respective properties from the Bank though in this regard they have written letters and sent legal notice to the defendant No.1 at Karachi. In the meanwhile plaintiff No: 2 received letter from estate agent on 20-02-2009 to the effect that since the plaintiffs were not able to show the original documents of Plot No.77, therefore the sell agreement between the plaintiff and the prospective buyer could not be reached. According to the plaintiffs, defendant without any justifiable cause has retained the original title documents of their properties and therefore, they have filed suit in a manner stated herein above. The defendant besides written statement has also filed instant application wherein he raised an objection to the effect; that this Court has no jurisdiction to entertain the suit.
5. Mr. Nabeel Kolachi, Advocate appeared on behalf of the defendant-Bank whereas the plaintiffs were represented by Mr. Agha Zafar Ahmed, Advocate.
6. Learned counsel for the defendant contended, inter alia, that according to the contents of the plaint, plaintiffs had been maintaining bank account with the Habib Bank, I-9, Industrial Area, Islamabad Branch and that credit facility had been availed there from by way of usance letter of credit after depositing original title documents in respect of their immoveable property located in Industrial Area Sector I-10/3 Islamabad, therefore, this Court has no jurisdiction in the matter to entertain the suit. The learned counsel lastly argued that the plaintiff besides claiming damages in the suit also prayed for direction against Habib Bank Branch Islamabad for returning back the original title documents in respect of their immoveable property and all other prayers made in the plaint are ancillary and incidental to the main prayer, therefore, plaint may be returned to the plaintiffs to be presented before the appropriate forum at Islamabad. The learned counsel relies on NATIONAL BANK OF PAKISTAN v. KHALID MEHMOOD (2002 CLD 658), MUHAMMAD NAVEED ASLAM and 3 OTHERS v. Mst. AISHA SIDDIQUI and 2 others (PLD 2010 Karachi 261), BANK ALFALAH LIMITED v. IFTIKHAR A. MALIK (2003 CLD 363), BANKERS EQUITY LIMITED through Principal Law Officer and 5 others v. Messrs BENTONITE PAKISTAN LIMITED and 7 others (2003 CLD 931) and MUHAMMAD NAVED ASLAM v. Mst. AISHA SIDDIQUI and 14 others (2011 CLC 1176).
7. As against this, learned counsel for the plaintiffs contended that since the head office of Habib Bank branch, Industrial Area Islamabad is located at Karachi, within the jurisdiction of this Court and the cause of action has also arisen partially at Karachi, therefore, this Court has jurisdiction to adjudicate upon the matter. In support of his arguments the learned counsel has placed reliance on Mehr ASHIQ HUSSAIN v. CITIBANK, N.A. through Chief Manager and another (2006 CLD 167), Messrs PEL APPLIANCES LIMITED v. UNITED BANK LIMITED (2005 CLD 1352), Messrs M.M.K. RICE MILLS v. GRAYS LEASING and others (2006 CLD 1147), ABDUL REHMAN ALLANA v. CITIBANK (2003 CLD 1843), Messrs SHAZIM INTERNATIONAL (PVT.) LTD. And 6 others v. Messrs FIRST WOMEN BANK LTD. (2009 CLD 432), CITI BANK N.A. v. Syed SHAHANSHA HUSSAIN (2009 CLD 1564), JEWAN and 7 others v. FEDERATION OF PAKISTAN through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), SAJID SAEED v. INAM UL HAQ (2007 MLD 1622), Messrs SEA GOLD TRADERS through Managing Partner v. WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others, (PLD 2011 Karachi 352), Haji RIAZ AHMED through Attorney v. Messrs HABIB BANK LIMITED (2012 CLC 507) and Messrs TAHA COMMODITY EXPORT v. KHADIM ALI SHAH BUKHARI (2011 MLD 1898).
8. I have gone through the record with the assistance of the learned counsel for the parties. I find that the plaintiffs claiming themselves to be owners/lessee of plot No: 77, 78, 63, measuring 3333.33 and 2000 sq. yards respectively situated in Industrial Area Sector I-10/3, Islamabad. In order to avail credit facility by way of usance letter of credit from Habib Bank I-9, Industrial Area, Islamabad Branch plaintiffs claims to have deposited title documents in respect of their said immoveable property with the Habib Bank at Islamabad where according to them their documents are still lying, therefore, the suit should have been instituted in Islamabad before appropriate forum where the subject matter of this suit viz immoveable property is situated. It will be relevant to mention here that besides other prayers plaintiffs have also claims damages which is not an independent relief but arising from the alleged wrong doing committed by the defendant namely Habib Bank branch Industrial Area Islamabad in the suit hence, plaintiffs can claim this relief also before the appropriate forum.
9. In case of Mohammad Naveed Aslam and 3 others Versus Mst: Aisha Siddiqi and 14 others 2011 CLC 1176 Division Bench of this Court while dismissing an appeal preferred against the Judgment dated 26-3-2010 passed by the learned Judge of this Court in Suit No:1122/2009, whereby the plaint was returned to the plaintiffs for its presentation before the Court of appropriate jurisdiction has been pleased to observe “The non applicability of Sections 16, 17 and 20 read with Order XLIX, Rule 3 is only applicable and limited to the original side jurisdiction for the district of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then Sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under Sections 16 to 19, C.P.C where after Section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter Section 16 is applicable therefore, the suit should have instituted in Thana Bola Khan where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit at Thana Bola Khan along-with other reliefs including the declaration as to the ownership, permanent and mandatory injunction”.
10. In the instant case, admittedly, the immoveable property owned by the plaintiffs, Habib Bank from where they claims to have obtained credit facility after depositing title documents of their immoveable property are located at Islamabad. It appears that the plaintiffs kept in view their convenience and as such without territorial jurisdiction filed suit at Karachi. The choice so made by the plaintiffs, is contrary to the provisions of C.P.C and dictum laid down by the Division Bench of this Court in case law as mentioned in supra para. The precedents cited by the learned counsel for the plaintiffs supra are not apt in the facts and circumstances of this case, inasmuch as in the said cases damage was not claimed on the basis of the mortgage of an immoveable property. The objection taken by the learned counsel for the defendant as in the circumstances, thus, substance and prevails.
11. In this view of the matter, the suit should have been filed by the plaintiffs at Islamabad, and not before this Court. The plaint is, thus, liable to be returned for its presentation before the appropriate Court at Islamabad. Order accordingly.
JUDGE
Arif