2008 PLP 158 (CLD)

NADEEM AZHAR SIDDIQI, J.

This application bearing C.M.A. No.252 of 2007 was filed by the objector claiming that she is the owner of Property No.9/2, 5-A, Nazimabad, Karachi and her property may be released from the attachment. In the affidavit in support of the application, it was stated that the objector was never party to the proceedings and has no concern with the respondent-Company. The petitioner has filed counter-affidavit to the application and submits that the property was declared property in terms of section 39 of I.D.B.P. Ordinance, 1987 and simple mortgage in terms of section 100 of Transfer of Property Act was created and the husband of the objector, namely, Abdul Qadir with mala fide intention gifted the property to objector to defeat the recovery process. The objector has filed rejoinder and submits that the property was never mortgaged and at the time of obtaining loan the J.D. was not owner of the property. The Official Assignee has also filed his reply in which he submits that no offer was received for the property claimed by the objector. The learned counsel for the objector submits that at the time of mortgage in 1987, the respondent No.3 was not the full owner and was not competent to mortgage the property in terms of section 100 of Transfer of Property Act. He submits that unless the legal requirement is completed no legal mortgage was created and the property of the objector, who is a bona fide claimant, cannot be sold. He relied upon the reported case of Mian M. Rafiq Saigol v. Trust Modaraba 2003 CLD

646. The learned counsel for the petitioner submits that Abdul Qadir declared the property as his property and the same was declared in terms of section 39(6) of the I.D.B.P. Ordinance, 1961 and the property was undercharged in terms of section 100 of Transfer of Property Act and that the property was gifted in favour of objector during the continuance of mortgage to frustrate the recovery proceedings. The learned Official Assignee submits that the dispute is with the petitioner and the objector and he has nothing to do with the same. I have heard the learned counsel for the parties and perused the record. The perusal of the documents shows that the respondent No.1 has executed Loan Agreement with the petitioner. The Promissory Note dated 27-3-1988 was signed by Abdul Qadir along with others and a General Power of attorney was also executed by Abdul Qadir in favour of I.D.B.P. Agreement of Hypothecation was also signed by Abdul Qadir, but the same was in respect of some other properties. The guarantee was also signed by Abdul Qadir and at page 297 the said property was mentioned as the property of Abdul Qadir. No mortgage deed was executed by Abdul Qadir in respect of the property in question. No deed for deposit of title documents was executed by Abdul Qadir and no title documents of the property was deposited with the petitioner to create equitable mortgage. From the perusal of documents produced by the objector, it appears that the objector has got the property in question through gift from Abdul Qadir in the year 1990. The property was also not offered as security in terms of section 100 of the Transfer of Property Act and on the basis of documents appearing at page 297 of the file, which is a simple statement showing the particulars of assets and liabilities of Director/Partner/Proprietor it cannot be said that the property was equitably mortgaged or kept for security with the Bank. The petitioner has also not produced any document to show that at any point of time the charge was created against the said property. For creating equitable mortgage it is necessary that a Memorandum of deposit of title deeds be executed and the title documents be deposited. In the reported case of Allied Bank of Pakistan Ltd. v. Sainjees Restaurant and Motel 1985 CLC 391 it was held as under:-- "While creating an equitable mortgage no document of title was deposited by the defendants at 'any time. Therefore, Memorandum of deposit of title deed cannot create any right in favour of the plaintiff. No equitable mortgage was legally created in favour of the plaintiff, therefore, no decree under Order XXXIV, Rule 4, C.P.C. can be passed against the defendants and the properties which are alleged to have been mortgaged to the Bank". In view of the above, the application is allowed and the property is released from the attachment. S.A.K./I-25/K Application accepted.