1998 PLP 563 (CLC)

(c) FF 53,055.80 (French Francs) as overdraft at France.

4. I have heard Mr. Abrar Hasan, for the plaintiff and M/s. Mehmud Mandviwala and S.A. Sarwana, for the defendants. It is strenuously contended by Mr. Abrar Hasan, that in view of the fact that the suit property is situated at Karachi, therefore, this Court has jurisdiction. Reference was made to section 16 of the Code of Civil Procedure while opposing the defendants' application under Qureshi v. Mst. Najma Lakhwera and others (PLD 1992 Lahore 205) and Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others (PLD 1994 Lahore 525). In the last cited case a learned Single Judge of Lahore High Court Malik Muhammad Qayyum, J., in his elucidated judgment discussed the principles of conflict of Laws vis‑a‑vis public and Private International Law, particularly in reference to the Arbitration Act, 1940 and Arbitration (Protocol and Convention) Act, 1937. It would be advantageous if paragraph 95 of the said judgment is reproduced, for the time being, it would rest the question of jurisdiction:‑‑‑ "

95. In M.A. Chaudhry v. Mitsui O.S.K. Lines Ltd. (PLD 1970 SC 373), it has been observed by the Supreme Court that before giving up its jurisdiction even the Pakistani Courts will require where a remedy is available to the affected party in the Foreign Court. It was laid down that (page 390) "even upon the principle adopted by the East Pakistan High Court in each case, there should of necessity have been an enquiry to find out whether under the proper law of contract the foreign Court to which exclusive jurisdiction was sought to be given, had, in fact jurisdiction to try the cause of matter according to the laws of that country

If it so happens that the Foreign Court has no jurisdiction in the matter, or is unable to grant relief sought for, then the plaintiff would be left with no redress at all". In this view of the matter also, the plea of ouster of jurisdiction of the Courts in Pakistan cannot be upheld. "

5. In this suit the plaintiff as claimed in the plaint was employed as an officer in the year 1974. It is stated in the plaint that plaintiff had joined services with the defendant No. 1, namely, Habib Bank Limited, but no letter of appointment or any other document is filed in support of such claim. On the f contrary, Annexure 'A' to the plaint, which is a letter, dated 15th July, 1981, issued by BCCI, SA, shows that the plaintiff's salary was increased. According to Annexure ' A' filed with the joint written statement of defendants Nos.2 to 4, plaintiff was dismissed from service with immediate effect from 4th September, 1990 on the ground that he failed to report to the Branch Office in Rome, Italy after his transfer, which fact is impliedly admitted in the plaint. This suit was filed after a lapse of more than three years on 9th September, 1993 with the prayer for a money decree in sum of Rs.69,28,230 equivalent to US $ 2,30,941.28. The break‑up of such claim is filed as Schedules 1 and 2 to the plaint, which indicate that the above claim is based on the following outstandings, as claimed by the plaintiffs:‑‑‑ (i) 13 months' salary @ US $ 22,761 $ 24,661 (ii) Bonus on tenure of 5 years $ 9,696 (iii) Arrears of 5 years pertaining to return air, $ 29,090 passage for self and family. (iv) Time deposit with BCCI (Paris) $ 13,500 (v) Damages $ 100,000

Total $ 1,76,947

(Equivalent to Pak Rs.53,08,410)

6. The plaint lacks in material particulars. The plaintiff did not file any document to show his terms and conditions of appointment, conditions of his transfer, entitlement to air passage and bonuses etc., etc., neither any proof in respect of rate nor details of provident fund are available on record. Besides recovery, the plaintiff is also seeking declaration that the equitable mortgage in respect of plaintiff's property bearing' No. G‑18/1, measuring 1200 square yards, Block B, North Nazimabad, Karachi, be declared void, inoperative and being opposed to public policy. According to plaintiff's own averments he obtained loan for acquiring personal residential property in Karachi in the year 1986. Annexures ' L' & ' M' to the plaint further indicate that a sum of US $ 85,000 was disbursed by BCCI OS, Karachi, in the months of February and March, 1986. He executed a Memorandum of Deposit of Title Deed in respect of the said property as well as executed General Power of Attorney in the month of March, 1986, which are available on record as Annexures ' E‑2' and ' E‑3' with the joint written statement of defendants Nos.2 to

