MCB BANK LIMITED Versus EMADUL HASSAN
ORDER
ARSHAD HUSSAIN KHAN, J.--- By this order, I intend to dispose of the application [C.M.A. No. 1227/2017] filed by the defendant under Order XXIV, Rule 1 of C.P.C. read with section 151 of C.P.C. praying therein to allow the defendant to sell the suit property mortgaged with the Plaintiff-Bank upon depositing 100% amount of claim of the plaintiff in respect of all aged Staff House Advance, with the Nazir of this court in remunerative securities.
2. The material facts for deciding instant application as stated therein are that the defendant joined the plaintiff in the month of August 2004 as Head of Internal Audit, for a long term career. In terms of the defendant's employment, the plaintiff granted a sum of Rs.9,000,000/-, as Staff Mouse Advance, to the defendant in the month of April 2005, to be adjusted in 20 years, against future salaries of the Defendant to be given by the plaintiff. The defendant by utilizing the said Staff House Advance and his own funds, purchased the suit mortgaged property and renovated the same. Later on, due to the reasons mentioned in the defendant's pleadings, the defendant was forced to resign; resultantly the defendant could not repay the Staff House Advance, which was to be recovered by the Plaintiff out of future salaries of the defendant. Hence, the plaintiff filed the present suit against the defendant for recovery of Rs.9.196,720/- which includes the Staff House Advance of Rs.8,876,465/- and the defendant also filed cross-suit bearing No.986/2007 for damages against loss of career and salary amount for Rs.51,464,048/-. The said suit is connected with the instant suit and after recording evidence now the matter is at the stage of arguments. However, for some personal reasons and pressing needs the defendant wants to sell the mortgaged property upon deposit of remunerative securities in respect of 100% claim of Staff House Advance with the Nazir of this court.
3. Upon notice of this application, the plaintiff filed counter-affidavit denying the contentions of the same has stated that the defendant occupied the mortgaged property, which is in his use and occupation, however, after some time, he left the services on his own accord and filed the suit for damages against the Plaintiff-Bank. It has been further stated that the offer to deposit 100% of claim amount against the redemption and the intention to sell the property is misconceived and not acceptable as the prices of the property have gone escalated. It has also been stated that this offer of the defendant be taken as admission on the part of the defendant in respect of the claim of the plaintiff in the instant: suit. It has been further stated that the application is belated one and is repugnant to fair trial and justice/equity and as such the same is liable to be dismissed.
4. The defendant in his affidavit in rejoinder while denying the contents of the counter affidavit has reiterated the contents of his application and affidavit in support thereof.
5. Learned counsel for the defendant during the course of arguments re-iterating the contents of the application, affidavit in support thereof and affidavit in rejoinder, has contended that his application is maintainable as the matter pertains to property which is mortgaged as security against the Staff House Advance. He further argued that the suit property was mortgaged as a security against the Staff House Advance, which was to be recovered from future salaries of the defendant and the mortgage property can be substituted through tangible securities. It is also argued that this Court under clause (e) of section 94 of C.P.C. has the power to make such interlocutory order. He further argued that though in the application he has offered to deposit the amount in respect of Staff House Advance only, however, without prejudice to his rights and subject to the final outcome of the present proceedings in order to secure the claim of the plaintiff in the instant suit, he is ready to deposit the whole amount as claimed by the plaintiff in the suit and not only this he has also shown his willingness to deposit Rs.10 million, which amount will be over and above the claim of the plaintiff together with markup at bank rate, if calculated, till date. Learned counsel in support of his stance has also relied upon the following case law:
(i) PLD 2003 Pesh. 24 National Bank of Pakistan Haripur v. Muhammad Riaz Khan.
(ii) AIR 1935 Oudh 93 Brig Gopal and another v. Mt. Masuda Begum
(iii) 1995 CLC 1982 National Bank of Pakistan v. Paradise Trading Company and others
(iv) PLD 2010 SC 878 Sadaqat Ali Khan through LRs. and others v. Collector Land Acquisition and others
(v) 2015 SCMR 319 Najm Koreshi v. Chase Manhattan Bank now Muslim Commercial Limited Lahore and others
(vi) 1990 SCMR 874 Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others
6. On the other hand, learned counsel for the plaintiff, during the course of arguments, has retreated the stance taken in the counter affidavit to the restoration application. He has also contended that the application is not maintainable as any payment under the provisions of Order XXIV, Rule 1, C.P.C., should be unconditional whereas the defendant has offered the payment of amount with condition.
7. I have heard the arguments of learned counsel for the parties and have also gone through the law on the point and the case law cited at Bar.
8. From the record, it appears that the present suit is for recovery of amount. inter alia, Staff House Advance given to the defendant as per the term of employment during his employment with the plaintiff-Bank. For the sake of ready reference prayer clauses of the present suit are reproduced as under:
"It is, therefore, prayed on behalf of the plaintiff that this Hon'ble Court may be pleased to pass a judgment/decree against the defendant as under:-
A. For a sum of Rs.9, 196, 72/- with mark-up at the prevailing rate prescribed by State Bank of Pakistan.
B. Cost of suit.
C. Any other relief as may be deemed appropriate by this Hon'ble Court."
It seems that the defendant through said house advance as well as his other amount, purchased the property in question in his own name and mortgaged with plaintiff as security against Staff House Advance which was to be recovered from the defendant through his future salaries. Since the plaintiff has not sought any relief in respect of mortgaged property, therefore, in the event, if the plaintiff succeeds in the present case a money decree will be passed and not mortgage decree. In the circumstances when the defendant is ready to secure the entire claim of the plaintiff along with markup till date, there appears no prejudice would be caused to the plaintiff if the defendant's application is allowed subject to deposit of amount of the entire claim of the plaintiff in the present case. Accordingly, without prejudice to the case of either party on merits and subject to the final outcome of the present proceedings, instant application is allowed in the following terms:
(i) The defendant is directed to deposit an amount of Rs.10, 000,000/- (rupees ten million only) as security in respect of the claim of the plaintiff with the Nazir of this Court within a period of fifteen days from the date of this order. Nazir, upon receipt of the said amount, shall invest the same in some profit bearing scheme and shall also collect the original title documents of the mortgaged property along with redemption documents from the Plaintiff-Bank. Such exercise shall be completed within a period of fifteen days from the date of deposit of above said amount by the defendant.
(ii) Once the title documents of mortgaged property is received by the Nazir, the same will be released to the defendant upon-- proper verification/identification and on execution of requisite documents in accordance with law. The defendant thereafter will be at liberty to deal with his property as per law.
MH/M-221/Sindh Application allowed.