Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. D – 3250 of 2011
____________________________________________________________
Date Order with signature of Judge
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
1. For Katcha Peshi :
2. For hearing of Misc. No.14893/2011 (U/O XXXIX R 1&2 CPC) :
Petitioner : Muhammad Shafiq through
Mr. Aminullah Siddiqui, Advocate.
Respondent No.1 : House Building Finance Corporation
through Mr. Faisal Shahzad, Advocate.
Respondent No.2 : Ministry of Finance through
Mr. Muhammad Ashraf Khan Mughal, DAG.
Date of hearing : 27.03.2013.
O R D E R
Nadeem Akhtar, J. : Through this Constitutional Petition, the petitioner has challenged various actions of respondent No.1, including the action whereby auction proceedings have been initiated by respondent No.1 in respect of the immovable property admittedly purchased by the petitioner.
2. The relevant facts of this case are that one Syed Ehtesham Hussain obtained a loan from respondent No.1 for purchasing House No. C-45, Block C, Cantt. Bazaar, Malir Cantt., Karachi, measuring 240 sq. yds. (the property). The sale deed in respect of the property was executed and registered in favour of the said Syed Ehtesham Hussain on 31.12.2005, when he mortgaged the property with respondent No.1 in consideration of the said loan and as a security for the repayment thereof. The original receipt issued by the Sub-Registrar concerned for collecting the original registered sale deed was kept by respondent No.1, as it was admittedly the responsibility of respondent No.1 to collect the same from the office of the Sub-Registrar after completion of the usual formalities of registration. After collecting the registered sale deed in original from the Sub-Registrar, the same was to be retained by respondent No.1 till the full and final adjustment of the loan.
3. The petitioner purchased the property from the said Syed Ehtesham Hussain through an agreement dated 15.12.2008. The property was lying mortgaged with respondent No.1 when the petitioner entered into the said agreement. The sale consideration was agreed at Rs.13,000,000.00, out of which Rs.5,600,000.00 was payable by the petitioner to the said Syed Ehtesham Hussain, and the remaining amount of Rs.7,400,000.00 was required to be paid by the petitioner to respondent No.1 towards satisfaction of the loan. The amount of Rs.5,600,000.00 was duly paid by the petitioner to the said Syed Ehtesham Hussain, whereafter he executed a general power of attorney in respect of the property in favour of the petitioner, which was duly registered with the Sub-Registrar concerned on 27.03.2009. Out of the said amount of Rs.7,400,000.00 payable to respondent No.1, the petitioner paid a sum of Rs.2,981,641.00 to respondent No.1 between the period from May 2009 to August 2010. The loan obtained by the said Syed Ehtesham Hussain against the mortgage of the property was admittedly transferred by respondent No.1 in the name of the petitioner, and his name was substituted as the borrower in place of the said Syed Ehtesham Hussain. Out of the amount of Rs.2,981,641.00 paid by the petitioner to respondent No.1, a sum of Rs.1,314,252.00 was paid by the petitioner after the transfer of the loan in his favour.
4. It has been averred by the petitioner that all of a sudden some people visited the property and claimed that the property was for sale and they were interested in buying the same. The petitioner immediately rushed to respondent No.1 in order to inquire about the original file of the property. Initially, the petitioner did not receive any positive response from respondent No.1, but subsequently, he was informed that the original file of the property was not traceable and respondent No.1 had issued show cause notices in this connection to three of its employees. Thereafter, respondent No.1 issued a letter dated 29.12.2010 to the Sub-Registrar concerned, a copy whereof was marked to the petitioner by respondent No.1. Through the said letter, the Sub-Registrar was informed by respondent No.1 that the original registered sale deed of the property was collected by the said Syed Ehtesham Hussain from the Sub-Registrar’s office, and was kept by him instead of depositing the same with respondent No.1. It was specifically stated in this letter by respondent No.1 that the said Syed Ehtesham Hussain was trying to sell the property in the market illegally, although he had already sold the same to the petitioner, and that the petitioner was paying the loan installments to respondent No.1. The Sub-Registrar was specifically asked by respondent No.1 to “mark caution in red ” against the property in his record, and not to register any document or record any transaction in respect of the property without the clearance of respondent No.1. The Sub-Registrar was requested to provide to respondent No.1 for its record a certified copy of the original registered sale deed of the property illegally obtained by the said Syed Ehtesham Hussain.
5. It is the case of the petitioner that, in view of the above situation, respondent No.1 asked him on the one hand not to make further payments, and on the other hand, respondent No.1 published a notice in newspapers for the auction of the property, claiming that default had been committed in the repayment of the loan. Through this petition, the petitioner has prayed for suspension of the auction of the property, and for directions that respondent No.1 be directed to abstain from violating the fundamental rights of the petitioner, and to return to him the original file of the property.