4. After a lapse of more than seven years, he has filed this suit for declaration, which claim, in my tentative view, appears to be barred by Article 120 of the Limitation Act. In order to ascertain the legality of the said equitable mortgage, it is pertinent to observe that the plaintiff in paragraph 11 of the plaint has admitted that he was continuously repaying the loan instalment(s) as agreed earlier, up to the month of September, 1990. This admission of plaintiff further indicates that after his dismissal from service he has not paid any instalment(s) towards the loan amount, which is clear violation of Clause 2 of the letter, dated 26th February, 1986 (Annexure ' M' to the plaint), which provides that if the officer is no more in service of the Bank the entire outstanding house loan will become repayable with interest, the rate of which will be increased to normal commercial level.

7. In regard to the outstanding amount of salaries claimed, the plaint is silent on the period of this outstanding salary. Probably, this may be, the period prior to dismissal of plaintiff, which must be earlier to August, 1990. Again this suit having been filed in the month of September, 1993, it tentatively, appears that this claim is also barred by time. As far as claim of time deposit with BCCI Paris of US $ 13,500 is concerned, there is no material available on record to prima facie show that any such deposit was made by or on behalf of the plaintiff, there is only verbal assertion in the plaint. The plaintiff has also claimed Order VII, Rule 11, C.P.C., he has referred to the case of Fatima Moeen v. ADJ, Sheikhupura and 22 others (1992 SCMR 1199), Hakim Bashir Ahmed v. The Government of Sindh and 2 others (1984 CLC 3061), Mst. Shamim Akhtar US $ 100,000 as damages for his suffering and losses. According to the averments of the plaint all the alleged acts and deeds of the 'defendants, for which the plaintiff has suffered mental torture and anguish, were either prior to the year 1990 or during the year 1991. Again this suit was filed after a lapse of more than two years which tentatively appears to be barred according to Article 36 of the Limitation Act.

8. The above discussion left us with the only claim of plaintiff regarding redemption of equitable mortgage. This claim is covered by the provision of section 60 of the Transfer of Property Act and appears to be within time. In order to obtain interim injunction, the plaintiff is required to show presence of all the three ingredients in his case. As far as the legal objections of the defendants are concerned, two of them, to some extent, are tenable but a plaint cannot be rejected in part. It is to be rejected as a whole for the reasons mentioned in Rule 11 to Order VII, C.P.C. All the allegations and counter allegations of the parties lead me to the view that it would be in the interest of all the parties if the status quo in respect of the suit property is maintained till disposal of this suit. At the same time, I am also of the view that the other creditors of BCCI OS and BCCI SA may not be kept waiting for indefinite period, it is, therefore, necessary that some conditions should be imposed on the plaintiff in the interest of justice while granting interim injunction.

9. For the facts and reasons discussed hereinabove, the application for rejection/return of the plaint filed by the defendants is dismissed while application for interim injunction, filed by the plaintiff, is granted subject to the following conditions:‑‑‑ (a) The defendants are restrained from handing over, delivering, transferring or removing from Pakistan title documents of the suit property till disposal of the above suit. (b) That the above order of interim injunction is subject to further condition that the plaintiff shall deposit the outstanding amount of house loan with the Nazir of this Court within two months. (c) That the above amount when deposited by the plaintiff shall be invested by the Nazir in some profitable scheme. (d) That in case the plaintiff fails to deposit the above outstanding amount of house loan, as directed above this order of interim injunction shall automatically stand vacated/recalled.

10. With the above observations both the applications bearing C.M.A 9704/93 and 5716/94 stand disposed of. C.M.S./T‑15/K Application disposed