P L D 2016 Sindh 332 (PLP)

SALAHUDDIN PANHWAR- J: Through instant petition, the petitioner has sought his adjudication as 'insolvent' under sections 10, 13 and 15 of the Insolvency (Karachi Division) Act of (III of 1909).

2. The petitioner, through instant petition, sought his adjudication on grounds that he has been doing his job of mason/labour on daily wages; contracted marriage with one Mst. Nazeeran Bibi on 08.7.1994 at Karachi and out of said wedlock children namely Mubarak, Sanober, Samar , Muhammad Amjad and Faisal were born; Wife of petitioner changed her character and started illicit relations with some other people in absence of petitioner which resulted in pronouncement of written divorce by petitioner on 15th July 2010 which he (petitioner) sent through registered post. The petitioner also learnt that his wife contracted marriage with some one else. Wife of petitioner started registration of criminal cases and petitioner spent all his money in frivolous litigation, instituted by Mst. Nazeeran, the ex-wife of petitioner. Per petitioner, she had taken all gold articles, cash and other valuable house hold articles from house of petitioner for which petitioner also lodged FIRs but in vain. Mst. Nazeeran also instituted a family suit No.2534/2011 before court of XX Civil and Family Judge, Karachi East for recovery of past, present and future maintenance of minors, dower amount and dowry gift articles of his entire family members. Petitioner claims to be having no source of income and doing his labour as mason and some time he remains out of work hence he is not in a position to give any single penny to his ex-wife who is causing mental torture to petitioner and presently per petitioner he is not in a position to give maintenance to his ex-wife.

3. Having asserted so, he prayed that: a) That, this Honourable Court may graciously be pleased to pass necessary orders adjusting the petitioner as insolvent under the provision of Insolvency (Karachi Division ) Act of (III of 1909) in view of his financial position and crises; b) That this Honourable Court direct the Official Assignee of this Honourable Court issue necessary certificate in this regard; c) To grant protection order for suit No.2534/2011 pending in the court of XX civil and family Judge Karachi East for recovery of past, present and future maintenance of minors, dower amount and dowry gift articles, if any; d) Any other relief that this Honourable Court may deems fit and proper under the circumstances of the case in hand; e) To award cost of the petition; The perusal of the record shows that on 12.03.2014 this court ordered as: 'Notice to learned Official Assignee before whom the petitioner may appear so that the relevant formalities can be complied with. Adjourned to a date in office.' In response to above, the petitioner appeared before the Official Assignee where his statement was recorded. The Official Assignee submitted in writing. The operative part thereof is reproduced hereunder:- "

6. That Official Assignee respectfully submits that the petitioner has not carried out any business, he has not suffered any losses in any business, hence in the instant case the provisions of Insolvency (Karachi Division) Act are not attracted therefore no certificate can be issued as required under sub-rule (2) of Rule 586 in favour of petitioner and Official Assignee prays that the petition of the petitioner may be dismissed."

4. The record further reveals that on 20.3.2014 the matter came up for hearing and an order was passed. The operative part thereof, being conducive, is referred hereunder:- "Learned official assignee submits that he cannot issue any certificate under Rule 586(2) of Sindh Chief Court Rules as requirement of such and also requirement of Section 15(3)(a) of Insolvency Act, 1909 have not been fulfilled. He submits that unless such certificate is issued, further proceeding cannot take place. Learned Official Assignee has relied upon 2014 CLC 1705 and PLD 2012 Sindh

522. Learned Counsel for the petitioner submits that he has specifically mentioned the cause of filing of these proceedings which is judgment passed in Suit No.253/2011 in which Execution Application No.25/2015 has been filed and Petitioner apprehends that since has no means to satisfy such decree he can be arrested by the court and, therefore he has filed these proceedings for protection. Learned Official Assignee submits that Petitioner should approach the Court having jurisdiction under Insolvency Act 1820(1920). Mr. Zeeshan Abdullah is appointed as Amicus Curiae to assist the court on above question. Office is directed to send copy of these proceedings and also this order to Mr. Zeeshan Abdullah."

5. Learned counsel for the petitioner, argued that petitioner has no source of living/incoming and since the decree is pending for execution before Family Executing Court therefore, protection order be passed.

6. On the other hand, learned Official Assignee opposed the maintainability of the petition while saying that there is no compliance of mandatory provisions of Section 15(3) of Insolvency (Karachi Division Act (III of 1909) so also of Rule 586(1) Sindh Chief Court Rules (Original side) hence petition is meritless.

7. Mr. Zeeshan Abdullah, learned Amicus Curiae also stated that petition is not maintainable while referring to case laws, reported in PLD 2012 Kar. 522, 2014 CLC 1705 and relevant provision of Sindh Chief Court Rules. 8. 1 have heard the counsel for the petitioner, Official Assignee and amicus curiae.