6. Respondent No.1 has not disputed that the property was purchased by the petitioner for valuable consideration from the said Syed Ehtesham Hussain, who executed a registered general power of attorney in favour of the petitioner in respect of the property ; the loan obtained by the said Syed Ehtesham Hussain against the mortgage of the property was transferred in the name of the petitioner in the record of respondent No.1 ; and a substantial amount has been paid by the petitioner. It is also an admitted position that the receipt issued by the Sub-Registrar for collecting the original registered sale deed of the property was retained by respondent No.1, and it was the responsibility of respondent No.1 to collect the same and to keep it in safe custody. On our query, the learned counsel for respondent No.1 conceded that, without the said original receipt issued by the Sub-Registrar, the original registered sale deed of the property could not be released or delivered to any one by the Sub-Registrar, and that the said original receipt is still in the possession of respondent No.1. This clearly shows that the original registered sale deed of the property was got released from the office of the Sub-Registrar either with the collusion and connivance of the staff of respondent No.1 or due to their sheer negligence. It would not be out of place to mention here that respondent No.1 has not placed anything on record to show that any action was taken by it against its officials to whom show cause notices were purportedly issued. Respondent No.1 has also not lodged any FIR in relation to the loss of the original registered sale deed, or regarding the offence committed by its officials and the said Syed Ehtesham Hussain.
7. It may be observed that, after repayment of the loan to respondent No.1, the petitioner shall be entitled to receive from respondent No.1 all the original title documents of the property, including the original registered sale deed, at the time of redemption of the mortgage. As the mortgagee, it was the duty of respondent No.1 to keep the original registered sale deed of the property in safe custody and to return the same with the other original title documents to the petitioner at the time of redemption of the mortgage. In the present situation as the original registered sale deed has been misplaced or illegally obtained by an unauthorized person due to the gross negligence or collusion on the part of respondent No.1, the petitioner shall not be able to receive the same even if the entire loan is repaid by him. As rightly pointed out by the learned counsel for the petitioner, this would certainly affect the market value of the property because in case any attempt is made by the petitioner in future to sell the property, the sale may not materialize for want of the original registered sale deed, or if does, the property may not fetch its true and actual market price.
8. In view of the above discussion, it is ordered as under :
A. Within 30 days from the date of this order, respondent No.1 shall, at its own cost, obtain from the Sub-Registrar, Shah Faisal Town, the certified true copy of the sale deed in respect of House No. C-45, Block ‘C’, Cantt. Bazaar, Malir Cantt., Karachi, measuring 240 sq. yds., registered at No. 5574 on 31.12.2005 (M.F. Roll No.3890 dated 04.02.2006), with the said Sub-Registrar in the name of Syed Ehtesham Hussain son of Syed Taqi Hussain ;
B. The certified true copy of the aforementioned sale deed shall be kept by respondent No.1 in its safe custody, and a copy thereof shall be provided to the petitioner ;
C. Within 15 days from the date of this order, respondent No.1 shall lodge an F.I.R. against the officials / persons responsible for the loss of the aforementioned original sale deed or its illegal collection from the Sub-Registrar’s office, and shall provide a true copy thereof to the petitioner. Respondent No.1 shall also arrange publication of a public notice within the said period at its own cost in the English daily ‘Dawn’ and the Urdu daily ‘Jang’, notifying the loss of the said original sale deed, and shall provide copies thereof to the petitioner ;
D. In addition to the above, respondent No.1 shall initiate and complete the inquiry and disciplinary action against its delinquent officials, and report the compliance through the M.I.T. within 30 days ;
E. Upon full and final settlement of the loan by the petitioner in accordance with law, the property shall stand redeemed in favour of the petitioner, and respondent No.1 shall immediately hand over to the petitioner the original certified copy of the aforementioned sale deed as well as all the other original title and mortgage documents of the property ;
F. Respondent No.1 shall pay a sum of Rs.100,000.00 (Rupees one hundred thousand only) to the petitioner within 30 days from the date of this order as compensation for the gross negligence and collusion on its part. This will not affect the right of the petitioner to take action, if he is so advised, against respondent No.1 for the negligence and the wrong committed by respondent No.1 ; and
G. The office is directed to serve a copy of this order to the learned Advocate General Sindh and the Sub-Registrar, Shah Faisal Town, Karachi, and report compliance through the M.I.T.
This petition and C.M.A. No. 14893 of 2011 stand disposed of in the above terms.
Chief Justice
Judge
*CP D-3250-11.doc/Judgments DB/Court Work/ARK*