BANK OF CREDITS AND COMMERCE and others vs ASRAR HASSAN and others

ORDER

' MUHAMMAD NAWAZ ABBASI, J.--- These two connected petitions, involving common question of law and facts, have been directed against the judgment, dated 27-2-2004, passed by a Division Bench of High Court of Sindh, at Karachi, in two High Court appeals arising out of a suit for redemption of mortgage.

2. The short facts leading to these petitions are that respondent No,1, an employee of Bank of Credit and Commerce International, under liquidation, (BCCI), filed a suit for redemption of mortgage of the Property bearing No,E-52, Block 4, Gulshan-e-Iqbal, Karachi and also sought additional reliefs in the form of, (i) decree for Rs,1,35,60,625, (ii) declaration that he is entitled to get the amount of his claim adjusted from the amount of US $15 million, (iii) a mandatory injunction to hand over all the title documents of his property, (iv) a prohibitory injunction to refrain from collecting the title documents of property and (v) alternatively, a preliminary and final redemption decree upon ascertainment of all proper amounts. The petitioners, who were impleaded as defendant in the suit, filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint firstly on the ground that the plaintiff having filed the claim regarding payments of salary and provident fund before the Liquidator in Luxembourg, cannot maintain a suit on the same subject and secondly, the Courts in Pakistan have no jurisdiction to entertain such suit and adjudicate the claim for want of territorial jurisdiction. However, respondents Nos.2 and 3 filing the written statements, contested the suit on merits with assertion that the claim contained in Annexures "A" and "B" to the suit, having no nexus with the main relief of redemption of mortgage sought therein, could not be joined in the suit. The learned trial Judge has passed a preliminary decree in the suit vide judgment, dated 29-11-1997 and H.C.A. Filed by the petitioners was disposed of in the following terms:-- "We would accordingly, allow the appeal to the extent that the preliminary decree shall be suitably modified so as to exclude the respondent No,1's claim for adjustment of provident fund dues. At the same time, we would order that the respondent No,1/plaintiff, would be entitled to file a regular suit claiming such amount or apply' for redemption of mortgage in view of the subsequent development whereby according to Mr. Abrar Hassan, he was no longer bound to repay the amount due against the house loan obtained by him through a global settlement."

3. Learned counsel for the petitioner has contended that the petitioners were neither necessary nor proper party and the High Court of Sindh had no jurisdiction to entertain the suit against them for want of territorial jurisdiction and added that the suit in the present form even against Habib Credit and Exchange Bank Limited was not competent.

' Learned counsel for the respondent, on the other hand, has submitted that since the High Court has left, the question of territorial jurisdiction open in appeal, therefore, the petitioners instead of agitating the matter before this Court in the present petitions may conveniently raise all objections in the regular suit, including the question of jurisdiction before the Court concerned. Learned counsel also submitted that in the facts of the present case the question as to whether a suit can be maintained against the petitioners before the Courts in Pakistan, being a mixed question of law and facts, cannot be decided without recording evidence as BCCI has been liquidated abroad whereas the Liquidator has signed an agreement regarding the liabilities of three branches of BCCI in Pakistan on the merger of these Branches in Habib Credit and Exchange Bank Limited, therefore, notwithstanding the winding up of the BCCI abroad, the suit in respect of liabilities of its branches in Pakistan can competently proceed.

4. In the light of the relevant provisions of law and perusal of the record with the help of learned counsel for the parties, we have not been able to find out, any legal defect in the judgment of the High Court. The preliminary decree passed in the suit for redemption of mortgage was kept intact with the exclusion of claim for the adjustment of provident fund whereas the regular suit in respect of rest of the claim of the respondent is pending before the High Court of Sindh, at Karachi on the original side in which the petitioners may raise all questions of law and facts and in view thereof, the High Court has rightly refrained from dilating on the question relating to the territorial jurisdiction and maintainability of the suit against the petitioners in Pakistan. This may be noted that the question of fact or a mixed question of law and fact, cannot be effectively decided without recording the evidence and learned counsel for the petitioners has not been able to satisfy us that in the facts of the present case, the question relating to the jurisdiction of Courts in B Pakistan to entertain the suit and adjudicate the claim of respondent against the petitioners is patently a question of law. Be that as it may, the expression of opinion on the above question by this Court, at this stage, in either way, may cause prejudice to the case of either party before the High Court in the suit filed by the respondent and effect its adjudication on merits. In the light of foregoing reasons, we do not find any substance in these petitions for interference and consequently, the same are dismissed. .