9. Before proceeding further, I would like say that though the Insolvency (Karachi Division) Act, 1909 provides a mechanism for 'creditor' and 'debtor'. The terms 'creditor' and 'debtor' are defined by Section 2(a) & (b) of the Act as: a) 'creditor' includes a decree holder; b) 'debt' includes a judgment-debt, and 'debtor' includes a judgment-debtor. The Insolvency (Karachi Division) Act 1909, revolves round the 'creditor' and 'judgment-debtor'. It is necessary to mention that the Act provides an exception to the general principle whereby a 'decree holder' is legally entitled for satisfaction of the decree which do include satisfaction by attachment; sale of movable and immovable property of judgment-debtor and even arrest of judgment-debtor. Worth to keep in mind that one earns the status of 'creditor' after due determination of such rights by a competent court of law hence the law of Insolvency normally should not be allowed to be used as a sword to deprive a 'creditor' from his legally earned right (decree) which may have been result of a long agony of trial. Therefore, the legislature have made presentation of such petition subject to certain criteria (grounds) which are described in Section 11 and 14 of the Act which are referred hereunder:- '

11. Restrictions on adjudication. The Court shall not have jurisdiction to make an order of adjudication, unless

a) the debtor is , at the time of the presentation of the insolvency petition, imprisoned in execution of decree of a Court for the payment of money in any prison to which debtors are ordinarily committed by the Court in the exercise of its ordinary original jurisdiction; or b) the debtor, within a year before the date of the presentation of the insolvency petition has ordinarily resided or had a dwelling house or has carried on business either in person or through an agent within the limits of the ordinary original civil jurisdiction of the Court; or c) the debtor personally works for gain within those limits; or d) in the case of a petition by or against a firm of debtors the firm has carried on business within a year.....

14. Conditions on which debtor may petition.-(1) A debtor shall not be entitled to present an insolvency petition unless - a) his debts amounts to five hundred rupees, or b) he has been arrested and imprisoned in execution of the decree of any Court for payment of money, or c) an order of attachment in execution of such a decree has been made and is subsisting against his property; The above provisions prima facie affirms that it is giving a right to judgment-debtor to seek protection against the decree (creditor) but while presenting such petition the creditor per Section 15 the Act is legally obliged/bound to give details of his all assets. The object is further evident from Rule 586 of Sindh Chief Court Rules (OS) which reads as:- "

586. Insolvent to lodge all books and with the official assignee. (1) Every debtor, who files a petition, shall lodge forthwith in the office of the official assignee in addition to any books produced before the court under section 15(3)(a) of the Act all papers, writings and vouchers relating to his estate with a list thereto signed by himself and also a statement of his movable and immovable property. If the debtor is in jail such list and statement as aforesaid shall be forwarded by the jailor." From above, it is clear that one, seeking his/her adjudication as insolvent shall not be entitled such adjudication merely by uttering that he/she is insolvent but is required to submit details of estate. By submitting such details the 'debtor' has to show his intention that the petitioner deliberately does not want to defeat a lawful 'decree' but despite willingness to satisfy creditor his means are not sufficient. The certificate of Official Assignee would determine the rights and liabilities of the 'creditor' and 'debtor' which even include an authority to Official Assignee to deal with property or business of debtor for benefit of creditor. The mandatory requirement is further evident from Sub-rule (2) of Rule 586 which says that failure of debtor to make compliance of Rule 586(1) shall relieve the Court from passing any Order on such petition. For convenience the same is reproduced hereunder:- "Certificate of Official Assignee.-(2) On the debtor complying with the provisions of sub-rule (1) of this rule, the Official Assignee shall give to, the debtor a certificate certifying the same, and no order of adjudication shall be made on the petitioner unless such certificate is produced." Since, in the instant matter the present petitioner remained actively litigating with the 'creditor' (his ex-wife) which is evident from lodgment of number of FIR(s) from either sides which normally an insolvent can't. The petitioner, being an admitted father of children, cannot avoid his legal, moral and bounden obligation i.e. to maintain his children. Worth to add here that such obligation even does not require one (child) to earn the status of 'creditor' first for compelling his/her father to provide maintenance. Therefore, I would say that a father would not be legally entitled to seek exemption to his obligation to maintain his child even under cover of this Act because it is confined to 'creditor' and 'debtor'. Since, as already said, a demand of maintenance of child from father does not require any intervention of court even. In FIR(s), lodged by petitioner, he claimed to be possessing house and valuable articles but he produced no record/details thereof before the Court, as required by Section 15 of the Act, nor before the Official Assignee. There is nothing available on record except bald words of the petitioner that he has no means which, I can safely say, would not be sufficient the petitioner to seek his adjudication as 'insolvent'.

10. The prima facie of the petitioner to make compliance of the Section 15(3)(a) of the Act and that of Rule 586(1) of Sindh Chief Court Rules (OS) shall result into dismissal of the instant petition because the sub-rule (2) of Rule 586 of SCCR (OS) has made it clear that without certificate of Official Assignee there shall be no order on the petition. In view of discussion made above, the instant petition is dismissed, while parting, I appreciate assistance given by Mr. Zeeshan Abdullah, learned Amicus Curiae. MH/A-16/Sindh Petition dismissed.