ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Admiralty Appeal No.02 of 2012

Present

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Abdul Maalik Gaddi

Date of hearing : 20.05.2014

Date of order : 15.07.2014

Appellants : S.S.Eagle Cap and another through

M/s Adeel Abid and Khalid Rehman,

Advocates.

Respondent : Hussain Can Company (Pvt) Ltd., through

Mr. Muhammad Haseeb Jamali, Advocate

Mr. Sanaullah Gondal, Law Officer,

State Bank of Pakistan.

O R D E R

Abdul Maalik Gaddi, J: Through this Admiralty Appeal, the Appellants have assailed the legality and propriety of the order dated 19-11-2012, passed by the learned Single Judge of this Court in Execution Application No.37/2012 out of Suit No.804/1993, whereby the learned Single Judge, while allowing the execution application has directed the Nazir of this Court to disburse the amount lying with him to the decree holder subject to proper verification and confirmation.

2. Facts giving rise to filing of the instant appeal are that the respondent filed the Admiralty Suit No.804/1993 in this Court against the appellants, which suit was decreed to the extent of Rs.12,00,000/- alongwith interest at the rate of 36 percent. Being aggrieved and dissatisfied with such judgment and decree, the appellants filed the Admiralty Appeal No.02/2006 before a Division Bench of this Court, which appeal was disposed of on 21-12-2010, whereby the judgment and decree passed by the learned Single Judge was maintained, however, the mark-up rate was modified and was directed to be paid at the bank rate.

3. Learned counsel for the appellants has argued that the impugned order passed by the Executing Court is illegal as the same has been passed without hearing the appellants/judgment debtors. It has been further contended by the learned counsel that the bank rates, which were submitted by two banks i.e. Habib Bank Limited and National Bank of Pakistan on the directions of this Court during the proceedings of this case, have not been properly calculated as according to learned counsel, the banks have calculated the compound interest over the amount lying with the Nazir of this Court. It has therefore, been prayed by the learned counsel for the appellants that respondent is only entitled to the simple interest on the principal decretal amount which may be disbursed to the respondent/decree-holder, whereas, the rest of the amount so accrued on the decretal amount may be returned to the appellants/judgment-debtors. In support of his contention, the learned counsel has placed reliance on the following reported cases:

1. Amber Ahmed Khan v/s Pakistan International Airlines Corporation, Karachi, PLD 2003 Karachi 405

2. Jewan Lal Daga and another v/s Nilmani Chaudhuri AIR 1928 (Privy Council) 80

3. (Gudimalla) Narasinham and another v/s (Paidimarri) Venkata Subbayya and another AIR 1933 (Madras) 171

4. Soneri Bank Limited v/s Idrees Ahmed Siddiqui and another 2005 CLD 1003.

4. Conversely, the learned counsel for the respondent/decree-holder has raised preliminary objections as to maintainability of the instant appeal on the ground that the impugned order passed by Executing Court in pursuance to a judgment and decree cannot be assailed by filing an appeal under Section 7 of the Admiralty Jurisdiction of High Courts Ordinance, 1980. It has been further contended by the learned counsel that the amount of Rs.12,00,000/- was decreed in favour of the respondent alongwith mark-up at the bank rate, which according to learned counsel keeps on changing from time to time, and as such, the mark-up accrued on the entire decretal amount is to be paid to the decree-holder, who is the ultimate sufferer due to deliberate default on the part of the appellants/judgment-debtors. It has been further contended by the learned counsel that if the plea of the appellants is accepted then it would mean that the respondent/decree-holder, whose amount was not paid to the decree-holder inspite of judgment and decree and was deposited before the Nazir by the order of this Court and was duly invested in profit bearing scheme, will be disentitled to the profit accrued thereon during all these years, and on the contrary, the appellants/judgment-debtors would get benefit of his own wrong and default by getting the major share in the profit accrued thereon at bank rate. It has been further argued by the learned counsel that appellants were provided complete opportunity at every stage of the proceedings, whereafter, the judgment and decree as well as the order in appeal was passed against the appellants which has become final, whereas, the impugned order passed by the learned Single Judge in the executing proceedings directing the Nazir to disburse the decretal amount lying with him, is in consonance to the judgment and decree duly modified in appeal by this Court, hence does not suffer from any error or illegality. It has been prayed that instant appeal being devoid of any merits may be dismissed with cost.

