2011 PLP 1355 (CLD)

IQBAL HAMEED-UR-REHMAN, C.J.

By this single order, I intend to dispose of the above mentioned four applications.

2. In C.M. No. 168 of 2009 the applicant/plaintiff has prayed that respondent/defendant No.7 be restrained from transferring, alienating or parting with the possession or otherwise encumbering, charging, disposing or dealing with his mortgaged property, Plot No.B-4, Poultry and Vegetable Scheme No.II, Park Road, Chak Shahzad, Islamabad, till the final decision of the suit.

3. In C.M. No.166 of 2009, the applicant/plaintiff has prayed for attachment before Judgment, of certain properties, including shares of certain companies owned by the respondents/defendants mentioned in the said application.

4. In C.M. No. 194 of 2009, the applicant/plaintiff has prayed that an order for attachment of the bank Account No.1390-03-01-0000859 in MCB Limited, Stock Exchange Branch, Blue Area, Islamabad, before Judgment/decree may be passed and has also prayed that the respondents be restrained from alienating/transferring the amount kept in the said Account of MCB till the final disposal of the instant suit.

5. In C.M. No. 204 of 2011, the applicant has prayed for attachment of Property i.e. House No.40, Margalla Road, Sector F-6/3, Islamabad, owned by respondent/defendant No.2, before the judgment/decree likely to be passed in the instant suit.

6. Learned counsel for the applicant/plaintiff argued that the applicant/plaintiff had extended certain financial facilities worth Rs.800.00 Million to respondent No.1 vide facility Advising letter dated 6-2-2008 and in order to secure the said facility obtained by respondent No.1, respondent No.7 had mortgaged property, Plot No.B-14, Poultry and Vegetable Scheme No. 11, Park Road, Chak Shahzad, Islamabad, therefore, respondent No.7 be restrained from alienating the said property till the final decision of the instant suit; that the applicant has filed suit for recovery of Rs. 130,624,885.18 and the applicant has the apprehension that the respondents may sell their properties/assets in order to frustrate the judgment likely to be passed in the instant suit, therefore, the respondents be restrained from selling certain properties mentioned in C.M. No. 166 of 2009. Similarly while arguing. C.M. No.194 of 2009, learned counsel has argued that the respondents be restrained from using bank Account No.1390-03-01-0000859 in MCB Limited, Stock Exchange Branch, Blue Area, Islamabad till the final decision of the suit filed by the applicant/plaintiff. The applicant has also prayed that House No.40, Margalla Road, Sector F-6/3, Islamabad, owned by respondent/ defendant No.2 be attached before judgment in the suit filed by the applicant/plaintiff.

7. Conversely, learned counsel for respondents/ defendants Nos.1 to 5 argued that the financial liability, as alleged by the applicant has been denied by the respondents and have filed a set off claim of Rs.800,00,000 (eight crores) and this fact has been admitted by the applicant/plaintiff; that the applicant has no prima facie case; that under the Constitution no embargo can be placed on the properties owned by respondents Nos.1 to

5. Learned counsel further argued that already property i.e. Plot No.B-17 Poultry and Vegetable Scheme No.II, Park Road, Chak Shahzad is mortgaged and a lien against the said property was marked in favour of the applicant in the Office of CDA and the value of the said property is approximately Rs. 2500,00,00 (twenty five Crores), while the claim of the applicants is of Rs.1700,00,00 (seventeen Crores). Learned counsel for respondents Nos.1 to 5 has argued that the instant applications have been filed in order to harass the respondents; that the applicant has failed to show that respondent; are going to dispose of their properties with mala fide intentions and have no other source to satisfy the decree, if passed in the instant suit; that the shares which are sought to be attached belong to other companies; that the applications filed by the applicant are liable to be dismissed with special costs of Rs.25,000 each.

