2008 PLP 315 (CLD)

NADEEM AZHAR SIDDIQI, J.

By this application, the applicant/objector has prayed that the property being N.N. Textile Mills (Private) Limited constructed on Survey No.55/I, Pathra Hub Chowki, RCD Highway, Balochistan, may be released from attachment. In the affidavit in support of the application, the objector submits that the property is owned by them being acquired the same from Mrs. Shamim Ghaznavi vide Sale Agreement dated 17-7-1980 which was culminated vide registered Sale-deed dated 25-3-1985 executed by Mrs. Shamim Ghaznavi. The petitioner has filed counter-affidavit to the said application in which it has been stated that the application is time barred. On merits it has been stated that the respondents availed local currency loan from the petitioner in or about March, 1980 and created a simple mortgage and/or charge over the property. The learned counsel for the objector submits that the property in question was never mortgaged with the petitioner and refers to Paras 5 and 24 of the petition and submits that the property in question is not included in the list of properties mortgaged with the petitioner. He further submits that no charges against the property was ever created in terms of sections 121 to 129 of the Companies Ordinance, 1984 and the mandatory requirement of section 58-F of the Transfer of Property Act, 1882 was not followed. The learned counsel for the petitioner submits that the charge against the property was created under section 100 of the Transfer of Property Act and that the property was included in the main petition for attachment and sale strictly in accordance with the provisions of section 39 of IDBP Ordinance. He then refers to Agreement dated 20-6-2001 (Agreement to create mortgage on future assets) and submits that by this Agreement the charges have been created against all future assets, of the respondents. He then submits that no notice of purchase of property was issued and before the Sale-Deed the mutation was effected which create doubts. In rebuttal the learned counsel for the applicant/objector submits that without deposit of title documents no mortgage can be created. He submits that section 100 of the Transfer of Property Act is not applicable' and on the day when the Agreement dated 20-6-1981 was executed the respondent No.3 was no more the owner of the property and cannot mortgage the' same and that the objector has acquired the property much before the execution of the said agreement. I have heard the learned counsel for the parties and perused the record made available before me. The respondents have obtained the loan vide Agreement dated 20-6-1981. According to this agreement, the security for payment was mortgaged of Property No.27/3, RCD Highway, Hub Chowki and on the same date an agreement to create mortgage on future assets was signed by the Managing Director' of the respondent No.1 and not by respondent No.3. The petitioner has not produced any documents to show that at any point of time this property was mortgaged with them or that they have created any .charge upon the property. The loan was obtained by the respondent No.1 in view of the Agreement dated 26-6-1981 whereas the property was sold to the objector by the respondent No.3 vide Sale Agreement dated 5-3-1980 and the mutation was effected in the names of the purchaser on 16-2-1981. The agreement to create mortgage on future assets was executed on 20-6-1981 and has no effect on the transfer which was completed before that date. On 20-6-1981 the day when the Credit Agreement between the petitioner and the respondent No.1 was executed the respondent No.3 was no more the owner of the property and the same cannot be subject-matter of any credit agreement. The property in question was never offered as security in terms of section 100 of the Transfer of Property Act. The petitioner has also not produced any document to show that at any point of time the charge was created against the said property or the same was simply mortgaged with them. Even no document has been filed to show that while obtaining loan the respondent No.3 claimed this property and on that basis the loan was granted to the respondent No.

1. It appears that the property in question was got attached without any cause and jurisdiction. In view of the above position, the application is allowed and the property is released from interim attachment. M.H./I-29/K Application allowed.