5. We have heard the learned counsel for the parties, perused the record and have also gone through the reports submitted by the State Bank of Pakistan, Habib Bank Limited and National Bank of Pakistan regarding calculation of markup as per bank rate.

6. It is an admitted position that the Division Bench of this Court while dismissing the Appeal No.02 of 2006, had maintained the judgment in Suit No.804 of 1993 passed by the learned Single Judge of this Court, however, modified the decree to the extent of mark-up of 32% to the mark-up to be calculated at the bank rate. The decretal amount of Rs.12,00,000/- was deposited by the Appellants/Judgment-debtors with the Nazir of this Court, which amount was invested in Special Saving Certificates and the same has, during pendency of the case, accumulated to the extent of Rs.98,55,431/- as on 28-11-2012, as per report dated 12-02-2014 submitted by the Nazir of this Court, available in case file. Appellants/Judgment Debtors claim that the respondent/decree-holder is only entitled to the extent of interest calculated upon Principal decretal amount of Rs.12,00,000/- annually and not upon the markup calculated on the amount accumulated each year including the amount of markup. Such claim of the appellants is not sustainable for the reason that the decretal amount of Rs.12,00,000/- was awarded by the Court in favour of the respondent/decree holder from the date when the suit was instituted, as such, whatever the interest/mark-up accrued thereon at bank rate and the profit earned during all these years for which it remained invested by the orders of this Court in profit bearing savings scheme, shall be awarded to the respondent/decree-holder, whereas, the appellants are not entitled to any amount of profit accrued thereon. Moreover, the reports submitted by the two banks i.e. M/s Habib Bank Limited and National Bank of Pakistan too indicate that the amount calculated at bank rate will keep on increasing not only as against the principal amount but is against the amount of mark-up/interest accrued from time to time, hence on this score too, the appellants claim stands negated. Needless to mention here that the case law relied upon by the learned counsel for the appellants is not of any relevance to the case in hand, as the facts of each case are quite distinguishable.

7. It would not be out of place to mention here that in the Memo of Appeal, the appellants have stated that a Review is pending against the order dated 21.12.2010 passed in Appeal No.02/2006, whereby the amount was ordered to be paid as per bank rate, but nothing has been paced on record nor the learned counsel for the appellants has made his submission regarding pendency of such review. Moreover, unless the judgment/decree is set aside or modified in appeal, the Executing Court cannot otherwise withheld the execution proceedings till any such decision is communicated to such Court. The order regarding disbursement of amount to the respondent as per bank rate has become final as admittedly no appeal against such order has been filed by the appellants before the Hon’ble Supreme Court. As regards the contention of the appellants that they were not heard while passing the impugned order, it may be mentioned here that before passing the impugned order on 19.11.2012, Notices were issued to the appellants but they did not appear before the Court to raise any objection in this regard, even otherwise, the impugned order has been passed in continuity of the execution proceedings, keeping in view the judgment/decree and the order passed by the Appellate Court in the instant case.

8. In view of the forging circumstances, we are of the considered view that the learned Single Judge has committed no error or illegality while allowing the execution application and has rightly ordered the disbursement of the amount to the decree-holder, keeping in view the bank rate, which order therefore, does not call for any interference by this Court. Accordingly, instant Admiralty Appeal is hereby dismissed with no order as to costs alongwith listed applications. Nazir is directed to release the amount in favour of the respondent i.e. decree-holder as per bank rate of two banks i.e. Habib Bank Limited and National Bank of Pakistan as given in his report dated 25.3.2014 by taking the Arithmetic mean of both the amounts calculated as per bank rate(s).

Appeal stands disposed off alongwith Nazir’s report and the pending application (s) in the above terms.

J U D G E

Arif