8. Learned counsel for respondent No.7 in the first instance opted the arguments advanced by the learned counsel for respondents Nos.1 to 5 and further argued that the Constitution of the Islamic Republic of Pakistan, 1973 does not permit to restrain any one from using his property in any manner whatsoever, except if an order is passed by a court of competent jurisdiction; that not a single word has been mentioned in these applications to the extent that the respondents are going to dispose of their properties; that the bank account Account No.1390-03-01-0000859 in MCB Limited Stock Exchange Branch, Blue Area, Islamabad was not pledged, therefore, no order could be passed for attachment of the said bank Account; that in the instant case, sufficient mortgaged property is available with the plaintiff and there is no reason to believe that the decree, if passed in the instant suit would not be satisfied; that the applicant has filed these applications under section 16(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and under Order XXXVIII, Rule-5 read with section 151, C.P.C., whereas, these applications do not fulfil the requisite conditions mentioned in the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as under Order XXXVIII, Rule 5 read with section 151, C.P.C.

9. Arguments pro and contra taken into consideration and the record made available on file perused.

10. Through the instant applications, the applicant/ plaintiff has sought not only attachment before judgment of various properties of Directors of respondent Company rather has also sought attachment of their shares in different companies. The applicant/plaintiff in C.M. No.194 of 2009 has sought that bank Account No.1390-03-01-0000859 in MCB Limited, Stock Exchange Branch, Blue Area, Islamabad be attached and the respondents be restrained from transferring the amount lying in the said Account and in this regard an interim order dated 10-7-2009 has also been passed. These applications have been filed under Order XXXVIII, Rule 5, C.P.C. read with section 151, C.P.C. and section 16(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, whereby restraint order with regard to further alienation of immovable property as well as shares and attachment of bank account is sought by the applicant/plaintiff on account of financial facilities allowed to the respondents/defendants amounting to Rs. 17,000,000 (seventeen Crores). Admittedly the said financial facility has been allowed against security of mortgage property, Plot No.B-14, Poultry and Vegetable Scheme No.II, Park Road, Chak Shahiad, Islamabad, the estimated value of which is Rs. 2500,00,00 (twenty five Crores) and in this regard suit is pending, as such, the liability of the respondents/defendants is yet to be determined. Admittedly sufficient security has been obtained by the applicant/plaintiff, before allowing the finance, facility in the form of mortgage property on which the applicant/plaintiff has got the first lien charge. In the presence the same, if the instant applications of the applicant/plaintiff are allowed, it would result in a chain reaction in the financial circle against the respondent/ defendant company and its Director which would ultimately result in disaster which would neither benefit the plaintiff nor the defendants. Allowing the instant applications would in fact adversely affect the business of the defendants and the impact would that their business would come to an halt, as such, same cannot be justified in any manner whatsoever in the presence of sufficient security being available to the applicant/plaintiff in the form of mortgage property. Even on legal plane the applications cannot sustain as section 16(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, clearly indicates that the same is not applicable to the properties mortgaged/pledged and in the instant case the applicant has sought attachment of properties other than mortgaged/ pledged properties, hence the instant applications are not sustainable. Moreover, under Order XXXVIII, Rule 5, C.P.C. no order for attachment before judgment can be passed on mere apprehensions/presumptions. Reliance in this regard is also placed on the judgment reported as Messrs MEC Shipbreakers Ltd. v. Messrs Peason Investment Inc. and another (PLD 1982 Karachi 701) wherein it was held that:-- "Order XXXVIII, Rr.5 and 6

Attachment before judgment

Object of O.XXXVIII, R.5

To provide safeguard to plaintiff if defendant with intention to delay or defeat decree does any offending act mentioned therein and not to paralyse normal and bona fide transactions, business and commercial activities

Mere presumption and apprehensions of plaintiff as to indulgence of defendant into such offending acts

Cannot justify attachment before judgment."

11. In view of the above perspective, the instant applications have no merits and the same are hereby dismissed. M.H./44/Isl. Applications dismissed.